i Acknowledgments First and foremost, I would like to thank to my supervisor of this LL.M thesis, María Elvira Méndez Pinedo for the valuable guidance and support. I also would like to thank the National University of Iceland for providing me the facilities to complete this project. I would also like to express my gratitude to Juan de Dios Cobo and Philippa Lee, who dedicated their time and effort on helping me during this research. Finally, I would like to thank my parents, Patricia and Jesús, for their understandings and supports on me in completing this research.
Transcript
i
Acknowledgments
First and foremost, I would like to thank to my supervisor of this LL.M thesis, María Elvira Méndez Pinedo for the valuable guidance and support.
I also would like to thank the National University of Iceland for providing me the facilities to complete this project.
I would also like to express my gratitude to Juan de Dios Cobo and Philippa Lee, who dedicated their time and effort on helping me during this research.
Finally, I would like to thank my parents, Patricia and Jesús, for their understandings and supports on me in completing this research.
ii
International environmental protection: exploring the acquis and future challenges of an integrated framework based on ex-ante and ex-post measures.
Table of contents
List of Abbreviations ........................................................................................................... 1
INTRODUCTION ............................................................................................................... 4 1. Reasons and methodology of this thesis ........................................................................ 4
2.1.1. An introduction to environmental damage ............................................................... 9 2. Liability and responsibility ................................................................................................ 9
2.1. Forms of liability: Fault-based liability, strict liability and absolute liability ........... 10 Fault-based liability ...................................................................................................... 10 Strict liability ............................................................................................................... 11 Absolute liability .......................................................................................................... 11
2.2. Private Liability limitations ..................................................................................... 12 2.2.1. Establishing a causal link between the damage and the actor: causation ............... 13
Causa proxima ............................................................................................................. 14 Factual Causation – But for test ................................................................................... 14 Probabilistic causation ................................................................................................. 15
2.2.2. Concrete and quantifiable damage ......................................................................... 16 2.2.3. Access to Justice .................................................................................................... 18
3. Structure of the thesis ................................................................................................. 20 4. Relevance of the research ........................................................................................... 21
PART I: Before the damage occurs - Ex ante measures .................................................... 26
Chapter 1: the acquis of international environmental law before the damage occurs ....... 27 Introduction ................................................................................................................... 27 1. Prevention Principle: harm avoidance ....................................................................... 28
1.1. Introduction .................................................................................................................. 28 1.2. Meaning ........................................................................................................................ 29 1.4. Conclusions of section 1, the prevention principle ....................................................... 31
2. The precautionary approach: action facing uncertainty ............................................ 32 2.1. Introduction .................................................................................................................. 32 2.2. Meaning ........................................................................................................................ 33 2.3. Effects and apliccation of the precautionary principle ................................................. 34 2.4. Conclusions of section 2, the precautionary aproach ................................................... 36
3. Sustainable Development ............................................................................................ 37 3.1. Introduction .................................................................................................................. 37 3.2. Meaning ........................................................................................................................ 37 3.3. Effects and application of sustainable development ..................................................... 39 3.4 Conclusions of section 3, sustainable development ....................................................... 39
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4. Solidarity as cooperation ............................................................................................ 39 4.1. Introduction .................................................................................................................. 39 4.2. Meaning and application .............................................................................................. 40 4.3 Conclusions of section 4, solidarity ............................................................................... 41
PART II- After the damage: Ex Post measures ................................................................. 43 Introduction, public and private liability ....................................................................... 44
Chapter 2: A common basis, the polluters pay principle: .................................................. 46 1. Introduction ................................................................................................................ 46 2. The polluters pay principle regulation ....................................................................... 46
2.1. Problems the polluters pay principle shows. ................................................................ 47 2.2. Case law, the polluters pay principle in practice .......................................................... 48
3. Conclusions of chapter 2, the polluters pay principle ................................................. 49
Chapter 3: States responsibility and liability- Ex post remedies in international public law ........................................................................................................................................... 50
1. Introduction ................................................................................................................ 50 2. Basis for state responsibility and liability: .................................................................. 50
2.1. Sovereignty over natural resources ............................................................................... 51 2.2. No harm ........................................................................................................................ 52 2.3. Conclusions section 2, states responsibility basis ......................................................... 54
3. State responsibility regulation .................................................................................... 54 3.1. Draft Articles on the Responsibility of States for Internationally Wrongful Acts ........ 55
3.1.1. Structure of the Draft ............................................................................................. 55 3.1.2. Main content of the Draft ....................................................................................... 55 3.1.3. Nature of the act from which states responsibility arises ....................................... 56 3.1.4. Imputability ........................................................................................................... 56 3.1.5. Erga omnes obligations ......................................................................................... 57 3.1.6. Who is entitled to invoke state responsibility? ...................................................... 57 3.1.5. Reparation and compensation ................................................................................ 58 3.1.6. Conclusions of subsection 3.1, Draft Articles on the Responsibility of States for Internationally Wrongful Acts. ........................................................................................ 59
3.2. State liability for environmental damage ................................................................. 60 3.2.1.Backround: Preventive Action-Draft Articles in the Prevention of Transboundary Harm from Hazardous Activities ......................................................................................... 60 3.2.2. Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities .................................................................................... 61
4. Case law: a practical example of the problems ........................................................... 63 4.1. Introduction .................................................................................................................. 63 4.2. Inuit Petition ................................................................................................................. 63
4.2.1 The Claimant: Inuit people ..................................................................................... 63 4.2.3 The Petition ............................................................................................................. 65
5. Conclusions of Chapter 3: .......................................................................................... 67
Chapter 4: Civil liability in international law .................................................................... 69 1. Introduction ................................................................................................................ 69
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2. Oil Pollution ................................................................................................................ 70 2.1. Introduction .................................................................................................................. 70 2.2. 1969 Convention on Civil Liability for Oil Pollution Damage amended by the 1992 Protocol. .............................................................................................................................. 71
2.2.1. Scope - Where is the Convention applicable? ........................................................ 72 2.2.2. Assessment of damage - What does the compensation include? ........................... 72 2.2.3. Identifying the polluter - Who is held responsible? ............................................... 72 2.2.4. Exemptions to liability ........................................................................................... 73 2.2.4. Obligation to take out insurance and its effectiveness ........................................... 73 2.2.5. Rights Extinction ................................................................................................... 74 2.2.6. Jurisdiction and recognition of judgements ........................................................... 74
2.3. Conventions establishing international funds for compensation for oil pollution damage ............................................................................................................................................. 75
3. Nuclear pollution ........................................................................................................ 76 3.1. Introduction .................................................................................................................. 76 3.2. 1960 Paris Convention on Nuclear Third Party liability in the Field of Nuclear Energy ............................................................................................................................................. 77
3.2.1. Scope -Where is the Convention applicable? ......................................................... 77 3.2.2. Assessment of the damage - What does the compensation include? ...................... 78 3.2.3. Identifying the polluter - Who is held responsible? ............................................... 79 3.2.4. Exemptions to liability ........................................................................................... 79 3.2.5. Obligation to take out insurance and its effectiveness ........................................... 79 3.2.6. Rights Extinction ................................................................................................... 80 3.2.7. Jurisdiction and recognition of judgements ........................................................... 80
5. Conclusions of chapter 4. ............................................................................................ 85 5.1. The financial guarantees, the limitation of liability and the coverage of the concept of damage. ............................................................................................................................... 85 5.2. Channelled liability ...................................................................................................... 86 5.3. Coverage of ecological damage and damage to the common goods ............................ 86 5.4. Specific instruments for spefic kinds of pollution ........................................................ 87 5.5. Lack of signatores ........................................................................................................ 88
Chapter 5: International legal framwork regarding criminal and administrive libility arising from environmental damage .................................................................................. 89
1. Introduction ................................................................................................................ 89 1.1. An introduction to environmental crime ...................................................................... 90
4. Illegal, unreported and unregulated fishing ............................................................... 93 5. Conclusions of chapter 5 ............................................................................................. 94
CHAPTER 6: European adquis regarding liability for environmental damage ............... 95 1. Administrative Law - Directive on environmental liability ........................................ 96
1.1. Introduction .................................................................................................................. 96 1.2. Scope of the ELD ......................................................................................................... 96 1.2.1. Diffuse pollution ....................................................................................................... 97 1.2.2. Personal Scope .......................................................................................................... 97 1.2.3. Material Scope ........................................................................................................... 97 1.2.4. Temporal scope ......................................................................................................... 98 1.3. The administrative liability scheme settled by the ELD ............................................... 98 1.3.1. Strict liability ............................................................................................................. 98 1.3.2. Fault-based liability ................................................................................................... 99 1.3.3. Features of the liability scheme set by the ELD ...................................................... 100
1.3.3.1. Obligations arising from the damages .............................................................. 100 1.3.3.2. Exceptions ........................................................................................................ 100 1.3.3.3. Limitation of liability and financial guarantees ................................................ 101 1.3.3.4. Implementing the ELD ..................................................................................... 101
2.2. Rome II - determining the aplicable law in cases of environmental damage ............. 103 2.2.1. Introduction and scope of Rome II .......................................................................... 103 2.2.2. Concepts and meaning in Rome II - Damage and the event that gives the rise to the damage .............................................................................................................................. 104
2.2.2.1. Damage and environment ................................................................................. 104 2.2.2.2. The event that gives rise to the damage ............................................................ 105
2.2.3. The applicable law ................................................................................................... 106 2.2.3.1. The general rule, lex loci damni. ....................................................................... 106 2.2.3.2. Victim’s election of the applicable law ............................................................. 107 2.2.3.3. Article 14- Possibility of agreement regarding the applicable law ................... 108 2.2.3.4 Situations not explicitly dealt with in Rome II .................................................. 108
A) Damages with no connection with the state jurisdiction ....................................... 108 B) Simultaneous damages .......................................................................................... 109
2.2.3.5. Article 16 - Overriding mandatory provisions .................................................. 110 2.2.3.6. Article 17 - Rules of safety and conduct ........................................................... 110
2.2.4. Conclusions Rome II ............................................................................................... 111 2.2.4.1 The Scope of Rome II ........................................................................................ 111 2.2.4.2. Concepts in Rome II ......................................................................................... 112 2.2.4.3. The Applicable law under Rome II ................................................................... 112 2.2.4.4. General conclusions .......................................................................................... 113
2.3. Brussels I (recast)- Rules on the jurisdiction of the courts and recognition and enforcement of judgments ............................................................................................ 114
2.3.1. Scope of Brussels I recast .................................................................................... 114 2.3.2 Forum according to Brussels I recast .................................................................... 114 2.3.3. Conclusions of Brussels I recast .......................................................................... 115
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3. Criminal liability .......................................................................................................... 115 3.1. Introduction ........................................................................................................... 115 3.2. Directive on the protection of the environment through criminal law .................. 116
3.2.1. Scope of the Directive 2008/99/EC ......................................................................... 116 3.2.2. Substantive Provisions of Directive 2008/99 – which acts consitute an environmental crime? ................................................................................................................................ 117 3.2.3. Conclusions of the Directive on the protection of the environment through criminal law ..................................................................................................................................... 118
4. Conclusions of Chapter 6 ....................................................................................... 119
Chapter 7: General conclusion ........................................................................................ 121 1.1. State Responsibility and liability: ........................................................................... 121 1.2. Private entities’ liability ............................................................................................. 122
2. Some final thoughts ....................................................................................................... 124
ANNEX I .......................................................................................................................... 126
Table of cases (in chronological order) ............................................................................ 128
Literature ......................................................................................................................... 138
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LIST OF ABBREVIATIONS Art. Article
BGH Bundesgerichtshof (Supreme Court in the Federal Republic of
Germany)
BGHZ Bundesgerichtshof Judgment
C Case
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act (United States)
CITES Convention on International Trade of Endangered Species of
Wild Fauna and Flora
Conf. Conference
COM Commission
COP Conference/Conferences of the Parties
CO2 Carbon dioxide
CTS Consolidated Treaty Series
CV Vienna Convention on the Law of Treaties
Dec. Decision
Doc. Document
EAC East African Community
EEA European Economic Area
Ed. Editor
Edn. Edition
Eds. Editors
e.g. Exempli gratia (example)
ECJ European Court of Justice
EU European Union
EURATOM Treaty Establishing the European Atomic Energy Community
et seq. et sequente (and the following)
etc. Etcetera
FAO Food and Agriculture Organization of the United Nations
ForstG Forstgesetz (Forestry Act, Republic of Austria)
GHG Greenhouse gases
2
IAEA International Atomic Energy Agency
Ibid Ibídem
ICAO International Civil Aviation Organization (United Nations
agency)
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social, and Cultural
Rights
IJC International Court of Justice
ILC International Law Commission
ILM International Legal Materials
IMO International Maritime Organization (United Nations agency)
IPCC Intergovernmental Panel on Climate Change
ITTO International Tropical Timber Organization
IUCD International Union for Conservation of Nature
LNTS League of Nations Treaty Series
MEA Multilateral Environmental Agreement
NGO Non-Governmental Organizations
NY New York, United States of America
OECD Organization for Economic Cooperation and Development
OECD NEA Organization for Economic Cooperation and Development
Nuclear Energy Agency
OGH Obersten Gerichtshoft (Supreme Court in the Republic of Austria)
OJ L Official Journal of the European Union
OPRC International Convention on Oil Pollution Preparedness,
Response and Co-operation
OAS Organization of American States
OAU Organization of African Unity
pp. Pages
PPP Polluters Pay Principle
Res. Resolution
TFEU Treaty on the Functioning of the European Union
UK United Kingdom
UN United Nations
3
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Programme
UNFCCC United Nations Framework Convention on Climate Change
UNGA United Nations General Assembly
UNTOC United Nation Convention against Transnational Organized
Crime
UNTS United Nations Treaty Series
US United States of America
USCA United States Code Annotated
Vol. Volume
WB World Bank
WRG Wasserrechtgesetz (Water Act, Republic of Austria)
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INTRODUCTION
Chernobyl, Bophal, Prestige, Erika or Exxon are names that remind us of enormous
environmental catastrophes 1 . They caused public indignation and stressed the
importance of taking care of the environment.
Since the ‘60s, governments2 all over the world, and international and national
organizations such as the United Nations have been aware of the increasing concern of
the population for ecological issues. Consequently, environmental-related matters
gained prominence in the international agenda 3 . As a result of this interest,
environmental regulations have developed considerably over the last 40 years4. In
general, regulation has been contained in soft law5, and has focused on preventive,
precautionary measures and cooperation among states in order to protect and conserve
the planet6. However, agreements that intend to establish liability or responsibility for
States and/or private economic operators have been limited7.
1. REASONS AND METHODOLOGY OF THIS THESIS
Although environmental law has developed hugely over the past five decades, there are
still many questions that need to be answered. This research aims at clarifying the role
of ex post measures within environmental law, that is to say, measures taken after the
damage occurs. This includes studying their scope, and determining how these measures
can help to overcome the challenges faced by day-to-day problems in environmental
law.
The rapid and constant degradation of environmental goods, due to the
inefficacy of ex ante measures to prevent the current environmental crisis, has given an
1 See European Commission, Communication to the Council and Parliament and the Economic and Social Committee: Green Paper on Remedying Environmental Damage of 14th May 1993, COM(93) 47 final. 2 See for example the Clean Air Act 1956 C. 52 4 and 5 Eliz 2, Act repealed (27th August1993) by 1993 c.11, ss.67(3), 68(2), Sch.6, developed by the UK in 1956. Available online at: http://www.legislation.gov.uk/ukpga/Eliz2/4-5/52/enacted 3 BEYERLIN & MARAUHN (2011) pp. 3 and 4. 4 Ibid. 5 In international law, there is a source hierarchy; soft law would be in the bottom of the pyramid, as it has not binding character, parties to such agreement would not be bound by the terms established therein. On the top of the pyramid would be jus cogens rules. See SHELTON (2006) pp. 291 to 323. 6 See, inter alia, in the 1972 Declaration of the United Nations Conference on the Human Environment, Stockholm, UN Doc A/CONF.48/14 and Corr.1, 11 ILM 1416 and 1992 United Nation Conference on Environment and Development, Rio de Janeiro, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876. 7 BEYERLIN & MARAUHN (2011) pp. 3 and 4.
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increasing role to ex post measures, such as liability regarding environmental damage.
One of the main ideas behind this study is that ex ante measures effectively avoid
environmental harm, ex post measures should be taken into consideration as an
admissible (and advisable) way to fight against the depletion of the environment.
It is important to note that the development of liability is recent8, and there are
still many uncertainties around the concept that need to be clarified. For example, at
international level, in most cases, there is uncertainty with regards to the applicable law
or the governing jurisdiction9 where liability claims can/should be resolved.
1.1. INTEGRATED APPROACH
The research focuses on the different grounds or perspectives from which
environmental damage can be tackled. Ex ante measures, such as preventive action, and
ex post measures, such as criminal liability, are complementary and, jointly, can raise
the level of environmental protection. Although this research is focused on how ex post
measures could contribute to stopping environmental degradation, it is not intended to
minimize the importance ex ante measures or push them into the background. Ex ante
and ex post measures are the binomial of the international legal system protecting the
environment, therefore it is relevant to explain the main tools that protect the
environment before the damage takes place. An integrated approach means, above all,
making ex-ante and ex-post measures operate together like the two sides of a single
coin.
In the international arena, environmental law is generally part of public law, but
it is not alone in addressing disputes regarding liability arising from environmental
harm. Furthermore, instruments regarding liability within international private law have
a major role, and do extend the efficiency of the whole system of environmental
protection.
Supranational legal systems, such as the European Union, and domestic/national
legal systems also deal with environmental harm and arising liability matters. There is a
wide variety of legal instruments tackling the key problems that arise within
environmental damage at every geographical level. The solutions provided by these
systems can be valuable, as they have the potential to be adapted or to inspire other
solutions that may work at an international level.
8 See HINTEREGGER & OTHERS (2008) pp. XVII, “Preface”. 9 See FAURE & YING (2008) pp. 1.
6
For these particular reasons, the research takes an integrated and comparative
approach that aims to study the possibilities that liability offers, within private and
public law, focusing on the different remedies available to environmental harm at
different geographical levels.
Some of the legislation and case law described can be included in several
categories, which means that some instruments play a relevant role, for example, at the
international and regional level simultaneously. A good example of this issue is the
polluters pay principle, which includes measures for environmental protection before
and after the damage occurs. These measures can fall into the scope of public law (such
as taxation or administrative law) or private law (such as civil liability). The polluters
pay principle is regulated at all the geographical levels (international, supranational and
domestic level). The table10 below references some of the instruments that are analysed
in the following chapters, colouring the areas in which that particular instrument plays a
role:
This research also makes brief references to other legal areas that play a role in
the response to environmental damage, such as human rights. For example, Part II,
Chapter 3, considers an Inuit petition to the United States that concerns environmental
transboundary harm. However, the claimant invokes a breach a breach of human rights
arising from an environmental problem, climate change. As such, this petition provides
an example of the problems that can arise out of state responsibility, and shows how
remedies sought for environmental damage can also have an impact on human rights.
10 Table made by the autor of the research.
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1.2. COMPARATIVE APPROACH
This research also compares differing and similar approaches to several aspects of the
regulation liability at different geographical levels, such as the European Union, the
United States or the national legislation of France. However, the comparison is
essentially focused on the European Union remedies for environmental damage. The
European model, while not perfect, shows an interesting example of progress in the
field of environmental damage, which involves working collaboratively and sharing
sovereign powers. The European legal framework tackles environmental damage ex
ante and ex post, from private and public law, using administrative, civil and criminal
remedies.
Through the integrated approach a wide range of remedies available are
displayed and, taking as a basis these remedies, through the comparative approach, the
research points out that, in general, liability schemes in regard to environmental harm
face the same problems at all the geographical levels, but in some particular cases,
valuable solutions can be found which can be adapted and applied at international level.
2. KEY CONCEPTS: ENVIRONMENT AND LIABILITY The following descriptions provide a brief introduction to key concepts of the research:
environment and liability. This provides a background that that helps to understand the
questions that arise from the research and the different responses available to face
environmental harm.
2.1. ENVIRONMENT
Given the breadth of the concept, it is useful to determine what is included in
"environment" within international environmental law. The concept has more than one
meaning; the Oxford English Dictionary identifies two different meanings:
“1. The surroundings or conditions in which a person, animal, or plant lives or
operates.
2. (The environment) the natural world, as a whole or in a particular geographical
area, especially as affected by human activity.”
In the scope of this research, reference is predominantly made to the second
definition. However, “the environment” could also be defined in different ways and
8
from different approaches11, and it is important to understand that there is no universally
accepted definition. Some definitions are restricted to natural resources, such as air, soil,
flora and fauna, water and their interaction, while broader definitions include values
attached to the environment such as aesthetic value or the opportunities related to it.12
From a legal perspective, different legal materials give either broad or strict
definitions. Some legal instruments pursue the protection not only of natural resources
but also of different values associated with the environment. A wide definition of
“environment” can be found in the Protocol on Environmental Protection to the
Antarctic Treaty13. This reads as follows: “the protection of the Antarctic environment
and dependent and associated ecosystems and the intrinsic value of Antarctica,
including its wilderness and aesthetic values and its value as an area for the conduct of
scientific research (…)”. Other legal materials follow more restricted definitions of
“environment”, focusing on the protection of natural resources. For example, Principle
2 of the 1972 Declaration of the United Nations Conference on the Human Environment
(also called Stockholm Declaration)14 refers to “air, water, land, flora and fauna [...]”.
A similar but wider approach is followed in the Aarhus Convention15; Article 2(3)(a)
defines the concept of environment as "air and atmosphere, water, soil, land, landscape
and natural sites, biological diversity and its components, including genetically
modified organisms and the interaction between these elements.” Other instruments,
such the 1982 Convention on Law of the Sea16, use the term “environment” without
providing a definition.
To conclude, the concept of environment always makes reference to natural
resources, though elements such as genetically modified organisms or those that are
man-made could also be included in the definition of this concept. Wider definitions of
11 SANDS, & PEEL (2012) pp. 13 to 15. 12 See for example the Commentaries of Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities. Official Records of the United Nations General Assembly, fifty-eight session (1st May – 9th June and 3rd July -11th August 2006), UN DOC.A/61/10. Available online at: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_10_2006.pdf 13 1991 Protocol of Environmental Protection to the Antarctic Treaty, ILM, 30. 14 1972 Declaration of the United Nations Conference on the Human Environment, A/CONF. 48/14 and Corr.1, 11 ILM 1416. 15 1999 United Nations Economic Commission Convention on Access to Information, Public Participation, in Decision-Making and Access to Justice in Environmental Matters by the for Europe, 2161 UNTS 447, 38 ILM 517. 16 1982 United Nations Convention on Law of the Sea, 21 ILM 1261.
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the environment also involve values that are attached to it. Some legal instruments use
the term in a general manner, without providing a definition, in order to address the
rules governing the relationship between the environment, its elements and human
activities.
2.1.1. An introduction to environmental damage
Environmental damage can be defined as a detrimental impact or an adverse change to
the environment. Different legal materials follow different approaches to damage. Each
concrete instrument can cover two main kinds of damage: damage suffered by humans
or their property, for example, loss of life, personal injury, loss of profit, etc. and
damages to the environment regardless to their connection to legal entities, such as the
aesthetic value or the intrinsic value of the environment. The coverage of term
“damage” is especially important in cases of pure ecological damage, where there are
not direct victims; the damage is suffered by a common good -res communis omnium-
that does not belong to anyone but on which there is a general interest17. Some
instruments cover both kinds of damage18, while others are focused in one specific
kind19.
Once environmental damage is caused, ex post measures, such as penalties,
remedial measures or compensation, come into play.
2. LIABILITY AND RESPONSIBILITY
The root of modern liability can be found in Roman law, in the concept of sic uture tou
ut alineum non laedas, which can be translated as “every entity should be liable of its
own acts, preventing from causing damage to others”20. Liability is generally defined as
“the state of being legally responsible for something”21, while responsibility usually
entails a wrongdoing or noncompliance22. Both terms are very close and are sometimes
17 PRONTO & WOOD (2010) pp. 438. 18 See for example Article 2(7) of the 1993 Council of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, CETS No.: 150, 32 ILM. 480. 19 See for instance Article 2(1) of the Directive 2004/35/CE of the European Parliament and of the Council 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. 20 PERCIVAL (2010) pp. 1. 21 Oxford Dictionary definition. 22 BEYERLIN & MARAUHN (2011) pp. 359 to 361, SAXLER & OTHERS (2015) pp. 117 and 118, DOUHAN (2013) pp.830 to 837, FAURE & YING (2008) pp. 320 et seq., BARBOZA (2010) pp. 20 and 21 and LOUKA
(2006) pp. 477 and 478.
10
confused23. For the purpose of this research, liability is taken as a broader concept,
which makes reference to lawful and wrongful acts, while responsibility will make
reference only to wrongful acts24. When liability and/or responsibility arise, this usually
entails an obligation to repair or compensate the victim for the damage caused25.
From the perspective of environmental law, individuals, or legal persons, and
states can be held liable for environmental damage. Private entities can be legally
responsible on different grounds26. There are three main forms of law enforcement
responses to environmental damage: civil responses, administrative responses and
criminal responses27. States can also be liable or responsible for environmental damage,
under very particular circumstances28 laid down in Chapter 3 of this research.
2.1. Forms of liability: Fault-based liability, strict liability and absolute liability
At every geographical level (international, supranational and domestic), depending on
the presumptions of liability and the possibilities of defence, there are three main
approaches to liability: fault-based liability, strict liability and absolute liability. At each
geographical level, each legal instrument may follow variations of these forms of
liability. The aim here is not to provide an exhaustive definition of each form, but to
introduce them to the reader by highlighting their main differences.
Fault-based liability
Under a fault-based liability system, an entity is liable if it fails to act as a “reasonable
person of ordinary prudence”, and it can be concluded that fault, negligence or
recklessness are necessary for liability to arise. The underlying duty is to “act with
reasonable care”29, and the claimant usually has to prove the fault of the defendant. An
example of a faulty-based scheme is discussed on Chapter 6, the Directive
23 SAXLER & OTHERS (2015) pp.117 and 118. 24 Similar approaches are followed by BEYERLIN & MARAUHN (2011) pp. 359 to 361, SAXLER & OTHERS (2015) pp. 117 and 118, DOUHAN (2013) pp.830 to 837, FAURE & YING (2008) pp. 320 et seq. and BARBOZA (2010) pp. 20 and 21. 25 BEYERLIN & MARAUHN (2011) pp. 359 to 361. 26 FAURE & YING (2008) pp. 2 and PINK (2013) pp. 5. 27 Ibid, see also MCKENNA (1995) Study of Civil Liability Systems for Remedying Environmental Damage, Final Report EU White Paper on Environmental Liability of 31st December 1995, Available online at: http://ec.europa.eu/environment/legal/liability/pdf/civiliability_finalreport.pdf 28 BEYERLIN & MARAUHN (2011) pp. 359 to 361 29 COLEMAN & MENDLOW (2010).
11
2004/35/CE30, which lists a number of activities that are subject to a fault-based liability
system31, meaning that the polluter is to be held liable when the damage or imminent
threat is caused due to his fault or negligence.
Strict liability
Under a strict liability scheme, the polluter is to be held liable if the damage arises and
is attributable to its conduct, regardless of its fault, negligence or recklessness (non-fault
based liability system). The underlying duty is “to not cause damage”32. The concrete
instruments or the even case law would determine whether the defendant must prove
that the damage is not attributable to him (shift of the burden of proof), or if the
claimant needs to provide evidence of the connection between the defendant and the
damage33. An example that is discussed during the research is the Draft Principles on
the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous
Activities34, under which proof of fault in not required in order to establish the
polluter’s liability.35
Some instruments recognise defences such as armed conflicts, war, force majeure or
the act of third parties36 as exemptions to liability.
Absolute liability
Occasionally, absolute liability and strict liability are understood as synonyms37. Both
of these liability systems do not require fault, negligence or recklessness. Some scholars
30 Directive 2004/35/CE of the European Parliament and of the Council of 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. 31 BERGKAMP & GOLDSMITH (2013) pp. 5 and 51 and WOLF & STANLEY (2013) pp. 345. 32 Ibid. 33 At the supranational level, see for example the Directive 2004/35/CE of the European Parliament and of the Council of 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. As stated earlier, it establishes a fault-based scheme for certain activities, but it also list second set of activist to which a strict administrative liability scheme applies, without shifting the burden proof. See also HINTEREGGER & OTHERS (2008) pp. 352. 34 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities. Official Records of the United Nations General Assembly, fifty-eight session (1st May - 9th June and 3rd July -11th August 2006), Un DOC.A/61/10 35 At the international level, for example see the 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, ICAO Doc. 7364/310, UNTS 182, as amended by 1978 Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, ICAO Doc. 7364/310, UNTS 182. This Convention provides a strict civil liability scheme and at the same time, it shifts of the burden of proof. 36 HINTEREGGER & OTHERS (2008) pp. 172. 37 LOUKA (2006) pp. 438.
12
make a distinction between absolute and strict liability, the main difference being that in
absolute liability there is no possible defence, and, once the damage is caused, liability
will always arise, that is to say that there are no exceptions to liability38. The 1971
Convention on International Liability for Damage Caused by Space Objects39 provides
an absolute liability scheme, where the no fault or negligence is require and without
providing exceptions to liability.
2.2. Private Liability limitations
Environmental harm has very peculiar features, such as the nature of the goods
involved, the multiple connections with different countries and individuals, the
difficulties in tracking certain types of damage (i.e.: CO2 emission) and the
impossibility to determine future damage with certainty. These characteristics
frequently lead to the difficulties that arise from liability for environmental damage40.
Cases involving environmental damage happen to be particularly complex due to great
technical difficulties that, sometimes, cannot be overcome. The following describes and
analyses the most notorious difficulties that liability schemes face.
Generally, in order for liability to arise, there are certain requirements: one or
more identifiable entities (polluter), concrete and quantifiable damage and a causal link
between the damage and the identified entity 41. There are also two more elements that
have an important impact on the effectiveness of liability remedies: the connection of
38 HINTEREGGER & OTHERS (2008) pp. 172. 39 1971 United Nations General Assembly Convention on International Liability for Damage Caused by Space Objects, 24 UST 2389, TIAS No. 7762, 10 ILM 965. 40 See for example the Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61, 15th January 2009, at para. 70, which reads as follows: “First, it is virtually impossible to disentangle the complex causal relationships linking historical greenhouse gas emissions of a particular country with a specific climate change-related effect, let alone with the range of direct and indirect implications for human rights. Second, global warming is often one of several contributing factors to climate change-related effects, such as hurricanes, environmental degradation and water stress. Accordingly, it is often impossible to establish the extent to which a concrete climate change-related event with implications for human rights is attributable to global warming. Third, adverse effects of global warming are often projections about future impacts, whereas human rights violations are normally established after the harm has occurred”. 41 See for example the European Commission White Paper on Environmental Liability of 9th February 2000 COM(2000) 66 final, and Recital 13 of the Directive 2004/35/CE of the European Parliament and of the Council of 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. See also and FAURE, PEETERS, & OTHERS (2011) “Preface”.
13
damage with the territorial jurisdiction of a particular state and the national regulation in
regard to access to justice and remedies42.
All the above requirements are interconnected and must be observed as a whole,
in order to consider all the elements that are involved, and to ensure that conclusions
and proposals are consistent. It is important, though, to understand that liability is an
instrument, a social institution that does not act in vain, but rather aims to act in
accordance with human goals and to satisfy the needs of human beings. As such, it is
adaptable over time, depending on the different situations that may occur43.
This research analyses the current situation. However, it should be taken into
account that technological advances may modify the situations described.
2.2.1. Establishing a causal link between the damage and the actor: causation
The causal link is an essential element within liability44. It can be defined as the link
between an actor’s behaviour and the harmful effect suffered by another entity45. Once
causation is successfully established, two of the requirements have been determined: the
entity that is to be liable for the damage (ie. the polluter) and how its action is related to
the damage caused (causal link). For liability to arise, it is necessary to identify a
genuine link between the action or omission46 that caused the damage and the entity that
is pointed to as liable for the damage; evidence of this causal relation is needed for
liability to arise 47 . Note that determining causation is the greatest obstacle in
establishing legal liability48, usually there is not a unique cause, so several causes need
to be evaluated to determine which causes are significantly linked to the damage.
The establishment of the causal link is tested through causation theories, which
determine, from a legal perspective, if the action caused the subsequent damage.
Causation theories are numerous and can sometimes overlap. Doctrine and literature in
regards to causation is large, on John Fleming words, “Causation has plagued courts
42 MULLIER (2010) pp. 113 and 114 and FAURE &YING (2008) pp. 14 to 18. 43 CANE (2005) pp. 205. 44 BERGKAMP (2001) pp. 189. See also HINTEREGGER & OTHERS (2008) pp. 352 and MOORE (2010) pp. 20. 45 ANONYMOUS (2015) pp. 2256. 46 When an individual has a duty to take action, the omission of such duty may entail liability. See BERGKAMP (2001) pp. 281 and MOORE (2010) pp. 129 and 130. 47 Ibid. 48 CANE (2005) pp. 183-184. In reference to criminal law, see WHITE & HECKNBERG (2013) pp. 22.
14
and scholars more than any other topic in the law of torts” 49. Notwithstanding,
causation also plays a very important role within criminal law. Furthermore, It is
necessary to take into account that many domestic systems provide a free evaluation of
the evidence, and therefore the authority-exercising jurisdiction plays a key role in the
assessment of the proof.50 Some of the most popular theories are briefly introduced
below:
Causa proxima
The causa proxima selects acts that are relevant in the causation of the damage. If some
acts result in certain damage, the most relevant act is considered as the cause of the
damage. The question here is whether the action of the defendant is the most relevant
factor that caused the damage or not51. As such, this follows an “all or nothing”
approach that may not be suitable in every situation. For example, there may be cases
where several defendants cause damage and every action is equally relevant for
producing the result52.
Factual Causation – But for test
From a factual approach, an act is considered the cause of the damage if the detrimental
effect would not have occurred in the event that the action had not taken place53. The
question is: “would the damage have occurred irrespective of the defendant’s action?”54.
Factual causation has been criticized55, mainly because it is too simple. It fails to
consider situations where the damage is caused by multiple actions, or in situations
where there is no certainty about what would have happened but for the factor tested56.
49 FLEMING (1998) pp. 218. 50 All EU Member States’ national legislations embrace the principle of free evaluation of evidence. See HINTEREGGER & OTHERS (2008) pp. 644. 51 BERGKAMP (2001) pp. 285 and 286, HART & HORNE (1985) pp. 91 to 101 and MOORE (2010) pp. 101 et seq. 52 Ibid. 53 Conditio sine qua non approach. To this regard, see BERGKAMP (2001) pp. 281 to 285. 54 See BERGKAMP (2001) pp. 281 to 285, ANONYMOUS (2015) pp. 2259 and 2260 and LUNNEY &
OLIPHANT (2013) pp. 206 to 221. 55 Ibid. 56 Ibid.
15
Probabilistic causation
A causal link can also be established on probability grounds. The question is: “how
likely is it that the damage was caused due to the action of the defendant?”57. The
defendant will be held liable according to the portion of likelihood that he contributed to
the damage, avoiding “all or nothing” approaches58. The level of probability that is
required when establishing causation differs greatly from one country to another59.
2.2.1.1. Practical approaches to causations
Sometimes, in environmental damage, the specific circumstances in which the injury
occurred cannot be determined60. The damage may be caused by general activities
related to human life (traffic, industrial activities not especially recognised as polluting
the environment, unsustainable consumption patterns, etc.). Today the world is full of
substances that cannot be easily perceived and whose effects are difficult to know
separately. Under these circumstances, the establishment of causation is complicated,
and it can be almost impossible in cases such as climate change.61 As a result of this, a
number of states have implemented, in their domestic legal systems, mechanisms to
ease the establishment of the causal link62. A common mechanism is prima facie
evidence, according to which the causal link is established if it can be deduced from the
common course of events63.
In other states, the operator is considered best placed to prove that the damage is
not attributable to him, as facts that need to be tested are specifically under the
operator’s control. These kinds of mechanisms establish that the operator must provide
57 BERGKAMP (2001) pp. 287 and 288. 58 Ibid. 59 For instance, in Germany, Austria, Spain and Greece a very high level of probability required, close to certainty. In Belgium, France or Holland, the claimant must proof that defendant caused the harm, without establishing a defined probability level. In other states, such as England or most of the Scandinavian countries a significantly lower level of probability is required, for example, in Finland or Sweden, the claimant must prove that it is more likely than unlikely that the defendant acts caused the damage. However, statistical evidence had generally not been enough to consider that causal link is established in any EU country, requiring additional evidence. See HINTEREGGER & OTHERS (2008) pp. 644 and 645. In other jurisdictions statistical evidence also was not enough for establishing causation, see for example the case of Supreme Court of the United States of America Sindell v Abbott Laboratories (1980). 60 FAURE & YING (2008) pp. 131 and FAURE, PEETERS, & OTHERS (2011) pp. 458. 61 Ibid. 62 Especially in regard to specific kinds of pollution and hazardous activities for the environment, see HINTEREGGER & OTHER (2008) pp. 348 to 351. 63 Ibid.
16
the evidence, reversing the conventional burden of proof. The shift of the burden of
proof can happen in case law64, or be directly provided by substantive regulation65.
When the burden proof is reverted, it is the operator who must prove that there is no
causal link, or that he acted according to the law and, therefore, the damage is lawful.66
Regarding the damages caused by multiple factors, the legal framework of most
European countries provides joint and several liability among the parties held liable.
This applies when the victim can prove that there are several causes and damages,
which are inseparable, that is, the victim cannot prove the extent to which each entity
has contributed to the damage67. At the international level, a similar approach is taken
by 1969 Convention on Civil Liability for Oil Pollution Damage amended by 1992
Protocol68, which is discussed in later chapters.69
2.2.2. Concrete and quantifiable damage
Concrete damages are to be understood as tangible damages that are linked to a concrete
legal entity or a group of them. Some instruments also cover hypothetical damages,
where the threat is caused by the activity of a concrete entity70; therefore causation
needs to be established in order to considered the damage concrete.
Quantifiable damages are those that are measurable in economic/monetary
terms. The characteristics of the environmental damage make the economic assessment
of such damages extremely difficult; the nature of the goods involved (non-market
64 See e.g., Oberster Gerichtshof (Austrian Supreme Court of Justice ) Kupolofen case BGH 18.9.1984, BGHZ 92, 143, 150 f and Bundesgerichtshof (German Federal Supreme Court) Sandstrahl case 11.10.1995, 3 Ob 508/93, JBl 1996, 446. 65 In Austria, for example, strict liability is provided in certain cases where the existence of causation is presumed, this assumption covers, for example, damage to water and to forests. See Article 25(5) Wasserrechtsgesetz (WRG), Water Act, BGBl 1959/215, as amended by BGBl I 2006/123 and Article 54 Forstgesetz (ForstG), Forestry Act, BGBl 1975/440, as amended by BGBl I 2005/87. See also HINTEREGGER & OTHERS (2008) pp. 350. 66HINTEREGGER & OTHERS (2008) pp. 67 to 69. 67 Other national schemes have incorporated similar solutions. For instance, in 2010, the Chinese Civil Code was amended to redesign the non-contractual liability in regard to environmental damage. A strict liability system was established, by which the defendant must prove that he did not cause the damage to the environment. Furthermore, rules for cases of concurrent fault and regulation for hazardous activities were also set out. Japan and the United States (with so-called "Superfund" law) have taken similar approaches to causation problem in regard with environmental damage. See PERCIVAL (2010) pp. 9 to 14. 68 1969 Convention on Civil Liability for Oil Pollution Damage, 973 UNTS 3, 9 ILM 45, amended by 1992 Protocol to amend the International Convention on Civil Liability for Oil Pollution Damage, 1956 UNTS 255. 69 HINTEREGGER & OTHERS (2008) pp. 645. 70 HINTEREGGER & OTHERS (2008) pp. 20 and FAURE & OTHERS (2007) pp. 5.
17
assets) and the impossibility of accurately calculating future harm are the main reasons
for which difficulties arises. Carlos J. De Miguel71 states: “When economics gives value
to the environment, it seeks for an indicator of its importance to the welfare of society
and its ability to be useful, which is valued in human terms”72. As it is described in later
chapters concerning on civil and administrative liability, in order to compensate or
repair the damage, damages must be assessed so that the economic amount that is
estimated for this damage is equal to the one claimed. It is essential, therefore, that the
damage is economically quantified in some way.
There are three main elements that may be taken into account when assessing
the economic value of the environment: its utility, its impact on production of other
goods and its intrinsic value. The Organization for Economic Cooperation and
Development (OECD), in its Handbook of Biodiversity Valuation73, determines that
there are three types of values to consider when we quantify environmental harm: the
instrumental value, moral value and aesthetical value. The most interesting methods
analyse several of these issues to determine the value of environmental goods, though
none are able to assess the economic value of the environment isolated from other
factors74.
2.2.2.1 Introduction to several methods used to assess environmental damage
There are several methods used to assess the economic value of environmental goods.
The following aims to introduce these methods in descriptive terms, and does not intend
to provide a comprehensive analysis.
Through the market price method, economic value is calculated from the price
of the affected goods in commercial markets. This is the most common way to calculate
the value of damage. However, in the case of environmental damage, the price market
method cannot reflect the real value of the environmental goods, as usually they are not
traded in markets75. The monetary value can also be calculated by taking into account
the cost of reparation or replacement of the injured goods. For example, if a river were
to be polluted, the cost of installing water treatment plants would be the value given to
71 DE MIGUEL & OTHERS (2003) pp. 27 to 30. 72 Translation made by the author of this research. 73 Available online at: http://earthmind.net/rivers/docs/oecd-handbook-biodiversity-valuation.pdf 74 DE MIGUEL & OTHERS (2003) pp. 27 to 30 and KOPP & SMITH (2013) pp. 7 to 10. 75 BENNET & OTHERS (2001) pp. 3 and 4 and KOPP & SMITH (2013) pp. 7 and 8.
18
the environmental asset76. The value of the injury to the environment can further be
calculated by taking the value of the commercial goods affected as a reference point. If
an entity pollutes a beach where fishermen have mussel rafts, the value could be
calculated based on the economic loss it has caused to these subjects77. The impact of
environmental damage on human health is an element that is also used to quantify
economic value.78
2.2.3. Access to Justice
Who is the owner of the river water we drink, or of the air that we breathe? Common
goods, such as the air or the high seas, present challenges to procedural law, initially
designed for legal/physical persons and real property rights. The environment has no ius
standi, meaning it cannot access justice itself. As such, legal third parties need to be
entitled to claim remedies with regards to environmental damage when it does not
involve damages to legal persons or their rights79.
In civil liability, non-contractual obligations, the entitlement for claiming
reparation generally follows a criterion of ownership80. The right to be compensated or
for damage to be repaired comes down to an individual character; this right is owned by
a concrete entity (an individual, a group of individuals, a company, etc.). This entity has
suffered damage to its legitimate interests (physical damage, moral damage or damage
to objects owned or under its domain). In many cases, damage to the environment is not
76Some instruments discussed in this research follow this approach, see for example the Directive
2004/35/CE of the European Parliament and of the Council 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. See also KOPP &
SMITH (2013) pp. 8 to 10. 77 For obtaining a deeper understanding of the various existing methods of assessment of environmental damage, see: IUCN, & WB (2004) “How much is an Ecosystem Worth? Assessing the Economic Value of Conservation.” Available online at: http://documents.worldbank.org/curated/en/2004/10/5491088/much-ecosystem-worth-assessing-economic-value-conservation 78 Ibid. 79 BRYANT & CAPPELLETTI (1978) pp. 194 and 195 and MUILLER (2010) pp. 113 and 114. 80 There are some exceptions to this rule, in some domestic legal systems NGOs and other associations are entitled to claiming for environmental damage, for example in France, Article 142. 2 "Code de l'environnement" amended by art. 229 "Portant national engagement by l'environnement" 12th July 2010, allows accredited associations to bring civil or criminal actions to the courts. In civil procedures, the accredited association may claim for the cessation of the activity or preventive measures, plus the reparation of the damage or the corresponding compensation. A similar approach is followed by 1993 Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, CETS No.: 150. 32 ILM. 480, adopted by the Council of Europe (not in force). See also HINTEREGGER &
OTHERS (2008) pp. 595.
19
suffered by a concrete victim or produced by a direct source. Damage can often affect a
collective group of victims indirectly, or can be caused by a group of indirect sources,
none of which can be easily determined.
The courts have called for this genuine link between the victim and the damage,
as the case law shows. At the European level, the case Greenpeace International and
Others v. Commission 81 can serve as an example. Greenpeace and other local
associations alleged a financial aid gave by the EU Commission to the Canary Island
(Spain) Authorities should be reduced or suspended, has such Authorities did not
undertake the compulsory environmental risk assessment for the construction of several
power plants, as required by Directive 85/337/EEC82. The Court found that, according
to the Consolidated Version of the Treaty on European Union,83Article 263 paragraph 4,
the claimants did not have locus standi, as they did not have an individual concern on
the matter and were not particularly affected by the construction of such power plants.
In pure ecological damage, there are no direct victims. Damage is suffered by a
common good (res communis omnium), on which there is a general interest84. Such
goods are not under the domain or control of any particular individual or entity,
therefore, it cannot be determined which entity has a legitimate interest in the damage
caused. It further cannot be identified which entity is entitled to claim for reparation85.
As traditional tort law requires the determination of these elements in order for the
entitlement for reparation to be established 86, this leads to a limitation for civil law. In
some national jurisdictions87 and at the supranational level, for instance, within the
European Union legal framework, administrative and criminal remedies have partially
resolved the shortcomings of civil remedies by placing the government or other related
81 Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v. Commission, 1995 ECR II-2205. 82 Directive 85/337/EEC of the Council of 27th June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, p. 40, as amended by the Directive 97/11/EC of the Council of 3rd March 1997, OJ 1997 L 73, p.5 and as amended by the Directive 2009/31/EC of the European Parliament and of the Council of 23rd April 2009, OJ L 140 p. 114 83 Consolidated version of the Treaty on the Functioning of the European Union of 26th October 2012, OJ C 326, p. 47. 84 PRONTO & WOOD (2010) pp. 438. 85 Ibid. 86 Ibid. See also DÍEZ-PICAZO & GULLÓN BALLESTEROS (1997) pp. 530. 87 See for e.g. the domestic legal system in Austria, Belgium, Finland, Ireland, Germany and Spain.
20
entities as trustees of environmental goods88. As the European example shows, access to
justice can be strengthened by conflict rules that determine the applicable law and the
jurisdiction and by procedural rules that give locus standi to certain individuals in cases
of environmental harm (i.e. Collective actions).
3. STRUCTURE OF THE THESIS
Part I of this document briefly describes ex ante measures, in order to provide an
overview of the acquis of the international community in the field of prevention of
environmental harm. The prevention principle and precautionary principle set out
obligations to states and private operators and, disregarding these duties can entail
liability. When environmental harm is not avoided by ex ante measures, remedies must
come into action.
Part II is divided into 6 chapters. It analyses the current schemes of
responsibility and liability within international and European law. The analysis is
especially focused on the coverage and effectiveness of these systems when it comes to
the reparation of environmental damage.
The common basis of the different types of remedial or restorative systems, the
polluters pay principle, is described and analysed in Chapter 2.
Chapter 3 describes the mechanisms for reparation within international public
law, specifically, state responsibility and liability schemes concerning environmental
harm. It examines the scope and adequacy of these regimes for determining liability or
responsibility. The Chapter also considers how effectively it covers the situation of
transboundary harm. After the evaluation of these systems, it is concluded that private
liability schemes with regards to environmental offences should have a leading role in
the reparation of damages.
88 Within the legal framework of the EU, the “competent authority” is entitled to claim for remedial measures and their cost under the Directive 2004/35/CE of the European Parliament and of the Council 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. Similar approach can be found inter alia in the United States regulation, see for example Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C.A., sections 9601 et seq.; Clean Water Act of 1977, 33 USCA, section 1321; Oil Pollution Act of 1990, 33 USCA, sections 2701 et seq., these two regulations establish that the “United States congress empowered government agencies with management jurisdiction over natural resources to act as trustees to assess and recover damages ...the public trusties defined broadly to encompass ‘natural resources’ ... belonging to, managed by, held in trust by, appertaining to or otherwise controlled by Federal, state or local governments or Indian tribes”.
21
Chapters 4, 5 and 6 are the core of the research, dealing with private liability
schemes and the main problems that an approach based on ex post liability brings into
the international arena. Chapter 4 is focused on the current status of civil liability
schemes within international private law. Chapter 5 discusses remedies under criminal
and administrative law. The challenges faced by these systems are exposed, and some
proposals for overcoming them are offered. As these two Chapter show, the
international legal framework is very fragmented. Among the possible solutions for
environmental damage matters, civil liability schemes have had a central role, while
administrative and criminal liabilities have been relegated to a purely residual role.
The European Union legal framework addressing environmental damage is
discussed in Chapter 6, showing outstanding improvements in comparison to the
international framework. Criminal and administrative remedies have a significantly
wider and more defined scope. In regard to civil/tort issues involving environmental
damage, access to justice is also further granted through regulations establishing the
governing jurisdiction and the applicable from a unitary approach. Although the EU
system is not perfect, legal certainty is at least secured.
Conclusions reached for each particular topic are provided at the end of each
chapter in the relevant sections and subsections. General conclusions from this research
as a whole are presented in the final chapter.
4. RELEVANCE OF THE RESEARCH
In a first stage, this research is concerned with how ex ante and ex post measures are
related to each other and work together to prevent and repair environmental damage. A
brief introduction of their scope and coverage allows a better understanding of the
context in which ex post measures are developed. Even though the principles of
prevention and precaution are the cornerstone of international environmental law, their
efficacy in practice is, generally, weak, since through them, it has so far not been
possible to prevent serious or irreversible damages to our planet. The effectiveness of an
ex ante approach is even more limited when it comes to the reparation or compensation
of those damages.
On later stages, the research focuses on which instruments are available once
environmental harm has been caused. At the international level, there is a lack of legal
instruments tackling environmental damage from a unitary approach; there are few
substantive regulations and no conflict rules determining the governing jurisdiction and
22
applicable law to cases of environmental transboundary harm. International binding
treaties regarding environmental remedies are generally focused on concrete kinds of
pollution. The research finds a number of examples where the strength of ex post
measures has been raised, providing more efficient remedies to environmental damage
and its victims. Such comparison is essentially focus on the solutions contained within
the European legal framework.
The following figures89 provide a brief summary of the instruments that are
analysed and compared in this research, showing the differences between international
and European legal framework, and the loopholes are likely to be exploit by heavy
polluters. It should be noted that national regulation has also a very important role, even
if national legislations is outside of the scope of this research.
Figure 1: Ex ante protection of the environment
89 Figures developed by the author of this research.
23
Figure 2: Ex post protection offered at by the international legal framework
24
Figure 3: Ex post protection offered by the European legal framework
25
Fig. 3: Ex post protection offered by domestic legal frameworks:
In order to clarify the theoretical aspects concerning the above, a number of
international legal instruments, international legal materials, textbooks, and scholarly
articles are referenced throughout.
26
PART I: BEFORE THE DAMAGE OCCURS - EX ANTE
MEASURES
27
CHAPTER 1: THE ACQUIS OF INTERNATIONAL
ENVIRONMENTAL LAW BEFORE THE DAMAGE OCCURS INTRODUCTION
Environmental law is a twofold system. On one hand, ex ante policies or measures are
intended to avoid, or significantly reduce, the risk of environmental damage; therefore
these set of measures are taken before the damage occurs. On the other hand, ex post
measures deal with the damage once it has occurred. The aims of ex post measures are
diverse: compensate the victims of environmental damage, repair or restore the
environment or dissuade entities from caring out polluting activates, encompassing that
ex post measures may have preventive effect themselves.90
An important percentage of the environmental regulation in international law is
based on ex ante actions. The precautionary and preventive principles are the most
meaningful tools aimed directly at the avoidance of harm, and from which liability can
arise when a entity concerned does not fulfil the duties involved by these principles. The
concepts of sustainable development and solidarity also play an important role in
preventing environmental damage. Sustainable development calls for a balance between
economic, social and environmental interests, whilst appearing to suggest that economic
and social interests may not depend upon ecological matters. In the context of this
research, solidarity refers mainly to cooperation between states to ensure common
interests, and includes a very important duty: states should refrain from activities that
interfere with the general interest or the common goods.91
At the international level, the aforementioned principles and concepts have been
regulated through instruments of soft law, while their regulation through hard law has
traditionally been limited 92.
In the European Union hard law solutions have a greater volume. As per Article
191 (2) of Consolidated version of the Treaty on the Functioning of the European
90 MICELI & BAKER (2013) pp. 69. 91 BEYERLIN & MARAUHN (2011) pp. 33 to 38. 92 Ibid.
28
Union93 policy on the environment shall be based on the preventive and precautionary
principles, which translates in secondary legislations imposing concrete obligations.94
Disregard to these principles can sometimes lead to a negative impact on the
environmental, and ex post remedies are then required.
This Chapter briefly describes some aspects of the aforementioned principles
and their impact on the international panorama. The aim of this analysis is to:
1. Provide a global overview of how international law operates before
environmental damage occurs. The concepts discussed are closely connected to liability,
and provide a needed foundation for the understanding of some aspects of ex post
schemes.
2. Show that the legal framework dealing with environmental harm has
important limitations if it is to face environmental challenges alone, as ex ante measures
have, in a number of situations, not avoided environmental damage effectively.
3. Bring to light that, as a consequence of the above, ex post measures gain
prominence, as environmental damage is not always avoided.
1. PREVENTION PRINCIPLE: HARM AVOIDANCE
1.1. INTRODUCTION
States have a commitment to preventing environmental damage, within their jurisdiction
and beyond their limits. The prevention principle has two sides: prevent environmental
damage and, once the damage has not been avoided, resulting in harm, the
responsibility that the state might face. In other words, in international environmental
law the principle entails both prevention and reparation, which is to say ex ante and ex
post measures95. This Chapter focuses on the first kind of measures and policies, while
Chapter 3 deals with the second aspect of the principle.
93 Consolidated version of the Treaty on the Functioning of the European Union of 26th October 2012, OJ C 326, p. 47. 94 JANS & HANS (2012) pp.41. 95 SANDS & PEEL (2012) pp. 201.
29
1.2. MEANING
The prevention principle is one of the pillars of environmental law. At the international
level96 , it is embraced, inter alia, in principles 2, 11 and 21 of the 1992 Rio
Declaration97. It seeks for harm avoidance and action to be taken early, with the aim of
protecting the environment. Prevention is a very popular tool within environmental law
at every level: international98, regional and domestic legal instruments follow the
essence of the preventive principle, including its different approaches.
The principle goes beyond mere prevention; it calls for specific action that
effectively avoids the damage. Under the principle, states have a duty to provide
effective environmental regulation, which shall be based on the preventive action, or in
other words, risk avoidance.
The main difference between the precautionary principle, which is discussed in
the following section, and the prevention principle is that preventive action is taken
when the activity is already identified as causing serious environmental harm, while the
risk remains uncertain in precautionary action.
96At the supranational level the principle is embraced by primary legislation as stated before, and by secondary legislation, see for example the Directive 85/337/EEC of the Council of 27th June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, p. 40, as amended by the Directive 97/11/EC of the Council of 3rd March 1997, OJ 1997 L 73, p.5 and as amended by the Directive 2009/31/EC of the European Parliament and of the Council of 23rd April 2009, OJ L 140 p. 114 or the European Council Decision 96/191/EC of 26 February 1996 concerning the conclusion of the Convention on the Protection of the Alps, OJ L61, p. 32 97 1992 United Nation Conference on Environment and Development, Rio de Janeiro, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876 (1992). 98 See for example: 1972 Declaration of the United Nations Conference on the Human Environment, Stockholm, UN Doc A/CONF.48/14 and Corr.1, 11 ILM 1416, 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State, 172 LNTS, 241, 1949 Food and Agriculture Organization of the United Nations Agreement for the Establishment of a General Fisheries Council for the Mediterranean, 213 UNTS 237, 1951 Food and Agriculture Organization of the United Nations International Plant Protection Convention, 150 UNTS 67, 1958 United Nations Convention on the High Seas, 13 UST 2312, 450 UNTS 11, 1982 United Nations Convention on the Law of the Sea, 1833 UNTS, ATS 31/21, ILM 1261, 1987 Unites Nations Environmental Programme EP Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3, 26 ILM 1550, 1991 United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, 1989 UNTS 310.
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2.3. EFFECTS AND APPLICATION OF THE PREVENTION PRINCIPLE
At the international level, the prevention principle impose several obligations to the
states and policy makers, who should use it to guide their policies and action. Some of
procedural obligations99 are:
• Consulting other states in order to prevent environmental harm.
• Exchanging information about projects that might cause environmental
harm.
• Notifying other states or public authorities of environmental emergencies
and providing warning in cases of imminent environmental harm.
• Assessing projects of transboundary environmental harm nationally.
• Granting non-residents an equal access to environmental information and
justice in environmental matters, and also granting participation in the
decision-making process.
International courts have dealt with the obligations arising from the prevention
principle on several occasions. For example, in the ICJ case Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica)100, the court analysed
the violation of some of the general obligations set forth by the prevention principle101.
Costa Rica finds that Nicaragua has breached several the obligations, as Nicaragua has
failed to consult and inform Costa Rican Authorities about the alteration of the course
of the San Juan River, as they may cause damage in Costa Rican environment, and
Nicaragua has also breach its obligation to assess the environmental impact of its
activities. If the IJC finds that Nicaragua did fail to fulfil its obligations under the
prevention principle, state responsibility may arise. The features and consequences of
state responsibility are later discussed in depth.
Within the European Union, one of the main instruments in regard to the
preventive principle is the Council Directive 85/337 of 27th June 1985 on the
99 BEYERLIN & MARAUHN (2011) pp. 44. 100 ICJ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional Measures, Order of 22th November 2013, ICJ Reports 2013, p. 354 (Judgement pending). 101 PLAKOKEFALOS (2012) pp. 3 to 5.
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assessment of the effects of certain public and private projects on the environment102.
According to this Directive, certain projects103 that are likely to have an impact on the
environment shall be subject to an assessment, in order to determine which damages
may arise. Projects listed in Annex I shall always be subject to an assessment while
each Member State has discretion to decide whether projects listed in Annex II are to be
subjects to an assessment. Thus, Directive gives the Member State a great level of
discretion; furthermore the Member states also play an essential role in determining the
content of the assessment, as the Directive only provides few points that the assessment
shall cover104. To this extent, the EU hard law provides improvements, but results in a
mild positive effect; the Directive only establish few minimum standards, its
implementation and practical impact can differ greatly from one Member State to
another.
1.4. CONCLUSIONS: THE PREVENTION PRINCIPLE
Prevention is a key tool in solving the current environmental crisis. Procedural
obligations have a central role within the preventive side of the principle, nevertheless
the obligations mentioned in this section are generic, and their content varies among
different context. Usually, it is necessary to consult the specific convention on the
matter in order to determine the extent of the procedural obligations. The principle’s
content is not inadequate; it seeks in a very general way to enhance and encourage states
to take preventive action, though this can sometimes result in poor practical
implementations. Nevertheless, states have shown themselves as willing to litigate in
order to determine the ways in which they are affected by the prevention principle105.
Environmental regulation, at the international, regional and domestic level, is
generally focused on risk avoidance. However, environmental disasters frequently
occur, and in these situations, an effective remedy is required. This proves the limits of
the prevention principle in practice.
102 European Council Directive 85/337/EEC of 27th June 1985 in the assessment of the effects of certain public and private projects on the environment, OJ L 175, p. 40, as amended by the European Council Directive 97/11/EC of 3rd March 1997, OJ 1997 L 73, p.5 and as amended by European Parliament and of the Council Directive 2009/31/EC of the of 23rd April 2009, OJ L 140 p. 114. 103 JANS & HANS (2012) pp.349. 104 Ibid, pp. 351. 105 Ibid.
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2. THE PRECAUTIONARY APPROACH: ACTION FACING UNCERTAINTY
2.1. INTRODUCTION
The precautionary principle aims to avoid potential risks to the environment or to
human health. It did not appear to be regulated until the ‘70s, when it was included in
some domestic legal systems; the most notable of these approaches might be the West
Germany’s regulation106 (German implementation of the “Vorsorgeprinzip” which
translates as prevention principle), Sweden’s regulation (Swedish Environment
Protection Act of 1969107) and Switzerland’s regulation108. In the ‘80s, international
regulation began to feature the precautionary principle, in instruments such as the UN
World Charter for Nature of 1982109.
The legal instruments inspired by the principle are based on the idea that states
must not wait for proof of the harmful effects of human activities before taking action,
as the damages caused to the environment might be irreversible or remediable only over
long periods and at a very high cost.
Nowadays, the principle is one of the foundations of international environmental
law, and it is also recognized as such within the EU. As it was state before in this
research, European legal framework establishes that European Union environmental
policies shall be based on the precautionary principle. The principle is also applied in
the case law by the European Court of Justice, for example, in the Case C-121/07
Commission v France110, where the Court recognises the precautionary principle as a
essential principle, or the “Mad Cow” case111, which reads as follows: “Where there is
uncertainty as to the existence or extent of risk to human health, the institutions may
take protective measures without having to wait until the reality and seriousness of
those risk become fully apparent”.
106 See for example the Atomgesetz (Nuclear Energy Act), art. 7, § 2, no. 3 (1976) and the Bundesimmissionsschutzgesetz (Federal Emmission Control Act), art. 5, § 1, no. 2. (1974). See also CAMERON & ABOUCHAR (1991) pp. 6 et seq. 107 SFS (1969) Nos. 387 and 388; Sveriges Rikes Lag (91st ed. 1970) B 1576 as amended in SFS (1970) No. 898, (1971) Nos. 370 and 643. 108 See HARRAMOES & OTHERS (2013) pp. 4. See also PERCIVAL (2006). 109 1982 United Nations General Assembly World Charter for Nature, A/RES/37/7, 22 ILM 455. Full text available at: http://www.un.org/documents/ga/res/37/a37r007.htm 110 Case C-121/07 Commission v France (2008) ECR I-9159, paragraph 74. 111 C-157/96 National Farmers’s Union (1998) ECR I-2211
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2.2. MEANING
The precautionary principle is embraced112 by Principle 15 of the Rio Declaration113,
which provides the following: “In order to protect the environment, the precautionary
approach shall be widely applied by States according to their capabilities. Where there
are threats of serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent environmental
degradation.”
The precautionary principle114seeks for early action to address potential serious
environmental damage. It provides guidance in cases of scientific uncertainty, and it
calls for quick action if there is strong suspicion that some activity is environmentally
harmful. This avoids waiting for full scientific evidence. 115
According to the preventive principle, policy makers have to avoid the damages
that are already known and seek to prevent them from reoccurring. The precautionary
principle, on the other hand, is future orientated; policy makers should reduce the risk of
environmental harm when there is insufficient scientific evidence, and potential
damages are not known for certain.
The principle does not seek a zero risk policy; there is a level of acceptable risk
involved. Measures taken under the principle must be proportioned and non-
discriminatory116. Accordingly, actions taken should not exceed what is necessary to
achieve the required level of precaution, and similar situations should not be treated
112 The precautionary approach is followed by other international regulations and several Multilateral Environmental Agreements see, inter alia: 1985 UNEP Convention for the Protection of the Ozone Layer, TIAS No. 11,097,1513 UNTS 323, 26 ILM 1529, 1992 UN Framework Convention on Climate Change, 1771 UNTS 107, S. Treaty Doc No. 102-38, U.N. Doc. A/AC.237/18 (Part II)/Add.1, 31 ILM 849, 1996 International Maritime Organization Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 36 ILM 1, 2000 United Nations Environmental Programme Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2226 UNTS 208, 39 ILM 1027, UN Doc. UNEP/CBD/ExCOP/1/3, at 42. In these instruments the approach to the prevention principle might change, its scope, meaning or effects may vary from one instrument to another. In this section a general approach to the principle is taken. 113 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876. 114 SANDS, & PEEL. (2012) pp. 218. 115 BEYERLIN, & MARAUHN (2011) pp. 47 to 49. See also JANS. & VEDDER (2012) pp. 43. 116 Ibid.
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differently, unless there is an objective justification117 . Proportionality and equal
treatment are also required within the EU legal framework118.
2.3. EFFECTS AND APLICCATION OF THE PRECAUTIONARY PRINCIPLE
The principle calls upon states to take precautionary action instead of being inactive. It
establishes a commitment to take action whenever a threat or serious risk of
environmental harm arises119. The principle also sets down that states are under an
obligation to jointly agree to act carefully with regards to activities that might pose a
potential risk120.
In order to be applicable, some requirements must be met. Firstly, the threat to
the environment has to be serious or irreversible, thus the principle only applies in
situations where the authorities concerned recognize that this criterion is met. The
second requirement that needs to be fulfilled is scientific uncertainty, which means that
there is not enough scientific data to establish a link between the activity and the
adverse effect. If there is no scientific uncertainty and a threat of serious harm, the
principle is not applicable121. It is a risk management instrument, and a scientific
evaluation is required. The degree of scientific uncertainty and an assessment of risks
must be analysed in order to determine whether the precautionary principle is applicable
in each case122 123. There is no specific “threshold of uncertainty”; the principle works
on a case-by-case basis, in order to determine how the principle applies to a particular
case, it must be studied individually. The principle applies regardless of whether the
damage is hypothetical or has already materialised but causation cannot be
established.124
117 Ibid. 118 JANS & HANS (2012) pp.17 to 21 119 BEYERLIN, & MARAUHN (2011) pp 54 and 55. 120 SANDS & PEEL (2012), pp. 222. 120 BEYERLIN, & MARAUHN (2011) pp. 54 and 55. 121 BEYERLIN & MARAUHN (2011) pp. 52-54. 122 The European Commission established in the Commission of the European Communities (2000) Communication on the Precautionary Principle (Brussels: COM (2000)1) a deeper explanation to this regard, which reads as follows: “its scope is much wider, and specifically where preliminary objective scientific evaluation, indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen for the Community.” 123 GIANON (2013). 124 BEYERLIN, & MARAUHN (2011) pp. 52-54.
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The precautionary principle can justify measures taken to protect the
environment that otherwise would be prohibited under international law. For example,
under the principle, a precautionary action restricting trade can be lawful, even though
these kinds of measures could be considered as barriers to trade.125
In general, the principle does not shift the burden of proof. The interested party
is the one that must prove that certain activity might involve potential risks. In some
particular cases, the burden of proof lies with the proponents of the activity, who must
provide evidence to show that the specific activity is safe or that the risk is
acceptable.126
When the principle is applied, there must be a balance of interest; the probability
of materialization of the identified risk, and the magnitude of it, against other
advantages that the activity may bring, such as economic benefits or scientific
importance. The variables of sustainable development, environmental, social and
economic needs, shall be taken into consideration when the concerned authorities
decide how to apply the precautionary principle.127
An example of how this balance works, and how the principle applies, can be
found in the EU Commission Recommendation of 22 January 2014, concerning
minimum principles for the exploration and production of hydrocarbons (such as shale
gas) using high-volume hydraulic fracturing 128. The Recommendation deals with the
controversial activity known as “fracking”, recognizing that fracking could involve
potential risks to human health and the environment. Firstly, it is important to note that
it is remarkable that the EU Commission chose to use a non-binding tool, following a
soft law approach, as there was a lack of consensus achieved within the 28 Member
States regarding how to handle fracking. The Recommendation entails that EU Member
States would decide individually whether they implement its content in their national
laws. Surprisingly, the Recommendation does not dissuade the Member States from
using this technique, though it provides a number of guidelines to minimize the risk. It
also provides some recommendations in case the risk finally materialises. The EU
125 Ibid. 126 HUBER (2012). 127 Ibid. 128 European Union Commission Recommendation of 22nd January 2014 on Minimum Principles for the Exploration and Production of Hydrocarbons (such as Shale Gas) Using High-Volume Hydraulic Fracturing (2014/70/EU), OJ L 39/72.
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Recommendation, then, balances the economic profit and the advantage of making the
EU more energy-independent with the environmental risk that fracking might involve,
and, at the same time, the Recommendation reflects a political choice where freedom is
given to EU Member States to decide action for themselves.
2.4. CONCLUSIONS: THE PRECAUTIONARY APROACH
The precautionary principle is a powerful tool, but its application is limited, as it would
not be adequate to tackle all the cases of environmental risk deriving from scientific
uncertainty. Decisions on environmental policy are not taken by applying the principle
by itself. The precautionary principle is a regulative idea, which seeks to research safer
and alternative activities and forces policy makers to balance the concepts embodied by
sustainable development.
The protection offered by the principle changes from case to case; its
interpretation and scope are not consistent and there is no consensus on the definition of
its key concepts, such as scientific uncertainty or serious risk.
The principle does not solve situations such as climate change, even though
there was scientific uncertainty129 and it does constitute a very serious threat to the
environment and human health. The main reason for this might be that the principle is
focused on providing solutions to specific cases, and policy makers do not always
follow the balance pursued by sustainable development.
One way of understanding how this principle could be applied, when
considering its extent and scope, is to use it as a policy-decision tool in and of itself.
This does not mean that there will be zero risk, but that the principle could be used to
promote alternative policies that are kinder to the environment, such as the use of
renewable energies and precautionary general policies, instead of precautionary
(isolated) actions.
129 See the IPCC 4th Assessment Report: Climate Change 2007, which states that “Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice and rising global average sea level”. See also the IPCC 5th Assessment Report: Climate Change 2013. Both instruments available online at: http://www.ipcc.ch/publications_and_data/publications_and_data_reports.shtml
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3. SUSTAINABLE DEVELOPMENT
3.1. INTRODUCTION
The concept of sustainable development was placed in the international panorama by
the Report of the World Commission on the Environment and Development of Our
Common Future by the Brundltand Commission in 1987 130 , which targeted the
achievement of sustainable development. The roots of sustainable development go back
to the ‘70s131, where instruments such as the 1972 UN Stockholm Declaration on the
Human environment132 or the UN General Assembly Resolution 35/56 on International
Development Strategy for Third UN Development Decade of 5th of December 1980133,
where reference to balancing economic, social and environmental needs is made.134
3.2. MEANING
Sustainable development is an abstract moral and political value that calls for the
balance between the economic, social and environmental needs135. There are two main
models of sustainable development: the “weak” one assumes equal importance of three
elements (also called anthropocentric school), while the “strong” one places
environment as the main element of the system (called non-anthropocentric school).136
The concept has been adapted to international law, supranational law and
national law, tackling very different issues within economic law, development law,
human rights and environmental law. The scope, status and meaning of sustainable
130 GH, Brundtland, and World Commission on Environment and Development. Our Common Future: Report of the World Commission On Environment and Development. Official records of the UN General Assembly, Forty-second session, Supplement No. 25, A/42/25. 131 The concerns regarded by sustainable development had been recognized earlier, see Award of the arbitral tribunal established under the Treaty signed in Washington, on the 29th of February of 1982, between the United States and her Majesty the Queen of the United Kingdom of Great Britain and Ireland. 15th August 1893, M (Bering Fur seal dispute). See SCHRIJVER (2008) pp. 238. 132 See Principle 9, 10 and 11 1972 Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14 and Corr.1, 11 ILM 1416. 133 1980 Resolution adopted by the General Assembly, International Development Strategy for the Third United Nations Development Decade, A/RES/35/56 para. 41, which states: “There is a need to ensure an economic development process which is environmentally sustainable over the long run and which protects the ecological balance”. 134 SCHRIJVER (2008) pp. 238. See also BOSSELMAN (2009) pp. 79 and BEYERLIN & MARAUHN, (2011) pp. 73. 135 BEYERLIN & MARAUHN, (2011) pp. 76. 136 BOSSELMAN (2009). pp. 90 and 91. See also BUGGE & VOIGT (2008) pp. 25 to 28.
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development changes within different contexts137. As its features are complex, there is
no exact definition or clear scope. Nevertheless, it is widely accepted that the concept
entails a commitment of the present generations with the future generations138, and
between poor and rich countries139. There is no consensus regarding the status or
normative quality of sustainable development140.
Sustainable development encompasses other principles141 of international law
and is closely linked to other main concepts such as solidarity and justice. The 1992 Rio
Declaration142 places sustainable development143 as a general goal to be achieved,
without providing any specific definition. Here, under Principle 5, states have the duty
of cooperating in the task of eradicating poverty as an essential requirement for
sustainable development. The concept is related to the principle of prevention; in the
ILA New Delhi Declaration144, Principle 1 highlights the importance of the sustainable
management of natural resources145, including the protection of the environmental
goods.
137 BUGGE, & VOIGT, (2008) pp. 25 to 27. See also SCHRIJVER (2008) pp. 288 to 333. 138 BOSSELMAN (2009) pp. 93 and 97. 139 Ibid. See also BEYERLIN & MARAUHN, (2011) pp. 77 to 79. 140 BEYERLIN & MARAUHN, (2011) pp. 79 to 82. 141 Sustainable development includes the duty of states to ensure sustainable use of natural resources, the principle of equity and eradication of poverty, the principle of common but differentiated responsibilities, the precautionary principle, public participation and access to justice, principle of good governance and principle of integration and interrelationship. See also the Resolution of the 70th Conference of the International Law Association in New Delhi, India, 2nd – 6th April 2002 UN Doc. A/CONF.199/8, 9th August 2002. 142 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876. 143 Sustainable development is mentioned 12 times in 1992 United Nation Conference on Environment and Development, Rio de Janeiro, Principles 1, 4, 5, 7, 6, 8, 9, 12, 20, 21, 22, 24 and 29 make reference to the concept. 144 Resolution of the 70th Conference of the International Law Association in New Delhi, India, 2nd – 6th April 2002, UN Doc. A/CONF.199/8, 9th August 2002. 145 Principle 1 of the ILA New Delhi Declaration reads as follows “States are under a duty to manage natural resources, including natural resources within their own territory or jurisdiction, in a rational, sustainable and safe way so as to contribute to the development of their peoples […], and to the conservation and sustainable use of natural resources and the protection of the environment, including ecosystems. States must take into account the needs of future generations in determining the rate of use of natural resources. […]”.
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3.3. EFFECTS AND APPLICATION OF SUSTAINABLE DEVELOPMENT
The principle of sustainable development has been embraced by the case law and
regulations at every geographical level146. The case Gabcikovo-Nagymaros Project
(Hungary v Slovakia)147 is an example of the principle making it to the international
legal order, where the court established that the “need to reconcile economic
development with the protection of the environment is aptly expressed in the concept of
sustainable development”. Another example can be found in the 1982 Law of the Sea
Convention148. In article 61.3, it establishes the following: “measures shall also be
designed to maintain or restore populations of harvested species at levels which can
produce the maximum sustainable yield, as qualified by relevant environmental and
economic factors, including the economic needs of coastal fishing communities and the
special requirements of developing States”. However, the use of the term in the case law
and in different regulations offers little guidance on the legal meaning of the concept,
and so an exact definition remains unclear 149.
3.4 CONCLUSIONS: SUSTAINABLE DEVELOPMENT
Sustainable development has many facets and it has powerful political value; it entails a
new balance between environmental, social and economic matters. The term constitutes
a base from which other norms can be developed, such as the concepts of “peace” or
“justice”, although shaping the meaning and scope of sustainable development is
necessary in order to establish a consistent use of the term.
4. SOLIDARITY AS COOPERATION
4.1. INTRODUCTION
Solidarity is an ethical source of environmental law. The concept has been widely used
in law and politics, but there is no clear definition of solidarity. Its meaning will vary
146 At the European Level, see for example the Directive 2010/75/EU of the European Parliament and of the Council of 24th November 2010 on industrial emissions (integrated pollution prevention and control) (recast), OJ L 334, p. 17. 147 ICJ Gabcikovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports 1997 p. 7 148 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3; ATS 31; 21 ILM 1261. 149 SCHRIJVER (2008) pp. 376.
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greatly depending on the context.150 In this document, solidarity will be analysed within
the scope of international public law and international environmental law.
4.2. MEANING AND APPLICATION
Solidarity is a moral imperative, out of which other rules and principles are developed.
In general, solidarity describes a relationship within a community, in International Law,
among states or other public entities.151
Solidarity in this arena does not make reference to assistance or charity to
developing less developed countries. The concept includes two main sides. Firstly, all
states are equal and they should refrain from actions that may interfere with the
realization or maintenance of the common good or common interest. Secondly, all states
should cooperate with the aim of achieving common interest152, which includes the
interest and welfare of future generations.153 From this information, it can be concluded
that solidarity is related to the prevention principle (no harm) and to sustainable
development.
Solidarity, in this context, is also closely linked to equity, justice, fairness154 and,
especially, cooperation. Cooperation among states is mentioned 9 times155 in the 1992
Rio Declaration; references to cooperation are made here in order to establish that the
international community should pursue and maintain areas where cooperation is
required. Environmental crisis can be only solved through international cooperation156.
Heavy polluters, who find a way of avoiding more stringent laws, exploit the loopholes
existing in liability schemes for environmental damage. Thus, it is in the hands of
international community to close the existing loopholes.
150 WILLIAMS (2014). 151 Ibid. 152 In general, cooperation would be towards particular common interest, e.g. such as preventing maritime pollution; see the case concerning the MOX Plant (Provisional Measures), ITLOS Case No. 10, Order of 3rd December 2001, where the Court states the following: “Considering, however, that the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law”. 153 See BEYERLIN & MARAUHN, (2011) pp. 35. 154 Justice, fairness and equity are concepts very close to each other; they are, sometimes, used as synonyms. In this context, the concepts refer to environmental justice mainly, which includes the participation in the decision-making procedure of every state, in equal conditions, and the access of the states to international remedies such as negotiation or judicial bodies. See BEYERLIN & MARAUHN (2011) pp. 36 and 37. 155 Cooperation is mentioned in Annex I and Principles 5, 7, 9, 12,13,14, 24 and 27. 156 VAN AAKEN (2015) pp. 153-191
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In practice, states are likely to cooperate if they have common interests or aims.
For example, a group of states may be particularly affected or concerned by an
environmental issue, and they would form a group in order to achieve their goals157. The
real implication of the whole international community is not that easy. Instruments and
case law discussed in subsequent chapters reveal the difficulty in achieving the
commitment and cooperation of the international community.
4.3 CONCLUSIONS OF SECTION 4, SOLIDARITY
In the scope of this research solidarity is important in two mains aspects:
1) Solidarity is closely related to no ham principle and state responsibility
once there is a transgression of the principle.
2) Cooperation of the international community towards the development of
liability schemes tackling environmental offences at the international
level.
As sustainable development, solidarity is a powerful concept from which other
norms can be developed and provides a point of departure from which states can reach
agreements in order to protect the environment, close the loopholes and procure a more
effective implementation of the abovementioned principles (prevention and precaution
principles).
5. CONCLUSIONS
The international community has struggled in finding solutions to the environmental
crisis. The main legal instruments are focus on encouraging states to take preventive
and precautionary action in order to avoid environmental harm. However, cases of
environmental damage are not isolated phenomena but recurring. The preventive and
precautionary principles have failed miserably in a number of situations. One of the
main reasons might be that preventing or taking precautionary action in order to avoid
environmental damage is usually not economically profitable in the short term, although
environmental disaster can involve large economic losses158. Sadly high environmental
157 BEYERLIN & MARAUHN, (2011) pp. 36. See also VAN AAKEN (2015) pp. 153-191. 158 See for instance the 2005 Buncefield incident, United Kingdom, where a tank farm caught fire and explode, involving an approximated total cost EUR1 billion, causing great ecological harm, personal injuries and community disruption. For more information consult the 2010 European Environment Agency Technical report No 13/2010 Mapping the impacts of natural hazards and technological accidents
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protection does not attract investment, and here sustainable development concept takes
part within the ex ante measures. Generally, within making-decision procedures,
environmental matters become a secondary factor and shall not prevail over economical
or social matters.
As per solidarity and the procedural obligations set by the preventive principle,
state should refrain from causing a negative impact on third states environment. Thus,
when the procedural obligations impose by the above-mentioned instruments is not
fulfilled by a state, states responsibility or liability may arise, which is later discussed.
Solidarity also involves cooperation towards common interests, such as a high
environmental protection. However, one of the main obstacles for achieving a high level
of environmental protection is the lack of cooperation and commitment of the
international community as a whole, which leads to a lack of an effective legal
framework addressing ex ante and ex post with environmental damage. Greater levels of
cooperation are found in economical and political supranational partnerships, such as
the European Union, where the legal framework in regard to environmental matters is
more developed, offering further environmental protection, as it is shown in later
chapters.
in Europe; An overview of the last decade. Publications Office of the European Union, 2010. Available online at: http://www.eea.europa.eu/publications/mapping-the-impacts-of-natural
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PART II- AFTER THE DAMAGE: EX POST MEASURES
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INTRODUCTION, PUBLIC AND PRIVATE LIABILITY
When ex ante measures do not prevent environmental damage, ex post measures, with
the purpose of repairing the damage, acquire a major role.
The Rio Declaration159, Principle 13, sets “States shall also cooperate in an
expeditious and more determined manner to develop further international law
regarding liability and compensation for adverse effects of environmental damage
caused by activities within their jurisdiction or control to areas beyond their
jurisdiction”. As determined earlier, states can and should develop ways of fighting and
remediating environmental damage once it has already occurred.
On the grounds of cooperation, this area of law has been a fertile ground for
drafting legislation. It is characterized by a great diversity. There are heterogonous legal
instruments of public and private law at all the geographical levels; some instruments
are focused on specific kinds of pollution, while others have a unitary approach. Their
nature, importance within the system of international law and the institutional
framework within which these agreements and legal materials are developed, is also
very heterogeneous.
However, liability regarding environmental damage presents serious difficulties
that have not been overcome by international law160. The main problems faced by
liability had been exposed on the introduction of this research. The most outing
problems are:
a) Identifying the polluter and the victim can some times pose a great
challenge.
b) The causal link between the pollutant and the damage is, in many cases,
hard or impossible to establish.
c) Environmental harm needs to be assessed in monetary terms in order to
be compensated.
d) The common goods are out of the jurisdiction of any state, and are used
(and polluted) by many entities (challenges related to access to justice).
e) There is no determined threshold of acceptable pollution, making harder
to determine what constitutes environmental damage
159 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol I), 31 ILM 876. 160 HARDMAN REIS (2011) pp.7 and 8.
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The above-mentioned obstacles do not have a simple solution, and pose a great
challenge to international community.
In subsequent chapters, the main existing legal instruments are described and
analysed, problems arising from these are identified, and some proposals for improving
the efficiency of environmental protection are given.
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CHAPTER 2: A COMMON BASIS, THE POLLUTERS PAY
PRINCIPLE:
1. INTRODUCTION
Heterogeneous legislations in regard to liability arising from environmental harm have a
similar background, the polluters pay principle. It is not a binding rule, but a policy
guide; it establishes that polluters must assume the cost of the pollution produced by
them. It calls upon states to include rules that make the polluters to internalize the costs
of pollution in their domestic legal systems.161
This chapter is meant to give background information on the topic explored on
the following chapters, which are the core of this research, that address for which acts
the polluters actually pay at the international level.
2. THE POLLUTERS PAY PRINCIPLE REGULATION
The polluters pay principle (PPP) was officially included in the international
environmental regulation in 1972, in the Recommendation on Guiding Principles
Concerning International Economic Aspects of Environmental Policies, which was
adopted by the OECD Council162. From 1972, the PPP has been included in many non-
binding international legal materials: Principle 16 of the 1992 Rio Declaration163
establishes that “national authorities should endeavour to promote the internalization of
environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with due
regard to the public interest and without distorting international trade and
investment.” 164 . The principle is also one of the cornerstones of the European
161 See BEYERLIN & MARAUHN (2011) pp. 57-60. 162 1972 Organisation for Economic Co-operation and Development Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, C (72)128. 163 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol I), 31 ILM 876. 164Previous non-binding legal framework, after the Recommendation of 1972, included the principle at the International level, e.g., Organisation for Economic Co-operation and Development 1974 Recommendation of the Council on the Implementation of the Polluter-Pays Principle C (74) 223, and 1989 Recommendation of the Council concerning the Application of the Polluter-Pays Principle to Accidental Pollution, C (89) 88. It is also expressly provided by multilateral agreements regarding environment with binding force, e.g., 1990 International Maritime Organisation of the United Nations
47
Environmental policy, as stated Article 191 (2) of Consolidated version of the Treaty on
the Functioning of the European Union165; this entails that European Union must
develop liability schemes166 and other measures implementing the PPP.167
The PPP regulates where the costs of pollution should be allocated; it seeks for
an internalization of the economic costs of such pollution by the pollutants. As such, the
entity that causes the pollution shall bear the costs resulting from its conduct. The
pollutant can be a natural person or an artificial person, subject to public or private
law.168
Under the principle, the polluter should bear the cost of the preventing actions,
elimination of the pollution, or its reduction to acceptable levels besides the reparation
of the damages caused. This last form of implementation is the most relevant within the
topic at hand, since it is likely to produce relations concerning responsibility or
liability.169
2.1. PROBLEMS THE POLLUTERS PAY PRINCIPLE SHOWS.
The polluters pay principle shows a number of problems and ambiguities; there is no
consistency with the interpretation or scope of the principle. The difficulties are partly
caused by the materialisation of the principle in each state’s domestic sphere. Since
each state can include different forms of implementation with heterogeneous scopes
within their legal domestic system, there is no certainty or general consensus over what
the PPP means and what it entails170.
Due to this uncertainty, the principle provides little guidance in resolving
liability and compensation matters. The principle does not answer the main questions:
Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC Convention), 891 UNTS 51, 30 ILM 733. 165 Consolidated version of the Treaty on the Functioning of the European Union of 26th October 2012, OJ C 326, p. 47. 166 See for instance the Directive 2004/35/CE of the European Parliament and of the Council 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. It develops a liability scheme taking the PPP as a basis. Another instruments including the PPP at the European level is, inter alia, the Council Recommendation of 3 March 1975 regarding cost allocation and action by public authorities on environmental matters 75/436/EURATOM, OJ L 194. 167 JANS & HANS (2012) pp. 48 and 49. 168 BEYERLIN & MARAUHN, (2011) pp. 57 to 60. 169 Ibid. 170 Ibid.
48
who should be held liable (who is the polluter), for which acts, and how much this
would cost.171
Author Nicolas de Sadeleer 172 criticises that the PPP is a very attractive slogan
that everyone will support, but its practical implementation is, in general, weak and
ineffective. From his perspective, the principle legitimizes polluting if the polluter can
bear the costs, “I pay therefore I pollute” will be the defining motto at the end. In his
view, the principle entails that if the cost can be assumed, the right to pollute can be
purchased by the equivalent price of the cost of the measures required for eliminating,
reducing, repairing or preventing the ecological damage.
2.2. CASE LAW, THE POLLUTERS PAY PRINCIPLE IN PRACTICE
In practice, we can easily find examples that justify the view of the author. On
numerous occasions, the principle requires a balance between the rights of the pollutant
and rights of the individuals who suffer the adverse effects of pollution. For example, in
the case Boomer vs. Atlantic Cement Company173, several neighbours requested
compensation and the cessation of a cement plant due to the nuisance caused by the dirt,
vibrations and smoke coming from the cement plant.174
The Appellation Court of New York sentenced the operator of the plant to the
payment of compensation for the civil damages, but refused to order the cessation of the
productive activity as the affected neighbours requested, allowing the operator to
continue with the activity, resulting in the continuation of the nuisance. The Court
found the closure of the operator’s facilities disproportioned175. The Court took into
account the major investment of the plaintiff and the economic loss that the cessation of
the activity would involve. The cost of shutting down the facilities was higher than the
value of the satisfaction of the neighbours of the installation.176 In this case, the
pollution is not eliminated, reduced, prevented or repaired. The pollution is
compensated. Since the “polluter pays”, the pollutant activity can continue, which is
171 Ibid. See also BOWMAN AND BOYLE (2002) pp. 1. 172 DE SADELEER (2012). See also DE SADELEER (2002) pp. 482 et seq. 173 26 NY. 2d 1020 1970 NY, case Boomer vs. Atlantic Cement Company (US). 174 FARBER (2005). 175 There are similar cases within the EU, where the European Court of Human Rights (ECHR) balanced the rights of the claimants and the offender, e.g. ECHR Flamenbaum and Others v. France Application nos. 3675/04 and 23264/04 (2012) and ECHR Martinez Martinez and María Pino Manzano v. Spain Application no. 61654/08 (2012). 176 DE SADELEER (2012).
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also the most convenient option in economic terms, when considering the high cost of
not polluting.
Faure177, who discussed different approaches about the cost-benefit balance and
analysed very similar examples, at this point asked himself a crucial question: How do
we value environmental matters in economic terms? As it was stated in the introduction,
there are several methods to assess environmental damage. One of the main criticisms
Faure found is that the polluters pay principle mechanism does not take into account
who is suffering the polluting activity and who is the recipient of the benefit.
The reality is that not polluting is usually not the most profitable or valuable
option in monetary terms. The degradation of the environment is never calculated in
economic terms but is taken for granted. Economic growth and interests generally
prevail over environmental and social needs. The establishment of rigorous regimes that
force the polluters to repair or bear the cost of the pollution depend on political will;
however severity are usually avoided on the basis of promoting economic progress178.
3. CONCLUSIONS OF CHAPTER 2, THE POLLUTERS PAY PRINCIPLE
The combination of the aforementioned circumstances reduces substantially the
effectiveness of the principle, which may not be applied in general; the specific
circumstances and regulation, if any, must be analysed in order to determine the scope
of the principle in each particular case.
It is necessary to recognise that the formulation of the polluters pays principle
allows great flexibility to states and supranational entities; they can implement it in the
way that suits their needs best. Still, it is important to define more deeply what the
principle implies, to provide greater uniformity and consistency within the system.
Within responsibility and liability schemes, a more comprehensive and
exhaustive guide would be highly desirable. There is one main reason that makes it
convenient: providing stability and certainty to both the victim and the polluter. These
entities could determine a priori to which extent they are affected by the principle. This
guide, further elaborated by the international community, could be used as a prototype
for states, and would be a great step by the international community in fighting jointly
to enhance the credibility and effectiveness of the polluters pay principle.
177 FAURE (2012) pp. 232. 178 BOWMAN AND BOYLE (2002) pp. 15.
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CHAPTER 3: STATES RESPONSIBILITY AND LIABILITY-
EX POST REMEDIES IN INTERNATIONAL PUBLIC LAW
1. INTRODUCTION
Customary law and its evolution towards environmental protection play a crucial role
within international public law regarding environmental liability. Nowadays several
instruments of international public law set out this customary law, defining under which
circumstances a state can be held liable or responsible for environmental damage.
The principles of sovereignty over natural resources and no harm are the
cornerstone of state responsibility in the environmental arena; the case law had helped
to shape these principles since late in the 19th century, determining which rights and
duties these principles entail and clarifying how they are interrelated to each other.
The idea of state strict liability in cases of ultra-hazardous activities has been
promoted because of the seriousness of the damage arising from certain activities179.
However, there are few agreements that develop this idea, as states had been unwilling
to assume liability regimes that will hold them primarily responsible for transboundary
harm180.
This chapter describes and analyses state responsibility and liability by
discussing the main regulations involved. Some proposals for overcoming the main
problems are given.
2. BASIS FOR STATE RESPONSIBILITY AND LIABILITY:
The basis of responsibility in this field is a binomial: right over natural resources but
duty to ensure that their activities do not cause harm beyond their jurisdiction (sic uture
or no harm principle).
179 See e.g., 1971 United Nations General Assembly Convention on International Liability for Damage Caused by Space Objects, 24 U.S.T. 2389, T.I.A.S. No. 7762, 10 I.L.M. 965, article 2 that establishes that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight”. 180 BEYERLIN & MARAUHN, (2011) pp. 366 to 368.
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This binomial has been included in a number legal instruments and can be
summarized by Principle 2 of the 1992 Rio Declaration181, which establishes the
following: “States have in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental and developmental policies, and the responsibility
to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction”. This
responsibility to ensure that the activities do not have a negative impact on third states
in is closely linked to the concept of solidarity in international environmental law and is
also the other side of the coin of the prevention principle (no harm).
The principle seeks for a balance between rights and duties associated with
exploitation of natural resources. The principle gives states the freedom to decide the
level of environmental protection within its territory. States’ freedom is limited to
damaging of the environment third states or other areas outside of the state’s territorial
jurisdiction182.
2.1. SOVEREIGNTY OVER NATURAL RESOURCES
The sovereignty over natural resources principle183 implies that each State can freely
develop their own policies on the environment or exploitation of natural resources
within their jurisdiction, as a consequence of the full enjoyment of their national
sovereignty, free from external interferences and only limited by the possibility of
causing damages to a third state environment184. The principle only concerns the
resources located within the national territory185.
181 A similar approach can be found, inter alía, in Principle 21 of the 1972 Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14 and Corr.1. 11 ILM 1416. 182 See BEYERLIN & MARAUHN (2011) pp. 40. 183 A great number of international agreements make reference to sovereignty rights over natural resources, e.g., 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State, 172 LNTS 241, 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 996 UNTS 245, TIAS 11084, 11 ILM 963, 1989 United Nations Environmental Programme Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1673 UNTS 126, 28 ILM 657, 1992 United Nations Framework Convention on Climate Change, 1771 UNTS 107, S. Treaty Doc No. 102-38, U.N. Doc. A/AC.237/18 (Part II)/Add.1, 31 ILM 849 or the 2010 United Nations Environmental Programme Nagoya Protocol to the 1992 Biodiversity Convention on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity ,1760 UNTS 79, 31 ILM 818. 184 SANDS & PEEL (2012) pp.192. 185 Ibid. pp. 195.
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Extra- territorial application of national laws is not generally accepted. States are
called to cooperate and reach international consensus in order to define the
environmental policies that may be applied to areas beyond any national jurisdiction or
transboundary resources186.187
2.2. NO HARM
The second element of the binomial is the sic utere principle (also called no harm
principle), which has been codified in Principle 21 of the Stockholm Declaration188 and
in Principle 2 of the Rio Declaration189. No harm can be understood as each state’s duty
to ensure that their activities do not cause damage to the environment of other states or
common goods and interests190. The ICJ, in its Advisory Opinion with regard to the
Legality of the Threat or Use of Nuclear Weapons (1996), understands the no harm
principle as forming ‘‘part of the corpus of international law relating to the
environment”191.
The principle includes the protection of areas beyond the state’s jurisdiction,
such as the high seas or the Antarctic192. The no harm principle constrains the sovereign
rights over natural resources, as states are not allowed to use their territory to cause
damage in third states or the areas beyond national jurisdiction.
186 Ibid. 187 Stated, inter alia, in the 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (vol I), 31 ILM 876; Principle 13: “Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.” 188 1972 Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14 and Corr.1, 11 ILM 1416. 189 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876. 190 See ICJ Gabcikovo-Nagymaros Project (Hungary v Slovakia), Judgement, ICJ Reports 1997 p. 7 para. 53 (1997). The Court recalls the importance of respecting the environment and links it with the respect the human kind as a whole. The Court states the following: “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and 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”, paraphrasing the content of the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, pp. 241-242, para. 29. 191 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996. At para 29. Available online at: http://www.refworld.org/docid/4b2913d62.html 192 See BEYERLIN & MARAUHN (2011) pp. 39 supra.
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As it was stated earlier, the no harm duty includes ex ante and ex post measures.
It calls for states to take preventive actions in order to not cause harm to other states or
the Common Goods. Once environmental damage is caused, it entitles the state that
suffered the damage to claim for reparation; the state that fails to fulfil the no harm
obligation, causing environmental damage, could be held internationally responsible
and may face legal consequences.193
The main concept that needs to be understood here is transboundary damage;
which can be defined as damage that arises from certain activities carried out by a state,
resulting in adverse consequences being inflicted on the jurisdiction of a third state or
on the Common Goods194. Nevertheless, there is no specific definition of “damage” or
“injury” in International Law.195
The no harm principle was first endorsed in the well-known Trail Smelter
case196, submitted to arbitration in 1935. The case concerns a dispute between Canada
and the US; a smelting plant located in Canada was creating polluting emissions that
caused damages within the US territorial jurisdiction. The Court established that no
state has the right to carry out activities if they caused harm in third states, but it added
that the prohibition only involves cases of serious harm. The Draft used the term
“significant”, and the ILC197 clarified the meaning of this ambiguous term, establishing
that “significant” is more than detectable but it should not be understood as “serious or
substantial”.
If a state is the victim of transboundary harm, but the damage is not significant,
then the state would not be entitled to claim for reparation. One of the main reasons for
this derives from the balance of rights established by the polluters pay principle, which
has been discussed the previous Chapter. There is a certain level of environmental
interference that is acceptable and that states are expected to tolerate198.
193 Ibid. 194 HANQIN, (2003).” pp. 3. 195 United Nations, International Law Commission. (2002), The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries” pp.29. 196 EE.UU v Canada- Trib. Arbitral, 3 O.N.U Rep. Int’l Arb. Trail Smelter case. (1941). 197 See the International Law Commission’s Commentaries to the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities,” in Report of the International Law Commission, Fifty-Third Session, Supp. No. 10, UN Doc. A/56/10 et seq. (2001). 198 See BEYERLIN & MARAUHN, (2011) pp. 39- 46.
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2.3. CONCLUSIONS SECTION 2, STATES RESPONSIBILITY BASIS
The norm of customary international law is simple; it claims that states must abstain
from damaging third states or the Commons. These principles are supposed to provide
guidance to states, but they do not offer much information by themselves. They require
some complementary instruments in order to become significant.
Research has shown that the aforementioned principles do not refrain states from
carrying out activities that may cause damage to the environment of a third state.
Moreover, harmful activities are a generally accepted practice, and almost every state
contributes to environmental degradation in one way or another.
States do not have the duty to stop activities that cause harm on the environment;
they have the obligation of preventing the damage. The damage caused would be lawful
if it is not serious enough; furthermore, it is also never easy to determine the threshold
under which significant damage is constituted.
3. STATE RESPONSIBILITY REGULATION
State Responsibility usually involves the right of the injured entity to claim for
restitution or reparation, but it could also encompass other legal rights. State
Responsibility is placed in the public international law arena. While civil liability
creates relationships between private entities, state responsibility creates a relationship
between states or other public entities199.
There is no treaty that deals with the liability of states in cases of environmental
damage explicitly. The basic regulation within State Responsibility in international law
is set out in the Draft Articles on the Responsibility of States for Internationally
Wrongful Acts on August 2001200. This instrument embodies customary International
Law, and is complemented with other instruments with specific approaches to different
issues. The legal instruments used to approach liability environmental matters are
introduced below.
199 United Nations Environmental Programme (2007) “Training Manual on International Environmental Law” pp. 52. UNEP/Earthprint. 200Draft Articles on Responsibility of States for Internationally Wrongful Acts in ILC “Report of the International Law Commission on the work of its 53rd Session (23 April-1 June and 2 July- 10 August 2001). UN DOC A/56/10 et seq. (Hereafter ILC Draft).
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3.1. DRAFT ARTICLES ON THE RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS
States had not formally adopted the Draft and, accordingly, it does not have binding
force, but it provides a valuable guide for the development of international law201.
The Draft is not indented to identify or set out the states’ obligations under
international law with regard to environmental damage. The purpose of the Draft is in
identifying the general circumstances under which a state can be held liable. Generally,
the Draft would need some material regulation that establishes the concrete legal
provisions applicable to the particular case 202 . Even though the Draft does not
specifically address environmental issues, it would have a direct impact on them.
3.1.1. Structure of the Draft
The Draft is divided into four parts. Part I deals with definitions and requirements that
need to be satisfied in order to consider a state responsible for a breach of the no harm
principle. Part II focuses on the consequences that may arise once the responsibility has
been allocated; the cessation of the unlawful activity and reparation of the damages are
particularly important within environmental law. Part III deals with the implementation
of the international responsibility and Part IV contains the general provisions.203
3.1.2. Main content of the Draft
State responsibility arises when a state commits a wrongful act or fails to fulfil its
international obligations and, as a result, a third state or the commons suffer damage.
There are two main elements required for responsibility to arise: a breach of an
international obligation and the imputability of that breach to a certain state204.
There is only a breach of an international obligation if a state is bound by this
obligation at the time that the breaching act takes place205. Disregard of the obligations
under a treaty ratified by a state or unlawful intromissions in third state territory may
entail state responsibility. Some exceptions to responsibility are provided, a state is not
to be liable if the act that constitutes a breach of an international obligation is due to
force majeure, consent, self-defence, countermeasures, distress or necessity206.
According to Articles 34, 35 and 36 of the Draft and the case law207, once a state
is held responsible for a wrongful act, a new binding obligation arises, and the
responsible state must provide appropriate reparation to the victim.
A state can be responsible for actions carried out by another state if the first state
offers aid, controls or coerces the offending state to perpetrate the act208.
3.1.3. Nature of the act from which states responsibility arises
It is not clear within customary international law if there must be intention, recklessness
or negligence in order to consider a state responsible of a breach of an international
obligation. It is not clear either if the Draft sets out a fault based system or a strict
liability system. The Draft does not establish any difference between contractual and
tortuous liability.209
Nevertheless, how the act is committed would be taken into account when it
comes to the assessment of the corresponding compensation; according to the Draft,
Article 39 “In the determination of reparation, account shall be taken of the
contribution to the injury by wilful or negligent action or omission of the injured State
or any person or entity in relation to whom reparation is sought.”210.
3.1.4. Imputability
As it has been said, a state could only be held responsible for acts that are attributable to
it211. The conditions for imputability are established in Chapter II of the Draft. Mainly, a
state will be responsible for the acts carried out by its government, any political sub-
division or any person or entity empowered to exercise governmental authority while
they are acting within the scope of their employment. A state is responsible for all the
acts carried out by its officials, without regard to their status212. A state could be held
206 Articles 20 to 25 ILC Draft. 207 See also Factory At Chorzów case (Germany v Poland, 1928), Judgment No 13, (PCIJ Series A No 17, ICGJ 255 (PCIJ 1928). 208 Articles 16 to 18 ILC Draft. 209 WALLACE & MARTIN-ORTEGA (2009) pp. 197. 210 To this regard see the LaGrand case (Germany v United States, 2001), 40 ILM 1069. 211 WALLACE & MARTIN-ORTEGA (2009) pp. 198. 212 See the Rainbow Warrior case, (France v New Zealand Arbitration Tribunal, 1987), 26 ILM 1346.
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liable for official employees or bodies conduct, even though their competence has been
exceeded. It may also be responsible for the acts taken under municipal law.213
The state would not be responsible for acts carried out by a national (private
individuals) against a foreigner.214 Under the Draft, a State is not responsible for private
operators in general. It would not be responsible either for the conduct of insurgent or
rebel groups, but if those groups succeed and become the legitimate government, this
new government will face responsibility arising from their previous acts215.
3.1.5. Erga omnes obligations
The Draft focuses on the obligations between states, though Articles 40 and 41 claim
that states can be held responsible for the breach of erga omnes obligations, that are
owed by every single state to the international community as whole216. Erga omnes
obligations do not require ratification and do not need to be promulgated by any legal
instrument; they are directly applicable and enforceable. The rights involved justify the
special nature of these obligations, and all the states are concerned in the protection of
these rights.217
Article 40 establishes that the obligation must arise under a peremptory norm of
international law and that the breach should be significant. A breach would be
considered significant enough if it involves a gross or systematic failure to fulfil the
erga omnes obligation218. Article 41 calls for states to cooperate in order to avoid and
condemn the serious breaches of erga onmes obligations.
3.1.6. Who is entitled to invoke state responsibility?
In regard to access to justice, Article 42 of the Draft sets who is entitled for invoking
responsibility. The whole international community, a of states group or a single state
213 WALLACE & MARTIN-ORTEGA (2009) pp. 199. 214 Ibid. 215 Ibid, pp. 200. 216 See ICJ case Barcelona Traction, Light & Power Company Limited (Spain v. Belgium, 1970) IJC reports 1970, p.33 para 33. which reads as follows “ In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of al1 States. In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection; they are obligations erga omnes.” 217 See WALLACE & MARTIN-ORTEGA (2009), pp. 201. 218 See Article 40 (2) ILC Draft.
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could be entitled to claim for reparation if they can prove a special connection with the
damage. Private entities cannot invoke state responsibility under the Draft.
Within the scope of international environmental law, in cases such as climate
change, were the commons injured, it would be difficult to establish a genuine
connection between the injury and the claimant.
3.1.5. Reparation and compensation
When a State is held liable for committing an international wrongful act, it is compelled
to make full reparation of the injury caused, including any kind of damages219, both
moral and material.
In the Chorzow Factory220, the I.C.J held that “reparation must, as far as
possible, wipe-out all the consequences of the illegal act and re-establish the situation
which would, in. all probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the
value which a restitution in kind would bear; the award, if need be, of damages for loss
sustained which would not be covered by restitution in kind or payment in place of it-
such are the principles which should serve to determine the amount of compensation
due for an act contrary to international law”. The Draft follows a similar approach; the
previous conditions must be restored if it is possible; if it is not, the perpetrator state
must compensate the injured state. The compensation shall include every “financially
assessable damage including loss of profits”221. This means, that under the Draft,
environment damage could be understood widely, and that as long as damages are
219 Although the Draft does not tackle environmental damage individually, other international instruments provide a valuable guide, for example the taken United Nations Governing Council, Decision nº 7 of 17th March 1992, UN Doc. S/AC.26/1991/7/Rev.1, establishes that the reparation “includes 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”. 220 Factory At Chorzów, Germany v Poland, Judgment, Claim for Indemnity, Merits, Judgment No 13, (1928) PCIJ Series A No 17, ICGJ 255 (PCIJ 1928), 13th September 1928. 221 See Article 36 ILC Draft.
59
assessable, such damages shall be compensated. In practice, compensation or restoration
is usually negotiated between the involved parties 222.
If restoring or compensating the damage is not possible, the offender state is
compelled to give satisfaction to the injured state. For example, the offender state shall
recognize the breach or apologize for the acts it has carried out. 223
There are two exceptions to the reparation obligation: when it is materially
impossible and when it involves a burden out of all proportion to the benefit deriving
from restitution instead of compensation.224
3.1.6. Conclusions of subsection 3.1, Draft Articles on the Responsibility of
States for Internationally Wrongful Acts.
The Draft has a few strengths, and a lot of weaknesses regarding the coverage of
environmental harm and states responsibility. Is important to highlight that Draft
provides general rules tackling responsibility matters, but there is a lack of specific
standards adjusted to the special characteristics of environmental damage, as is not
intended to solve the environmental crisis.
The Draft is focused on wrongful acts or omissions that constitute a significant
breach of an international obligation. However, one of the most acute current
environmental problems, climate change, is not product a of a mere act or omission, it is
produced by a large chain of acts and omissions. Environmental policies of dubious
quality taken by a state are not harmful per se, but they have a great impact on
commons and on third states environments. The common interest of caring for the
environment is unlikely to be considered as an erga omnes obligation, most of the
pollution does not constitute a breach of an international obligation, and therefore is
lawful. It would be difficult to identify a significant breach of an international
obligation in order to address injuries caused due to climate change. Further more, the
Draft does not set out any specific rules about who may claim for the damages or
injures caused to the common goods or to the global environment, such as the high seas,
climate, air or ozone layer.
The Draft does not settle or recommend any body of dispute settlement, which
may come from the fact that it is substantive regulation, usually complemented by
specific regulation. However, it should at least suggest a particular body for dispute
settlement, just in case the matter is not regulated or the concrete regulation does not
provide for any particular body.
In spite of its shortcomings, the Draft is adequate to tackle certain cases, which need
to meet the following requirements:
1. Significant, immediate, identifiable and assessable transboundary pollution.
2. Attributable and produced by the entities acting on behalf of a state (identifiable
polluter).
3. The injured state has a genuine connection with the injury (access to justice
requirements)
4. The act carried out by the offender state is unlawful.
The Draft coverage is therefore rather limited in scope, only a few cases of
environmental damage are addressed by its provisions. It proves, however, the
difficulties of drafting and agreeing common principles and rules in international law to
deal with responsibility for environmental damage.
3.2. STATE LIABILITY FOR ENVIRONMENTAL DAMAGE
3.2.1.BACKROUND: PREVENTIVE ACTION-DRAFT ARTICLES IN THE PREVENTION OF TRANSBOUNDARY HARM FROM HAZARDOUS ACTIVITIES
In 2001 the I.L.C adopted the Draft Articles in the Prevention of Transboundary Harm
from Hazardous Activities225. It consists of a preamble and 19 articles. As with the
Draft Articles on the Responsibility of States for Internationally Wrongful Acts on
August 2001, this Draft is composed by substantive norms, and it would usually be
complemented with other specific regulations 226. The Draft is not considered customary
in international law, but it embraces some of its principles, such as the no harm
principle. This legal instrument is focused on the prevention principle; it follows an ex
ante approach. It sets out a number of procedural duties that aim to avoid significant
225 ILC Draft Articles in the Prevention of Transboundary Harm from Hazardous Activities, Report of the International Law Commission on the work of its Fifty-Third Session (23rd April- 1st June and 2nd July-10th August 2001) UN Doc. A/56/10. (Hereinafter ILC Draft on Prevention). 226 See e.g. the Pulp Mills case, where the Court interprets the 1975 Statute of the River Uruguay taking the ILC Draft on Prevention a reference.
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transboundary harm, and once the state concerned fails to fulfil the international
obligation and significant damage occurs, liability may arise.
Article 1 limits the scope of the Draft; it concerns activities that are not
prohibited by International Law but involve huge transboundary risk, the consequences
of the materialization of those risks have a particularly devastating impact on the
environment.
The Draft provides for procedural obligations in case of hazardous activities. If a
state wants to carry out activities of this kind, it needs to prepare a risk assessment
covering the harm that might be caused by the activity227. The Draft does not establish
what content the risk assessment must include228, nevertheless, it is clear that the state
should conclude whether the activity is likely to cause significant transboundary harm
or not. States are also required to notify and provide information to the states that may
suffer the consequences of the activities229 and they must consult the affected countries
in order to reach acceptable solutions in a reasonable period of time 230.
A state should also make a balance of interests, taking into account the pros and
cons, the degree of risk, the possibilities of preventing the damage, the available means
for repairing or minimizing the damage or the importance of the activity for the origin
state231.
Although the Draft does not make reference to liability, it sets out obligations
that must be fulfilled by state party. It plays an important role, as a disregard of the
obligations set out by the Draft could entail a state’s liability.
3.2.2. DRAFT PRINCIPLES ON THE ALLOCATION OF LOSS IN THE CASE OF TRANSBOUNDARY HARM ARISING OUT OF HAZARDOUS ACTIVITIES
The Draft232 develops the content of Principles 13 and 16 of the 1992 Rio Declaration233
and Principle 22 of the 1972 Stockholm Declaration234, in regard to the states obligation
227 Article 7 ILC Draft on Prevention. 228 Other instruments such as the 1991 Convention on Environmental Impact Assessment in a Transboundary Context, 1989 UNTS 310, provide in detail the content that should include an environmental risk assessment. 229 Article 8 ILC Draft on Prevention. In regards to the obligation to notify third states, see also the Corfu Channel case, Judgment of April 9th 1949: I.C. J. Reports 1949, p. 4. 230 Article 9 ILC Draft on prevention. 231 Article 10 ILC Draft on Prevention. 232 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities. Official Records of the United Nations General Assembly, fifty-eight session (1st
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to regulate liability arising from environmental harm within their national law and the
obligation to cooperate in developing international law tackling environmental damage.
The Draft consists of 8 Principles. Principle 1 sets out the scope of the Draft,
which is to be applied to transboundary damage caused by hazardous activities not
prohibited by International Law.
The purpose of the Draft is to protect the environment in the event of
transboundary harm and to ensure “prompt and adequate compensation to the
victims”235. It is applicable when the damage cannot be prevented. According to the
Draft, states must develop liability rules within their domestic legal systems in order to
tackle transboundary damage caused by hazardous activities. State parties have to
ensure that compensation is available for victims and take measures that include the
imposition of liability to the polluter. It establishes a strict liability system, as Principle
4 sets out that “liability should not require proof of fault”. States should also require the
private operators carrying out hazardous activities financial guarantees, such as
insurance, in order to face the claims for damages236.
The Draft channels liability to the private operator, as it is going to be the main
benefit receiver237. Nevertheless, it provides for the supplementary liability of other
entities if they control, command or exercise the hazardous activities. This would mean
that if a state controls, commands or exercises these kinds of activities, nothing would
prevent the concrete state from being held liable for the damages caused.
The principles set out by the Draft are very generic and, although they provide
guidance to regulate liability arising from environmental damage, its relevance is
limited as it does not go beyond what other international legal materials have already
established: states have a duty to prevent environmental damage and should regulate the
liability relationships that may arise in the case that environmental damage occurs.
May – 9th June and 3rd July -11th August 2006), Un DOC.A/61/10. (Hereinafter 2006 ILC Draft Principles). 233 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876. 234 1972 Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14 and Corr.1, 11 ILM 1416. 235 Principles 3 and 4 2006 ILC Draft Principles. 236 Principles 4 and 7 2006 ILC Draft Principles. 237 Principle 4 2006 ILC Draft Principles.
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4. CASE LAW: A PRACTICAL EXAMPLE OF THE PROBLEMS
4.1. INTRODUCTION
States responsibility or liability will arise on few occasions; as it has been explained,
most of the pollution does not constitute an international wrongful act or a breach of an
international duty. This leads to a situation where state responsibility does not give an
acceptable solution in many cases of transboundary harm. In practice, as the case law
shows, the application of the instruments regulating states liability and responsibility by
international courts has been modest. In this section, a practical example is used to
expose the problems arising from states responsibility will be introduced.
4.2. INUIT PETITION
4.2.1 The Claimant: Inuit people
Climate change has already had serious impacts in many regions of the world. The
Arctic has been one of most affected areas. In the Arctic, the effects of climate change
pose a serious threat to the survival of indigenous communities. For example, the Intuits
are an indigenous population, traditionally living on the arctic regions of America and
Siberia. They are highly dependent on the natural resources available on the Arctic,
which are vulnerable to climate change. Furthermore, Intuits do not have the financial
resources to adapt their way of living to their new reality. Their cultural identity is in
danger, as they cannot carry out their traditional activities, such as hunting or fishing
certain species, which are also in great danger. As such, climate change is depriving the
Inuit population of their right to practice their culture.238
The table239 below explains the risks and potential of adaptation of the natural
resources in the Arctic and the indigenous population who inhabit it, mainly, the Inuit
people. As the table shows, in the near term (2030-2040), natural resources and the
population will face a high risk, with no adaptation prospects, while the health of
inhabitants of the Arctic will face a medium to high risk, and their social system will
face a high to very high risk, depending on the level of adaptation. In the long term
(2080-2100), natural resources, health and well-being of the Inuit population and their
238 ATAPATTU (2009) and ATAPATTU (2008). See also OKOWA (2010). 239 IPCC, 2014: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, United Kingdom and New York, pp. 1594.
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social sytem face a high to very high risk depending on the adaptation. Some of the
adaptation measures include: shifting resources bases, land use and settlement areas,
implementation of western technology and educational systems onto the Inuit society,
hunting or fishing new species and searching for new sources of income. At this point,
the questions arising are: Would Inuit be still Inuit if the abovementioned changes are
perfom? Could it be said that Inuit people have rigth to practice their own culture?
4.2.2. The defendant: United States of America
The US is the largest emissary of greenhouse gases 240. However, it is not a signatory of
the Kyoto Protocol241 and is not bound by its principles. Nevertheless, the US is a
contracting party of the UNFCCC242, which also sets out obligations243 regarding the
reduction of the emission of greenhouse gases. The Inuit population also contributes to
240 Nearly the 20% of the GHG emissions are produced by the US. See WRI (World Resources Institute). 2014. This data can be checked at: Climate Analysis Indicators Tool (CAIT) 2.0: WRI's climate data explorer: http://cait.wri.org. 241 1997 United Nations Kyoto Protocol to the United Nations Framework Convention on Climate Change, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22. 242 1992 United Nations Framework Convention on Climate Change, 1771 UNTS 107, S. Treaty Doc No. 102-38, U.N. Doc. A/AC.237/18 (Part II)/Add.1, 31 ILM 849.(Hereinafter UNFCCC) 243 The UNFCCC sets out in paragraph 8 of its preamble that states have the sovereign right to exploit their natural resources and the obligation to ensure that their activities within their jurisdiction or control do not cause damage to other areas or beyond the limits of national.
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climate change, but its contribution is likely to be irrelevant in comparison with the US
or other big emissaries.
4.2.3 The Petition
In December 2005, the Inuit Circumpolar Conference244 filled a petition245 before the
International Inter-American Commission on Human Rights, alleging that the US
Government, by failing to reduce its greenhouse emissions, is contributing to climate
change, which has had a disproportionate impact on the Arctic region. This has lead to a
breach of the indigenous population’s human rights, who they suffer consequences on
their health and socioeconomic system246.
It is important for the purpose of this research to highlight how the Inuit
population attempts to remedy the situation by calling on, among others, Human Rights,
the commitment of reducing emissions assumed by the US under the UNFCCC and
state responsibility for violating the principle of no harm247.
The human rights that they consider to have been breached, within the scope of
international instruments ratified by the US248, include: the right to the benefits of their
244 The International Circumpolar Conference is an International Indigenous Organization that represents Inuit population living in the Artic regions of Alaska, Canada, Greenland and Chukotka (Russia). Nevertheless, the Petition refers to a breach of rights of the Inuit population of Alaska and Canada. 245 Full petition available at: http://earthjustice.org/sites/default/files/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf Summary of the petition available at: http://www.ciel.org/Publications/COP10_Handout_EJCIEL.pdf 246 In this regard the Petition states: “Sea ice is a critical resource for the Inuit, who use it to travel to hunting and harvesting locations, and for communication between communities. Because of the loss in the thickness, extent and duration of the sea ice, these traditional practices have become more dangerous, more difficult or, at times, impossible. In many regions, traditional knowledge regarding the safety of the sea ice has become unreliable. As a result, more hunters and other travellers are falling through the sea ice into the frigid water below. The shorter season for safe sea ice travel has also made some hunting and harvest activities impossible, and curtailed others.” In this statement is easy to identify two main groups of adverse consequences, the consequences on the Inuit’s health and the consequences on their economic and social systems, which are in great danger. 247 See pp. 99 and 100 of the full Petition. Even though the Petition does not make any explicit reference to of the aforementioned Drafts, it makes reference to “prohibition on transboundary harm has also been included in numerous widely accepted treaties and declarations over the past several decades” and to customary law regarding states responsibility. 248 It is worthy to highlight that the United States of America has ratify the following agreements and is bound to its principles: American Declaration of the Rights and Duties of Man, OAS. Res. XXX, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); 43 AJIL Supp. 133 (1949), the International Covenant on Civil and Political Rights (ICCPR) UN Doc. A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967) and the International Covenant on Economic, Social, and Cultural Rights (CESCR) UN Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967). Is also convenient to remain that the US is also bound by the no-harm
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own culture, the right to life and personal security, the right to residence and movement,
the inviolability of the home, the right to health and well-being and the right to work
and fair remuneration.
In the petition, the claimant requested for the adoption and implementation of a
plan to protect their land, and financial assistance to the Inuit population, so that they
could adapt their way of living according to the detrimental impacts caused by climate
change in their lands. This takes into account the point that these damages are
irreversible or could not be avoided. The claimant considered that the damage has
already been proven to be “significant”.
4.2.4 Rejection of the Petition
The petition was rejected on the following grounds: the damage is not attributable249 to
the US following the rules set out by international law (the causal link between the
identified polluter and the damage is not established), and secondly, the acts alleged by
the claimant do not constitute a breach of any US international obligation.
The court found that the damages were not attributable to the defendant.
Providing solid evidence in this kind of case presents a great challenge; proving that the
US government has caused those damages directly is an almost impossible task. The
causal link under traditional law will require proving that the damages caused to the
Arctic are directly related to the GHG emissions generated by the US. The GHG
emissions are not separable from each other, so the claimant could not identify which
emissions were generated by the US, and which emissions were generated by third
countries. Another problem they encountered is that the State of the US is not the direct
emissary of GHG emissions; the activities that generate the GHG emissions are usually
controlled, commanded or exercised by private entities, under private law.
Even if the Commission had found the US responsible for the damage under
International Law, the responsibility would have been for the portion of climate change
caused by the US. The calculation of this portion is rather difficult, as every state
contributes and, therefore, every state would be responsible for the damage caused to
the Arctic region. Each state contributes in different proportions, and these proportions
principle and therefore, it should refrain from causing transboundary environmental harm to third states. No-harm principle has been described in preceding sections in this chapter. 249 There are difficulties within public liability that also operate in private liability; it is important to highlight the problems discussed in the introduction of this research also arise within public liability. See OKOWA (2010).
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differ greatly from one another. The causal link becomes even harder to establish if the
future damage is taken into account, as there is scientific uncertainty of any future
damages that climate change may cause.
Even though is it obvious that environmental policies taken by the US
government contribute significantly to the deterioration of the Arctic region, under
traditional international law, the US cannot be held responsible for the damages suffered
by the Inuit population.
Another point worthy to be highlighted is that it 3is a situation of David out
against Goliath (and this time, Goliath is likely to be the surviving one). Although Inuit
people and US should be equal under the solidarity principle, it cannot be ignore that
there is a huge contrast between the weight of the interests of the western states versus
the weight interest of the Inuit or other indigenous populations. The chances of the
Indigenous population of impacting in the global decision-making process are rather
limited.
5. CONCLUSIONS OF CHAPTER 3:
Public international law, and more precisely, state responsibility or liability, cannot be
considered irrelevant in the arena of reparation of environmental harm. However,
nowadays, it far from covers or solves many of the problems that arise. The lack of
defined and effective standards for determining states responsibility reduces its
effectiveness greatly, and in many cases it will not provide for an adequate reparation or
compensation to the victims.
States international responsibility regarding environmental damage suffers from
a lack of legal instruments that define what a wrongful act is. There is no specific
regulation for this field, so customary law is applied, and is not always suitable,
especially due to the unusual characteristics of environmental damages. States
responsibility only arises when the pollution is considered as a wrongful act or a breach
of an international obligation, and when at the same time, that action or omission is
attributable to a state. If pollution, even though it is harmful, is lawful, states are not be
held responsible for its detrimental consequences. At the European level, the legal
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framework does not offer outstanding improvements, and for this reasons it has not
been discussed250.
Despite the high number and the seriousness of the cases of transboundary
pollution, the progress in this field is very limited; the efforts for creating international
instruments have not given successful results. Most states have been unwilling to adopt
specific standards; in general, states have been reticent to adopt agreements that may
involve state responsibility for activities caused by private entities, which usually are
the direct source of pollution.
Cases such as the Inuit Petition regarding the impact of climate change in their
lands pose a huge challenge to the international community. If international public law
should address such cases, traditional rules of states liability and responsibility should
be reconsidered. Public international legislation does not currently offer an appropriate
answer to victims of environmental damage in many cases. A solution for this kind of
damage is needed, but state responsibility or liability might not be the right tools. In
subsequent chapters, other instruments of private law are discussed, which might be
more in accordance with the nature and special characteristics of environmental
damage.
250 For further information see: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al14553
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CHAPTER 4: CIVIL LIABILITY IN INTERNATIONAL LAW
1. INTRODUCTION
As it was set out in the introduction of this research, environmental can rise from
private law, entailing the establishment of legal relationships among private entities.
The increasing emergence of multinational companies, as well as national companies
operating abroad, has led to increased international environmental disputes between
private entities. This has highlighted the need for effective regulation, tackling the
relations between private individuals in order to prevent these companies from
circumventing the liability arising from such damage251. This need for regulation has
been reflected by an increasing trend towards the realization of international agreements
which ensure the private operator's liability for environmental harm, channelling
obligations to their direct recipients252, who are not usually states or public entities, but
individuals or other private entities253.
This Chapter focuses on civil liability schemes developed at the international
level. Civil liability schemes are more matured and complete than criminal or
administrative remedies at the international level. Civil labiality does not address
whether an act that causes the environmental harm is lawful or unlawful. Under civil
liability, the obligation to repair arises from the unfair aversive consequences of an
action. Within this context, civil regulation would be applicable when transboundary
pollution (which occurs when there is damage to the environment and there is an
international element254) produces a detrimental effect on a legal entity’s legitimate
interest or right. In addition, as earlier noted, civil liability needs to identify several key
elements:
1) Who causes the damage? (Identify the polluter)
2) Who suffers the damage? (Identify the victim in order to establish the entity
that has the right to be repaired or compensated; this point is closely related
to effectiveness to access to justice)
3) A causal link between the damage and the defendant (causation)
251 Ibid. 252 LOUKA (2006) pp. 488 et seq. 253 BEYERLIN & MARAUHN, pp. 368. 254 Such as international capital or an international operator.
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4) The economic value of the loss or damage (economic assessment of the
damages)
5) Competent forum (access to justice)
Here civil law seeks for the reparation or compensation of the damage suffered
by a legal entity. In some contexts, civil liability it may also cover pure ecological
damage, in which no legal entity suffers loss or injury in its legitimate rights, but the
environment is the victim itself. For purpose of covering pure ecological damage, a
public or private entity is entitle to claim for the damages caused to a common good,
even if damaged good it is not owned or controlled by such entity.
This Chapter deals with the most relevant non-contractual liability schemes
regarding environmental harm255. At the international level regulations enclose the
material rules or the substantive law, which directly addresses the legal regime
applicable to the non-contractual obligation. The rules that determine the jurisdiction
are mentioned without going into detail, since they have a modest impact on the way the
victim will be compensated, or how the damage will be repaired.
It should be noted that sometimes state responsibility will arise jointly with civil
liability, for example if the damage is caused by an operator but at the same time the
state fails to fulfil an international obligation, such as the obligation to notify other
parties of environmental emergencies256.
2. OIL POLLUTION
2.1. INTRODUCTION
The response to a number of oil spills in the ocean has resulted in the anti-oil pollution
regime, which focuses on the pollution made by ships257. The regulation does not cover
accidents occurring in oil platforms or other oil-related accidents, even if those incidents
have a negative impact on the sea.
255 Some of the instrument that will not be discussed in this research are: the 1956 Antarctic Treaty; 402 UNTS 71; 19 ILM 860 and 1991 Protocol of Environmental Protection to the Antarctic Treaty; ILM, 30 , 1989 United Nations Economic Commission for Europe Convention of on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels 10 October 1989. UN Doc. ECE/TRANS/79, 1996 United Nations International Maritime Organization Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea; 35 ILM 1996, pp. 1415 ff. 256 See for example how States’ responsibility and nuclear civil liability work jointly in KECSKÉS (2008). 257 See CALVO CARAVACA & CARRASCOSA GÓNZALEZ (2013) pp. 1150 and 1551.
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There are several legal instruments governing the non-contractual obligation
surrounding the subject of marine pollution by hydrocarbons. This research focuses on
the main regulation, the 1969 Convention on Civil Liability for Oil Pollution Damage
amended by the Protocol 1992, to amend the International Convention on Civil Liability
for Oil Pollution Damage258, and several conventions establishing international funds
for compensation for oil pollution damages.259
2.2. 1969 CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE AMENDED BY THE 1992 PROTOCOL.
1969 Convention amended by the 1992 Protocol provides a unifying substantive
regulation regarding civil liability when it arises from sea pollution that is caused by oil
spills from ships transporting hydrocarbons. Oil spills in the ocean usually involve very
serious damages, which generally affect several states and a great number of persons260,
as the Nadhodka (1997), the Erika (1999) or the Prestige (2002) incidents demonstrate.
The 1992 Protocol involves important modifications to the 1969 Convention,
compensations limits were expanded and further zones of the sea were covered.
However the 1992 Protocol is not applicable to all the states parties to the 1969
Convention, it needs to be ratified by the states parties in order to became
enforceable.261
The 1969 Convention amended by the 1992 Protocol settles a strict liability
scheme where no fault is required; if the damage is caused, liability shall arise, even if
the causal link between the ship owner and the damage could not be established. The
entity that is to be liable can avoid liability if he proves one of the exemptions to
liability.
258 1969 Convention on Civil Liability for Oil Pollution Damage, 973 UNTS 3, 9 ILM 45, amended by 1992 Protocol to amend the International Convention on Civil Liability for Oil Pollution Damage, 1956 UNTS 255. (Hereinafter 1969 Convention and 1992 Protocol). 259 Note that the abovementioned regulations are ratified by the Member States of the EU. Furthermore, since The Erika and Prestige incidents some proposals and measures have been developed in order to improve the effectiveness of liability arising from oil damages. For further information see WETTERSTEIN
(2004). 260 CALVO CARAVACA & CARRASCOSA (2013) pp. 1150 and 1151. 261 LOUKA (2006) pp. 451 to 456. See also WANG (2011) and CALVO CARAVACA & CARRASCOSA (2013) pp. 1150 to 1154.
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2.2.1. Scope - Where is the Convention applicable?
The 1969 Convention amended by the 1992 Protocol covers oil spill consequences
occurring in the territory, territorial sea, exclusive economic zone, or equivalent, of a
state party to the Convention 262 , regardless of other circumstances such as the
nationality of the ship. The Convention is also applicable to damages caused to any state
party in the high seas or other zones of the ocean beyond the jurisdiction of any state263.
Pure ecological damage is not addressed by the 1969 Convention amended by the 1992
Protocol,
2.2.2. Assessment of damage - What does the compensation include?
Under the Convention, compensation includes any loss or damage caused, plus the loss
of profit and the appropriate cost for preventive measures for harm avoidance, even if
the damage does not finally occur264. Compensation would be given for impairment of
the environment, but it would be limited to the cost of reasonable measures of
reinstatement undertaken or to be undertaken265. Hypothetical damage may also be
compensated; the measures taken in order to avoid or minimize the damage, or the
damage caused by these preventive measures, shall be borne by the entity held liable for
the spill266.
The Convention does not provide any further guidance for the economic
assessment of the damages, leaving that task to the national judge267.
2.2.3. Identifying the polluter - Who is held responsible?
According to Article 3.1 of the Convention, the ship owner is to be held liable. Other
entities, such as the manager or the charterer, may be held liable if the damage arises
from their intentional acts or omissions, with recklessness, and with knowledge that
such damage would probably result from their conduct268.
262 Article 2 (a) 1969 Convention amended by 1992 Protocol. Note that 1992 Protocol extent the coverage of the Convention to the exclusive economic zone. 263 Article 2 1969 Convention amended by 1992 Protocol. 264 Article 1(8) 1969 Convention amended by 1992 Protocol which refers to “a grave and imminent threat of causing such damage”. 265 Article 1(6) 1969 Convention amended by 1992 Protocol. 266 Article 1(6) (b) and 1(7) 1969 Convention amended by 1992 Protocol. 267 LOUKA (2006) pp. 453. 268 Article 3(4) 1969 Convention amended by 1992 Protocol.
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Under certain circumstances set out by Article 5 of the Convention, the ship-
owner may limit his liability for the damages caused; to this end, the damage should not
be the result of the intentional actions or omissions taken by the owner of the ship, who
should also constitute a fund equivalent to the limit of its responsibility before the
competent authorities under Article 9 of the Convention.
If several ships cause the environmental damage, all owners of vessels involved
will be jointly and severally liable for all damages that cannot be assigned separately to
any of them269.
2.2.4. Exemptions to liability
Exemptions to liability are set out in Article 3.2, the ship owner would not be held liable
if he is able to prove one of the following circumstances:
1) The damage was caused by an act of war.
2) The damage arose out of force majeure (e.g. natural disaster).
3) The damage was caused wholly by acts or omissions through sabotage by
third parties.
4) The damage was wholly caused by negligence or other wrongful acts
taken by the public authorities responsible for maintaining the lights or
other navigational aids.
5) If the person that suffers the damage causes the damage, wholly or
partially, intentionally or due to its negligence, the ship-owner may be
exonerated wholly or partially from liability.
As stated earlier, the 1969 Convention amended by 1992 Protocol establishes a
strict liability system were fault is not required and were the causal link does not need to
be proven by the victim. However, the ship owner shall not be held liable he
demonstrates that the damage arose from one of the situations listed above.
2.2.4. Obligation to take out insurance and its effectiveness
According to Article 7 of the 1969 Convention amended by 1992 Protocol, the ship
carries more than certain amount tons of oil in bulk, the ship-owner has the obligation to
269 Article 4 1969 Convention amended by 1992 Protocol.
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take out insurance or financial guarantee for the value of the limits of liability270 set out
by Article 5(1)271. The vessels that are required to take out insurance are those
registered in a state party to the Convention, or those entering or leaving from a port of
a state party. Even though the compulsory insurance improves the guarantee of
payment, its effect is tempered, as it is only required for ships carrying more than 2,000
tons of oil in bulk.
The enforcement of this rule is carried out through national authorities, which
have to make sure that the registered ships have an adequate insurance policy and a
certificate of insurance on board. Contracting states shall recognize the certificates from
the national authorities of other contracting states.
2.2.5. Rights Extinction
The rights to compensation would be extinguished after three years, from the date in
which the incident took place. Action could be brought up after six years, from the date
that injury occurred. When damage occurs through a series of events, the six-year
period runs from the date of the first event.272
2.2.6. Jurisdiction and recognition of judgements
According to the 1969 Convention, the courts of the state where the damage
materialises shall have jurisdiction, entitled for hearing from the legal actions of the
victims 273 . However, when a fund is constituted according to Article 5 of the
Convention in regard to limits to liability, the courts of the state in which the fund is
constituted have exclusive jurisdiction over the distribution and allocation of such
fund 274 . National law must ensure that remedies in regard to compensation are
accessible for the victims275.
270 1992 Protocol extended the limits of liability, which are the following: (a) 4,510,000 SDR for a ship not exceeding 5,000 units of tonnage; (b) for a ship with a tonnage in excess there of, for each additional unit of tonnage, 631 SDR. However, this aggregate amount cannot exceed 89,770,000 SDR. For further information see: http://www.iopcfunds.org/about-us/legal-framework/1992-civil-liability-convention/ 271 Prior to 1969, the ship-owner did not have the legal obligation to take out any insurance, so even do the victim was successful in the Court action, there was not guarantee of payment of the compensation awarded by the Court, as the ship-owner was very likely to be insolvent. See WANG (2011) pp. 95. 272 Article 8 1969 Convention amended by 1992 Protocol. 273 Article 9 1969 Convention amended by 1992 Protocol. 274 Article 9(3) 1969 Convention amended by 1992 Protocol. 275 Article 9(2) 1969 Convention amended by 1992 Protocol.
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According to Article 10, final judgments rendered by a court with jurisdiction
under Article 9, once the matter is no longer subject to ordinary forms of review in the
state with jurisdiction, the judgment shall be recognized by the other contracting states,
once the formalities required in that state are met. This is unless it was a fraudulent trial
or the defendant was not given reasonable notice or sufficient time to present his
defence.
2.3. CONVENTIONS ESTABLISHING INTERNATIONAL FUNDS FOR COMPENSATION FOR OIL POLLUTION DAMAGE
There are several conventions establishing international funds for compensation of oil
pollution damage. The funds were created through the 1971 Convention Fund for
Compensation for Oil Pollution Damage 276 amended by the Protocol of 1992 277, which
creates a second fund, and the 2003 Protocol278, which establishes a supplementary
fund.
The Fund established by the 1971 Fund Convention proved to be too narrow in
subsequent accidents, as it did not cover all legal issues, and other matters showed up,
so several similar instruments were developed in order to extend the coverage of the
fund279.
These Conventions provide for the possibility of claiming additional
compensation set out by the 1969 Convention amended by 1992 Protocol through
international funds. As a result, civil liability under the 1969 Convention is
strengthened. The victims of oil spills can only claim to the fund if they are unable to
obtain a full and adequate compensation under the 1969 Convention amended by 1992
Protocol 280.
Contributors to this fund are usually big oil enterprises; nevertheless, states can
also join the Funds 281.
276 1971 Convention Fund for Compensation for Oil Pollution Damage. 11 ILM 284. 277 1992 Protocol to amend the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. 1953 UNTS 330. 278 Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992). 279 See WANG (2011) pp. 171 to 183 and LOUKA (2006) pp. 454 to 456. 280 Ibid. 281 Ibid.
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3. NUCLEAR POLLUTION
3.1. INTRODUCTION
The civil liability scheme for nuclear pollution is the longest standing of the
international liability schemes focused on environmental harm; its regulation started in
the 60’s282. The first international instrument regarding liability for nuclear damages
was the 1960 Paris Convention on Nuclear Third Party liability in the Field of Nuclear
Energy283, which established the main principles. The 1963 Vienna Convention on Civil
Liability for Nuclear Damage284 set out a second and separate package of legal
framework to this regard.285
Both Conventions share some features. They both limit liability and establish a
limited period in which to make claims, require insurance or other financial guarantees
to the nuclear operator, channel liability to the nuclear operator, impose a strict liability
system and determine that the judge having jurisdiction would be the national judge of
the place in which the incident occurred.
The main problem of the legal framework related to liability for nuclear
damages is states’ reticence to ratify these Conventions. The main nuclear powers have
not adopted any of the Conventions, and so if nuclear damage occurs, and therefore
civil liability arises, the rules set out by these Conventions would not be applicable to
the damages materialising in non-party states286.
282 FINDLAY (2010) pp.124. See also RIMŠAITĖ (2013). 283 1960 Organisation for Economic Co-operation and Development Nuclear Energy Agency Paris Convention on Third Party Liability in the Field of Nuclear Energy, 956 UNTS 264. (Hereafter 1960 Paris Convention). 284 1963 United Nations International Atomic Energy Agency Vienna Convention on Civil Liability for Nuclear Damage, 1063 UNTS 266, 2 ILM 727. 285 Note that states might be parties of both Conventions, Germany, France, The Netherlands, Spain, Sweden and the United Kingdom are an example, been all of them parties to the 1960 Paris Convention and the 1963 Vienna Convention. To this regard, see BERGKAMP, FAURE, HINTEREGGER & PHILIPSEN (2015) pp. 98. 286 The status of both conventions can be checked. The 1963 Vienna Convention’s status can be cheeked online at: https://www.iaea.org/Publications/Documents/Conventions/liability_status.pdf and 1960 Paris Convention in: https://www.iaea.org/Publications/Documents/Conventions/liability_status.pdf
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This section focuses on the main principles governing nuclear damage, that have
been established out of the 1960 Paris Convention and subsequent international
agreements related to it 287.
3.2. 1960 PARIS CONVENTION ON NUCLEAR THIRD PARTY LIABILITY IN THE FIELD OF NUCLEAR ENERGY
The 1960 Paris Convention of the 29th of July is the core regulation of the liability
scheme for nuclear damage; it was supplemented by the 1963 Brussels Convention288
and amended by four Protocols in 1964, 1982, 1988289 and 2004290. These amendments
are partly due to the lack of awareness about the consequences of nuclear accidents at
the time the Convention was developed. In 1986, the Chernobyl incident made the
international community doubt whether the content of the Convention was appropriate
and effective given the major gravity of the damage.
The Convention establishes substantive rules that directly address the
applicable law to civil liability for nuclear pollution. The fundamental feature of the
Convention is the imposition of a strict liability system.
3.2.1. Scope -Where is the Convention applicable?
The Convention is applicable to domestic and international damage suffered by the
contracting states, regardless of the nationality, residence or domicile of the party that
causes the damages. It does not apply when nuclear accidents occur in countries that are
not a party to the convention, or when non-contracting states suffer damages by other
countries; it would not be applicable to damages in non-contracting states even if the
nuclear accident occurs in a state party of the Convention.291
287 Further information of the 1963 Vienna Convention on Civil Liability for Nuclear Damage can be consulted at: http://www.iaea.org/Publications/Documents/Conventions/liability.html 288 1963 Organisation for Economic Co-operation and Development Convention Supplementary to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy, as amended by protocols of 1962 and 1964, 1041 UNTS 358. 2891988 Organisation for Economic Co-operation and Development Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention; 1672 UNTS. 290 This Protocol is not yet in force, it will enter in force when European States jointly ratify the Convention. 291 Article 2 1960 Paris Convention.
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The Recommendation of the Steering Committee of April 22nd 197292 establishes
that contracting states could extent the scope of the Convention to damages suffered by
them beyond their jurisdiction through national law in order to cover, for example,
nuclear damages suffered in the high seas by a contracting state in a ship registered in a
contracting state, so those damages will be under the rules set in the Convention. Other
damages beyond national jurisdiction could be covered if states parties include in their
domestic legal systems the appropriate provisions. The Recommendation settles three
situations that might be covered by national law:
1. To incidents occurring in the territory of a state party, even if the
resulting damage was suffered on the territory of a non-party state.
2. To damage suffered in the territory of a contracting state if the damage is
a result of an incident occurred in a non-contracting state.
3. To incidents and damages in the territory of non-contracting states.
3.2.2. Assessment of the damage - What does the compensation include?
Under the 1960 Paris Convention, the compensation covers injury or loss of life of any
person plus damage or loss of any property caused by a nuclear accident in a nuclear
facility or caused by the transport of nuclear substances293. National law will determine
the nature form and extent of the compensation in observance of the limits set out by the
Convention294.
The Convention includes rules that limit the amount for which the operator is
responsible for the nuclear damages; 15,000,000 Special Drawing Rights295 as defined
by the IMF. Nevertheless, every state party may establish greater or lesser amounts
taking into account the possibilities of obtaining insurance or the damages that are likely
to arise if an incident occurs296. This limitation has been heavily criticized, as nuclear
292 Organisation for Economic Co-operation and Development Recommendation of the Steering Committee of 22nd April 1971 NE/M(71)1. Available at: https://www.oecd-nea.org/law/paris-convention-dec-rec-int.pdf 293 Article 3 1960 Paris Convention. BERGKAMP, FAURE, HINTEREGGER & PHILIPSEN (2015) pp. 99. 294 Article 11 1960 Paris Convention. 295 The SDR was created by the IMF, as an international reserve asset. For more information consult http://www.imf.org/external/np/exr/facts/sdr.htm. To consult the SDR per currency unit visit: http://www.imf.org/external/np/fin/data/rms_five.aspx 296 Article 7 1960 Paris Convention.
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damages are usually especially devastating and the aforementioned quantity may not
provide the victim with an adequate compensation297.
The national court, having jurisdiction, shall determine compensation for the
impairment of the environment and, therefore, the court will play an important role in
the economic assessment of the damages298.
3.2.3. Identifying the polluter - Who is held responsible?
Liability is charged exclusively to the operator of the nuclear installation, so despite its
fault or negligence; a strict liability scheme is established by the Convention, and such
liability is to be channelled to the operator of the nuclear facility299. Note that the
operator have an option to recourse according to Article 6, if an individual caused the
damage intentionally or if such recourse is expressly provided by contract300.
If the nuclear damage cannot be separated from other damages caused by a non-
nuclear incident, all damages are absorbed by the nuclear incident. This means that, as a
consequence of “channelling liability”, the victim can only make a claim to the nuclear
operator 301.
The operator would also be held liable for accidents occurring during the
transportation of nuclear material. Specific rules with regard to this are established in
Article 4 of the Convention.
3.2.4. Exemptions to liability
Under Article 9 1960 Paris Convention, the operator of the nuclear installation would
not be liable if he proves that the damage was due to one of the circumstances below:
a) Armed conflict, hostiles, civil wars or insurrection
b) An exceptional and grave natural disaster
3.2.5. Obligation to take out insurance and its effectiveness
The operator is required to ensure his liability by taking out compulsory insurance or
providing other financial guarantees. The insurance must cover the maximum amount
297 FAURE (1995). See also TREBILCOCK, & WINTER, (1997) pp. 215 to 243. 298 EMMERECHTS (2008), pp. 14. 299 Article 3 1960 Paris Convention. 300 Article 6 (f) 1960 Paris Convention. See also BERGKAMP, FAURE, HINTEREGGER & PHILIPSEN (2015) pp. 100. 301 Article 3 (b) 1960 Paris Convention.
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established by Article 7 of the Convention. The state in which the nuclear installation is
located should determine the optimal type of insurance or financial guarantees that will
be required.302
3.2.6. Rights Extinction
The operator's liability is limited in time; rights will be extinguished after 10 years from
the date of the accident. Nevertheless, national laws can settle different periods, but
should always respect maximums and minimums established by the Convention.303
3.2.7. Jurisdiction and recognition of judgements
Under the 1960 Paris Convention, exclusive jurisdiction is granted to the state party in
whose territory the damages materialized. If it were impossible to determine where the
incident occurred, the jurisdiction over the actions would lie with the courts of the state
party in which the nuclear installation from which the damage arose is located. If the
incident occurs in several states, special rules would apply.304
Judgments made by the competent shall be enforceable in the territory of any
contracting state, once all the formalities required are fulfilled.305
4. OTHER LEGAL INSTRUMENTES REGARDING CIVIL LIABILITY
4.1. DAMAGES CAUSED BY AIRCRAFTS
The 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on
the Surface, signed at Rome on October 7th, and amended by the 1978 Montreal
Protocol on September 23rd306, covers the damage caused by an aircraft registered in a
state party to the Convention and suffered by another state party to the Convention. It is
relevant within international environmental law since an aircraft crash could cause
environmental damage.
302 Article 10 1960 Paris Convention. 303 Article 8 1960 Paris Convention. 304 Article 13 1960 Paris Convention. 305 Ibid. 306 1952 United Nation International Civil Aviation Organization Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. ICAO Doc. 7364/310 UNTS 182, amended by the 1978 United Nation International Civil Aviation Organization Protocol to amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. ICAO Doc. 7364/310 UNTS 182. (Hereinafter 1952 Rome Convention).
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The Convention provides that liability is to be charged to the operator of the
aircraft307. Nevertheless, liability is limited to a certain amount, except if the incident
occurs due to the fault or negligent behaviour of the operator, in which case the
operator’s liability shall be unlimited308. The person otherwise liable may not be held
liable if the damage occurs as a consequence of an armed conflict or if he was deprived
of the use of the aircraft by public authority 309.
Liability is limited to certain amount, depending on the aircraft weighing310.
Liability is only unlimited if the victim proves that the damage was caused intentionally
by the operator311. Any state party may require the operator for financial guarantees or
insurance up to the limits established by 1952 Rome Convention; this insurance is not
compulsory, a state party to the 1952 Rome Convention has discretion to determine
whether the insurance is required or not312.
The Convention does not provide a definition of “damage”, nevertheless, it
makes clear that the person who suffers the damage is entitled to claim for reparation or
compensation of any personal damages caused by the aircraft, only by proving that the
aircraft caused the damage. Loss of income does not seem to be included in the
compensation that is established313. Damage to the Commons is also not addressed by
the Convention.
The Convention includes rules for setting jurisdiction and a system for the
recognition of judgments314.
4.2. WASTE
The 1999 Basel Protocol on Liability and Compensation for Damages Resulting from
the Transboundary Movement of Hazardous Wastes and their Disposal315 has not yet
307 There are other instruments regulating this subject within Public Law, which exclude the personal liability of the operator; the liability would correspond to state from where the spacecraft is launched. 308 Article 6 1952 Rome Convention. 309 Article 5 1952 Rome Convention. 310 Article 11 1952 Rome Convention. 311 Article 12 1952 Rome Convention. 312 Article 15 1952 Rome Convention. 313 Article 1 1952 Rome Convention. 314 Article 20 1952 Rome Convention. 315 1999 United Nations Environmental Programme Protocol on Liability and Compensation for Damages Resulting from Transboundary Movement of Hazardous Wastes and their Disposal, UN Doc. UNEP/CHW.1/WG/1/9/2. (Hereinafter 1999 Basel Protocol). This Protocol amends the 1989 United Nations Environmental Programme Convention on the Control of Transboundary Movements of
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entered into force; it will do so when 20 states ratify the Protocol316. The Protocol
provides for a liability scheme, rules to compensate the damages arising from the
transboundary movement of hazardous wastes. The Protocol establishes a strict liability
regime317; nevertheless, the person that is to be held liable is to be exonerated of
liability318 if he is able to prove that the damage was caused due to:
a) An armed conflict.
b) Force majeure.
c) The incompliance of compulsory measures by the public authority of the
state where the damage occurred.
d) A wrongful act of a third party.
The Convention gives a broad definition of “damage” and, therefore,
compensation covers personal injures, loss of life, damage or loss of property, loss of
income, the cost of the necessary preventive measures and the cost of measures for the
reinstatement of the impaired environment319. The Protocol is only applicable to
damages caused within the national jurisdiction of contracting states320.
The liability, in general, is charged to the person who has the possession of the
waste. This entity could be321:
1) The person notifying the designated state of the transboundary
movement.
2) The exporter of waste.
3) The importer of the waste.
4) The disposer.
Liability is limited to a certain amount322; nevertheless, this limitation will not
apply to damages caused as a consequence of intentionally wrongful, reckless or
Hazardous Wastes and Their Disposal, 1673 UNTS 126; 28 ILM 657. (Hereinafter 1989 Basel Convention). 316 Article 29 1999 Basel Protocol. See also BEYERLIN & MARAUHN (2011) pp. 373. The current status of the protocol can be checked at: http://www.basel.int/Default.aspx?tabid=1345 317 Article 4 1999 Basel Protocol. 318 Article 4(5) 1999 Basel Protocol. 319 Article 2(2) 1999 Basel Protocol. 320 Article 3(3) 1999 Basel Protocol. 321 Article 4 1999 Basel Protocol.
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negligent acts, or omission, without regard to the obligations set out in the 1989 Basel
Convention. Operators in possession of the waste shall take out insurance or provide
other financial guarantees up to the limit established in the convention in order to ensure
their liability323.
The Protocol also establishes rules to determine the court having jurisdiction and a
system of recognition of judgments. It also requires the state party to ensure access to
justice to victims claiming for compensation under the 1989 Basel Convention or under
the 1999 Basel Protocol.324
4.3. DANGEROUS ACTIVITIES
The 1993 Convention on Liability for Damages Resulting from Activities Dangerous to
the Environment325 (also called the Lugano Convention) provides for a strict liability
scheme for damage caused by dangerous activates326, not limited to transboundary
harm327. It shares most of the defining features with the already explained liability
regimes, but it has some outstanding peculiarities328. As oppose to other instruments,
the Convention has not yet entered into force, due to the lack of signatories.
The Convention is aimed at protecting the environment, and even if it is focused
on liability and compensation, it also includes preventive measures329. Environment is
widely defined, as including “natural resources both abiotic and biotic […] and
between the same factors property which forms part of the cultural heritage; and the
characteristic aspect of the landscape”330.
According to the Lugano Convention, the operator exercising the control331 of
the activity shall be held liable for damages caused by it332. The Convention does not
322 See Annex B 199 Basel Protocol. 323 Article 14 1999 Basel Protocol. 324 See Article 17 and 20 1999 Basel Protocol. 325 Council of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, CETS No.: 150, 32 ILM.480. (Hereinafter 1993 Lugano Convention). 326 Damages arising from nuclear incidents excluded from scope of the Convention. See Article 4(2) 1993 Lugano Convention. 327 BOYLE (2005) pp. 15 and 16. 328 Ibid. 329 Article 1 1993 Lugano Convention. 330 Article 2(10) 1993 Lugano Convention. 331 Article 5 1993 Lugano Convention. 332 Article 2 1993 Lugano Convection.
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establish limitations to liability to certain amounts333; this approach may embrace more
accurately the polluters pay principle334. Liability shall be ensured by the operator, who
is compelled to participate in a financial security scheme, or who must provide other
financial guarantees, up to the limits established within international law (if any)335.
Exemptions to liability are established in Article 8. In addition to the standard
exemptions, such as force majeure or armed conflicts, this Convention establishes two
unusual exemptions: the polluter shall be exonerated of liability if the damage is caused
by tolerable levels of pollution under local relevant circumstances, or if it was caused by
a lawful activity taken in the interests of the person that suffers the damage. The
interpretation of these provisions is very ambiguous. Firstly, there is no concrete
threshold for tolerable levels of pollution; the polluter may find a powerful defence line
by arguing that tolerable levels of pollution caused the damage336. It is also unclear as to
what “in the interest of the person that suffers the damage” means; the effect of this
provision relies on whether a wide or narrow interpretation of “interest” is followed.
With regards to who is entitled to claim for the damages, in addition to the
victims, Article 18 of the Convention opens up a very interesting possibility,
specifically in regard to the Common Goods. It asserts that, some associations, in
accordance with its aim to protect the environment and which meet certain
requirements, can request before the court having jurisdiction337:
• The prohibition of unlawful dangerous activities that involve a serious threat to
the environment.
• A judicial order requiring the operator to take the appropriate preventive
measures before the incident occurs, in order to prevent hypothetical damages.
• A judicial order requiring the operator to take measures of reinstatement.
333 BEYERLIN & MARAUHN (2011) pp. 373. See also SANDS & GALIZZI, (2004) pp. 1240 and BERGKAMP, (2001) pp. 29. 334 BOYLE (2005) pp. 15 and 16. 335 Article 12 1993 Lugano Convention. 336 SANDS, & PEEL (2012) pp.123. 337 A very similar solution to this problem is given by European legal framework, but within an administrative liability scheme. Another similar example was discussed at the Introduction of this research, French national legislation, Article 142. 2 "Code de l'environnement" amended by art. 229 "Portant national engagement by l'environnement" 12th July 2010, also allows accredited associations to bring civil or criminal actions to the courts.
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• Under the Convention, associations are not entitled to claim for compensation of
the damages.
The Convention also provides for rules on access to information relating to
environmental matters held by public authorities or private operators338, more orientated
towards preventing the damages (ex ante measures).
5. CONCLUSIONS OF CHAPTER 4.
The specific regulation of some types of pollution, particularly nuclear and oil pollution,
finds meaning in the devastating consequences of damage. These activities produce
very specific damages, which sources are easy to identify. Other types of pollution
produce noticeable damage that can be less easy to identify or isolate from other
damages, which might be one of the reasons why there is a specific regulation for these
kinds of pollution. However this explanation should not avoid the regulation of
environmental damages from a unitary approach. The European Union combines both
kinds of liability schemes; some environmental issues are governed by specific
regulations, such as nuclear damages or oil spills, while other regulations address
environmental matters in a general manner, thereby increasing the reach of ex post
measures.
The regulations discussed have had very similar characteristics, though the 1993
Lugano Convention has some outstanding features and is by far the most ambitious. The
different instruments are compared below, and for that reason the conclusions reached
are given in different sections.
5.1. THE FINANCIAL GUARANTEES, THE LIMITATION OF LIABILITY AND THE COVERAGE OF THE CONCEPT OF DAMAGE.
The creation of funds and the obligation to take out insurance in order to ensure liability
is a great step forward, and one that increases the effectiveness of the liability schemes.
Nevertheless, its effectiveness is reduced by the limitations of responsibility, which is
also inconsistent with the polluters pay principle, as the polluter will internalize the cost
of pollution but only up to a limit. In the particular case of oil pollution of the sea,
taking out insurance is not compulsory unless a ship carries more than 2,000 tons of oil
338 Articles 13 to 16 1993 Lugano Convention.
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in bulk, though obviously a ship with less charge could also cause significant
environmental harm.
How “damage” and “environment” are defined also has a great impact on the
coverage these instruments offer. On the one hand, we have the 1993 Lugano
Convention, which has a wide definition of “damage” and “environment”, does not
establish limits to liability, and establishes certain duties to the operator or owner to
ensure liability. On the other hand, we have found, for example, that in the case of the
liability scheme for nuclear damage, where neither “environment” nor “damage” are
defined, the compensation does not include loss of income and liability is faced up to a
certain limit, even though the total economic value of the damages exceeds that amount.
At this point, we can conclude that the 1993 Lugano Convention offers more
protection to the victims of environmental damage and is more in line with the
foundations of the polluters pay principle.
5.2. CHANNELLED LIABILITY
Channelling the liability to one entity simplifies the procedure and reduces the cost of
finding the responsible entity. However, it reduces the victim’s chances of receiving a
full compensation payment339. All of the instruments analysed channel liability to the
operator or the owner, which is assumed to be exercising the control over the activity.
It is important to consider the inclusion of provisions regarding the liability of
third entities (including states), when they contribute to the damage by their fault or
negligent conduct.
5.3. COVERAGE OF ECOLOGICAL DAMAGE AND DAMAGE TO THE COMMON GOODS
The instruments described are limited to the territorial jurisdiction; they are not
applicable to pure ecological damages or those occurring beyond the limits of the state
jurisdiction. The issue of ecological damage is partly solved by the 1993 Lugano
Convention, as associations meeting some requirements could claim for preventive and
reinstatement measures or the prohibition of unlawful activities that may damage the
environment. The other schemes discussed do not address pure ecological damage; only
those entities having a genuine link with the damage will be entitled to claim.
339 FAURE (1995) pp. 28, WETTERSTEIN (2004) pp. 248 and LOUKA (2006) pp. 448.
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In the case of oil pollution of the sea, some regulations of public law may apply,
but remain focused on the consequences of that pollution within the state’s territorial
jurisdiction. We face a problem of ownership regarding the right to compensation, as it
was stated in the introduction of this research, the environment does has no ius standi,
and third entities need to claim for reparation or compensation for environmental
damage. For example, since the high seas is not owned or controlled by any concrete
entity, but their use and enjoyment is open to any state, it is not possible to identify the
entity entitled to claim for reparation of the damages caused by an oil spill in
ecosystems of high seas.
The development of international legal instruments that cover in an effective
manner the damages to the Common Goods, whether or not the damage is linked to a
state jurisdiction, is highly desirable. International civil liability schemes do not give
satisfactory solutions to the “tragedy of the commons”. As it is discussed in later
chapters, at the European level, the problem is partially solved through administrative
liability, a state can claim has a trustee of the community compensation for
environmental damage.
5.4. SPECIFIC INSTRUMENTS FOR SPEFIC KINDS OF POLLUTION
The existence of different instruments focused on different kinds of pollution could be a
problem in itself. First, if two different accidents take place at the same time or one
incident causes another incident of different nature340, then there are no rules as to how
to address this matter, as there is no general regulation.
Secondly, the scope of these instruments is rather limited; only one of the
instruments discussed takes a unitary approach, and is therefore not focused on a
particular environmental threat. Taking into account that the current nuclear powers are
not parties to the abovementioned conventions in regard to nuclear damages, it can be
said that only the scheme in regard to oil spills in the ocean offers an adequate level of
protection to the victims of those kinds of damages. Any incident out of the scope of the
regulations in force is not subject to international regulation, so the victims face legal
uncertainty, and access to justice is not granted.
340 Note that this would not apply in the case of nuclear damage, as this kind of damage “absorbs” the consequences of all non-nuclear damages.
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At the supranational level some solutions have been found, the European Union
framework includes generic conflict-law rules and rules for determining the governing
jurisdiction, applicable to all the environmental damages which are not covered by an
specific regulation, granting access to justice and providing legal certainty to the victims
of environmental harm.
5.5. LACK OF SIGNATORES
The low levels of ratification of some of these instruments might be the greatest
weakness that exacerbates all of the problems that liability schemes face. Solutions
within international private and public law seem to be unappealing to states that show
their reluctance to adopt instruments regulating liability.
A direct consequence of these low levels of ratification is a low level of
effectiveness. There is no certainty over which law is applicable, and its material
content, or which is the governing jurisdiction when environmental harm arise.
Civil liability for environmental damage in the international arena cannot
progress or face future challenges if the instruments with innovations that may solve
(partially or totally) problems of liability regarding environmental harm are not in force.
Greater levels of consensus are found at the European Union; the Member States
share sovereign powers and the European parliament, which represents all the Member
States, decides whether legislation is approved or not341. This has had as result a further
developed legislation package, providing more effective remedies to the victims of
environmental ham.
341 For further information about the decision-making procedure consult: http://europa.eu/eu-law/index_en.htm
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CHAPTER 5: INTERNATIONAL LEGAL FRAMWORK
REGARDING CRIMINAL AND ADMINISTRIVE LIBILITY
ARISING FROM ENVIRONMENTAL DAMAGE
1. INTRODUCTION As stated in the introduction of this research, environmental damage can be also tackled
from criminal law or administrative law, usually involving penalties. Administrative
and criminal penalties punish behaviours that breach the law. Usually criminal law
applies when the breach is significant or has a significant impact and, generally, the
courts decide whether a criminal sanction is to be applied. Administrative liability
usually arises from minor breaches of the law and the state’s executive bodies have
power to impose administrative sanctions.
The international framework regarding environmental crime or administrative
sanction concerning the environment is very diffuse, and there is no international
agreement tackling environmental crime or environmental administrative sanctions as
such 342 . However, as it is later discussed, examples of effective regulation of
environmental crime or environmental sanctions can be found at the supranational level;
the European Union legal framework includes administrative and criminal remedies
addressing environmental matters, by providing minimum standards that are to be
implemented by the Member States.
As the civil regulation at the international, criminal remedies at international level
are focused on very specific environmental threats 343 . Most of the criminal or
administrative liability schemes regarding environmental damage are developed at the
national level, as, in general, states have shown themselves unwilling to share sovereign
powers in connection with environmental criminal or administrative matters344.
The following sections discuss the instruments regulating areas related to the
environment in which criminal or administrative remedies may have a role at the
international level.
342 BOISTER (2012) pp. 119 and ROSE (2014) pp. 22. 343 Ibid. 344 BOISTER (2012) pp. 119.
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1.1. AN INTRODUCTION TO ENVIRONMENTAL CRIME
The concept of “environmental crime” can be understood as an act or omission that
breaches national, regional or international law and generally has a detrimental impact
on the environment and, therefore, is subject to criminal penalties and criminal
prosecution345. It is important to highlight that crime arises from an unlawful behaviour,
in contrast to civil remedies, which are intended to repair or compensate an unfair
result.
Following the approach of the UN Convention against Transnational Organized
Crime346, environmental crime is considered transnational if it meets one of the
requirements below 347:
a) The offence is committed in two or more states.
b) The offence is committed in one state, but is planned, prepared, directed or
controlled from a third state.
c) The offence is committed in one state, but involves organized criminal groups
acting in two or more states.
d) The offence is committed in one state, but it has substantial effects in a third
state.
Transnational environmental crime involves a range of activities, such as illegal
trade of environmental goods, illegal exploitation of natural resources or illegal
movement and dumping of toxic waste or chemicals348. These acts entail economic and
political consequences and serious environmental degradation; for example, wildlife
trade of species is one of the leading causes of species endangerment349.
2. WILDLIFE AND PLANTS ILLEGAL TRADE
2.1. CITES
The main regulation regarding the illegal trade of wildlife is the Convention on
International Trade in Endangered Species of Wild Fauna and Flora350. The main
345 MULLIER (2010) pp. 95, WHITE & HECKENBERG (2014) pp. 300 and HECKENBERG (2009) pp. 9. 346 Article 3(2) 2000 United Nation Convention against Transnational Organized Crime, 2225 UNTS 209. 347 ROSE (2014) pp. 7, 15 and 16, BOISTER (2012) pp. 4 and ELLIOT (2012) pp. 89. 348 ROSE (2014) pp. 7, BOISTER (2012) pp. 4 and ELLIOT (2012) pp. 89. 349 ROSE (2014) pp. 18.
350 1973 International Union for Conservation of Nature Convention on International Trade of Endangered Species of Wild Fauna and Flora, 993 UNTS 243. (Hereafter CITES). Note that CITES
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purpose of CITES is the protection of endangered species 351, which are listed in several
appendices, classifying each species according to its degree of risk extinction. In
White’s and Heckenberg’s352 view, CITES’ underlying aim of the Convention is
regulating the trade of endangered species, not their protection, as this does not prevent
them from being traded. As such, it establishes procedural obligations to make its trade
lawful. According to Articles III to V, trading with the listed species of animals and
plants is prohibited unless several conditions are fulfilled. Traffic of illegal timber
would fall under the scope of the CITES Convention if the plants species were listed in
the Appendices. There is no international agreement addressing deforestation or the
trafficking of timber, although it has a serious impact on the environment353.
Article VIII establishes the that “ the Parties shall take appropriate measures to
enforce the provisions of the present Convention and to prohibit trade in specimens in
violation thereof. These shall include measures to penalize trade in, or possession of,
such specimens, or both; […]”. Therefore, CITES does not establish criminal or
administrative liability itself; therefore, a state’s party may implement the penalties
provided through criminal law or administrative law354. However, the implementation
and enforcement of CITES has been poor, and as a result it has not been effective
enough to prevent illegal trade355.
2.2. UNTOC
Another instrument regulating the traffic of wildlife is the United Nations Convention
against Transnational Organized Crime356, which states that the Conference “will
constitute an effective tool and the necessary legal framework for international
cooperation in combating, inter alia, such […] illicit trafficking in endangered species
content is implemented in the EU through several regulations and decisions, for further information check: http://ec.europa.eu/environment/cites/legislation_en.htm 351 Article II CITES. 352 WHITE & HECKENBERG (2014) pp. 131. See also ELLIOT (2012) pp. 96. 353 ROSE (2014) pp. 23 and BOISTER (2012) pp. 120 and 121. 354 See for example the regulation US Endangered Species Act of 1973 ESA; 16 U.S.C. § 1531 et seq. See ROSE (2014) pp. 22, BOISTER (2012) pp. 120 and ELLIOT (2012) pp. 96. 355 See Fifteenth meeting of the Conference of the Parties Doha (Qatar), 13-25 March 2010 Interpretation and implementation of the Convention Compliance and enforcement, Cop 15 Doc. 25. Available online at: https://cites.org/sites/default/files/eng/cop/15/doc/E15-25.pdf 356 2000 United Nation Convention against Transnational Organized Crime, 2225 UNTS 209. (Hereinafter UNTOC).
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of wild flora and fauna”. However, the Convention will only cover environmental
damage if at least one of the requirements below is met:
• The offence is considered by the national law as a serious crime, which
according to the convention are crimes punished by a maximum deprivation of
liberty of, at least, four years357.
• The offence is related to organized crime as described in Article 5 UNTOC358.
• The offence is related to corruption as described in Article 6 UNTOC359.
• The offence is connected to money laundering as described in Article 8
UNTOC360.
The scope of the convention is very limited and it does not provide guidance to
tackle environmental damage when these requirements are not fulfilled361. This entails
that criminal prosecution is not granted in most of the situations; leading to states
parties’ discretion. States parties would decide how they regulate the issues not covered
by UNTOC, and as such, they may establish criminal penalties, administrative sanctions
or none of them.
3. ILLEGAL WASTE
3.1. HAZARDOUS WASTE
The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal362 provides, in its Article 4 (3), that the states party to the
Convention must consider that “illegal hazardous wastes or other wastes are criminal”.
According to the 1989 Basel Convention, Article 4(4), States Party should take the
adequate measures to implement and enforce the provision to punish the conduct
against the provisions of the Convention363. However, it does not provide any guideline
357 See Article 2 (b) in conjunction with Article 3 (1) (b) UNTOC. 358 See Article 5 in conjunction with Article 3 (1) (a) UNTOC. 359 Ibid. 360 Ibid. 361 ROSE (2014) pp. 23 and ELLIOT (2012) pp. 95. 362 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1673 UNTS 126, 28 ILM 657, amended by 1999 Protocol on Liability and Compensation for Damages Resulting from Transboundary Movement of Hazardous Wastes and their Disposal UN Doc. UNEP/CHW.1/WG/1/9/2. (Hereinafter the 1989 Basel Convention). 363 ROSE (2014) pp. 23 and BOISTER (2012) pp. 121.
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to state parties regarding the implementation of the provision, or make further reference
to environmental crime in relation to hazardous waste364.
In 1988 a Resolution of the Organization of African Unity365 declared that the
dumping of nuclear and industrial waste in Africa was a crime against Africa and the
African people. Therefore, it condemned all transnational corporations and enterprises
involved in the introduction of waste in Africa, demanding that they should clean up the
polluted areas. However, the content of this resolution is not binding; and the 1989
Basel Convention did not deal expressly with the problem of dumping waste in
Africa366.
3.2. SHIP WASTE
The International Convention for the Prevention of Pollution from Ships367 covers
prevention of pollution in the marine environment by ships. Article 4(2) establish that
States Party to the convention must prohibit and sanction any violation of the
convention and, pursuant Article 4(4), these sanctions must be “adequate in severity” to
discourage violations. However, the Convention does not make reference to criminal
law or administrative law. States Parties to the Convention have discretion to implement
the provision in the way they find more adequate.
4. ILLEGAL, UNREPORTED AND UNREGULATED FISHING Most of the agreements regulating fisheries are developed at the regional level368. There
are no minimal agreements in regards to the management of the fish stocks of the high
seas369, and therefore unsustainable fishing might not be illegal even though it causes a
big damage to the environment. The most remarkable regulation is the 1995 UN Fish
364 ELLIOT (2012) pp. 95. 365 Organisation of African Unity Council Of Ministers Resolution on Dumping of Nuclear and Industrial Waste in Africa, 23rd May l988, CM/ Res. 1153(XLVIII) 28 ILM567. 366 COX (2010) pp. 272. 367 1973 International Convention for the Prevention of Pollution from Ships amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 12 ILM 1319, 1340 UNTS 184. 368 BOISTER (2012) pp. 119. 369 See a series of papers on policy options, prepared for the third meeting of the Global Ocean Commission, November 2013, Policy Options Paper No. 9: Improving accountability and performance in international fisheries management, pp. 1. Available online at: http://www.globaloceancommission.org/wp-content/uploads/POP-9_Reform-of-Fisheries-Management_FINAL-1.pdf
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Stock Agreement370, which provides that the States Party must regulate in order to
prohibit fishing on the high sea by vessels that are not authorised or licensed to do so371.
The Agreement does not make any reference to criminal penalties, and therefore each
state may regulate fishing on the high seas on different grounds372.
5. CONCLUSIONS OF CHAPTER 5 Criminal and administrative liability arising from environmental damage at the
international level suffers from a lack of regulation, none of the instruments describe
provides substantive regulation tackling environmental damage. Few issues are covered
by the regulations discussed, which do not provide minimal standards to be implanted
by the international community. States discretion to determine which actions are subject
to criminal or administrative liability is almost absolute. There is a general lack of
cooperation among states towards developing criminal and administrative liability
schemes tackling environmental harm. There is no consensus on minimum standards to
be applied in such cases. Every state has discretion to settle the coverage that criminal
and administrative liabilities offer. These differences translate in poor –almost non
existent- protection of the Common Goods and huge differences on the protection of
environmental goods, which directly implies that the polluters would find jurisdictions
with lax regulations or lax enforcement of such regulations, taking advantage of the lack
of minimum standards at the international level.
The European Union example, although is not perfect, it shows that civil,
criminal and administrative liability can work together, strengthening the reach of ex
post measures in cases of environmental harm. This progress is achieved by providing
minimum standards, which are to be transposed by the Member States in their domestic
jurisdictions, and by setting out substantive and conflict rules addressing environmental
matters.
370 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10th December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542, 2167 UNTS 88. (Hereinafter UN Fish Stock Agreement). 371 Article 18 (3)(b)(ii) UN Fish Stock Agreement. See also BOISTER (2012) pp. 119. 372 BOISTER (2012) pp. 119 and 120.
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CHAPTER 6: EUROPEAN ADQUIS REGARDING
LIABILITY FOR ENVIRONMENTAL DAMAGE
Since the 70’s, European Union environmental law developed greatly373; instruments
regulating environmental matters are large and have a significant impact on the Member
States environmental policies374. The approach of the European Union to environmental
damage is worthy of analysis, as it tackles environmental damage from heterogeneous
perspectives, including administrative, civil and criminal remedies. Member States
cooperate and share sovereign powers, reaching minimum agreements to ensure the
effective protection of the environment. Furthermore, it can provide an inspiring
example of how the environment can be effectively protected at the international level.
Article 191(2) of the Treaty on the Functioning of the European Union 375 settles
that the “Union policy on the environment shall aim at a high level of protection (…). It
shall be based on the precautionary principle and on the principles that preventive
action should be taken, that environmental damage should as a priority be rectified at
the source and that the polluter should pay”376. These principles are developed through
several instruments. The polluter pay principle is developed though instruments with ex
ante and ex post approaches, including liability within the ex post set. In this line, the
White paper on Environmental Liability377 explores the best ways of implementing the
polluters pay principle: how should tort/civil liability schemes be shaped to achieve the
environmental goals of the European Union.
The White paper on Environmental Liability determines that environmental
damage can be remedied through civil liability if three key elements meet:
1. One or more identifiable polluters.
2. Concrete and quantifiable damage.
373 JANS & HANS (2012) pp. 3 and HORSPOLL & HUMPHREYS (2012) pp. 483 and 484. 374 HORSPOLL & HUMPHREYS (2012) pp. 483 and 484. 375 Consolidated version of the Treaty on the Functioning of the European Union of 26th October 2012, OJ C 326, p. 47. (Hereinafter TFEU). 376 As it was stated previous chapters, one of the main regulations in regard to ex ante environmental protection in the EU is the Directive 85/337/EEC of the Council of 27th June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, p. 40, as amended by the Directive 97/11/EC of the Council of 3rd March 1997, OJ 1997 L 73, p.5 and as amended by the Directive 2009/31/EC of the European Parliament and of the Council of 23rd April 2009, OJ L 140 p. 114. 377 European Commission, White Paper on Environmental Liability. COM(2000) 66 final, 9th February 2000.
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3. Causal link between the damage and the identified polluter.
In the White paper, the Commission also made an important statement by setting
out that liability is not a suitable tool “for dealing with pollution of a widespread,
diffuse character, where it is impossible to link the negative environmental effects with
the activities of certain individual actors”378. In the Commission’s view, cases such as
climate change cannot be solved or repaired through liability schemes.
This research focuses on the instruments aiming at the reparation of
environmental damage and those developing the polluters pay principle once the
damage has already occurred.
1. ADMINISTRATIVE LAW - DIRECTIVE ON ENVIRONMENTAL LIABILITY
1.1. INTRODUCTION Some instruments within the EU legal framework harmonize the substantive national
law addressing environmental damage. The Directive 2004/35/EC of the European
Parliament and of the Council of 21 April 2004, on environmental liability with regard
to the prevention and remedying of environmental damage379, has a prominent role in
this area380, while its impact regarding civil liability is limited. The ELD makes the
Member States responsible for taking preventive measures in cases of eminent threat
and, after the damage is not avoided, for restoring or repairing environmental harm381.
The Directive’s purpose is the implementation of the polluters pay principle382; and at
the time, the Directive appears as a suitable instrument for achieving the environmental
protection aimed by the EU as stated in Article 191(2) TFUE383.
1.2. SCOPE OF THE ELD
The ELD’s scope is limited in several ways. In this research, four main ways are
highlighted.
378 Ibid, pp. 13. 379 Directive 2004/35/CE of the European Parliament and of the Council 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143. (Hereinafter ELD). 380 LEE (2009) pp. 266. 381 BERGKAMP & GOLDSMITH (2013) pp. 1 and 2. 382 Ibid. The ELD makes direct reference to the polluters principle three times, in Recitals 2 and 18, and in Article 1. Article 8(1) ELD also embrace the main content of the principle by stating the following: “the operator shall bear the costs for the preventive and remedial actions taken pursuant to this Directive”. 383 BERGKAMP & GOLDSMITH (2013) pp. 1 and 2 and JANS & HANS (2012) pp. 383.
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1.2.1. DIFFUSE POLLUTION
It is important to point out that, following a similar approach to liability as the White
Paper384, the scope of the ELD Directive is limited to cases where one or more polluters
can be identified, the damage is quantifiable and there is a causal link between the
damage and the identified polluter. Therefore, the Directive does not apply to diffuse
pollution385.
1.2.2. PERSONAL SCOPE
The personal scope of the ELD is limited to operators controlling386 the “occupational
activities”387 causing environmental damage388. Following a literal interpretation of
Article 2(7) ELD, in regards to “occupational activities”, the scope is reduced to
activities “carried out in the course of an economic activity, a business or an
undertaking”, and therefore, some activities that may have an impact on the
environment are to be excluded from ELD’s scope if such requirement is not
satisfied389.
1.2.3. MATERIAL SCOPE
The ELD is intended to address cases of “environmental damage” as defined by Article
2.1, which includes damage to “species and natural habitats”, “water” and “land”. The
Directive is not intended to cover all kinds of natural resources and only focuses on the
aforementioned elements390. Under the Directive, damages to water, species and natural
habitats need to be “significant” to be covered by the Directive’s scope, while damage
to land, in order to fall under the ELD’s scope, shall involve an adverse effect on human
health391.
A key element of ELD’s scope is the exclusion of traditional damages; the
Directive “does not apply to cases of personal injury, damage to property or economic
384 European Commission, White Paper on Environmental Liability. COM(2000) 66 final (9 February 2000). 385 Recital 13 ELD. 386 Accordingly to Article 2(6) operators are those “who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated”. 387 “Occupational activities” are listed in Annex III ELD. 388 See Article 3(1) in conjunction with Article 2(6) and Article 2(7) ELD. 389 JANS & HANS (2012) pp. 384. 390 Ibid pp. 384 and 385. See also WOLF & STANLEY (2013) pp. 522. 391 Ibid. See also BERGKAMP & GOLDSMITH (2013) pp. 3.
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loss” 392 . Thus the ELD is not intended to ensure the claimant or victims the
compensation or reparation of environmental damage, but to protect environmental
goods that are not linked with property rights393. Moreover, the Directive does not apply
to damages with special liability schemes such as oil spills or nuclear incidents394.
1.2.4. TEMPORAL SCOPE
The Directive shall not apply to damages caused before the implementation date, or to
events or actives causing the damage that were finished before the implementation
date395, that is 30th April 2007396. Thus, the ELD does not provide for retrospective
liability397.
1.3. THE ADMINISTRATIVE LIABILITY SCHEME SETTLED BY THE ELD
A significant portion of ELD is focused on remediation and prevention. Under the ELD
the operator has two main duties, to prevent398 and restore399 environmental damage.
For the purpose of this research, the remediation scheme is described, while preventive
obligations may be mentioned on a more residual basis.
The ELD provides a two-tier liability scheme; certain activities are subject to a
strict liability system while others are subject to a fault-based liability system400.
1.3.1. STRICT LIABILITY
Damage caused by the activities listed in Annex III or imminent threats401 of these kinds
of damages are subject to a strict liability scheme402. Annex III includes 12 activities
392 Recital 14 ELD. 393 SJANS & HANS (2012) pp. 383-390, HINTEREGGER & OTHERS (2008) pp.340, DE SADELEER (2007) pp. 68 to 75, LEE (2013) pp. 266. 394 JANS & HANS (2012) pp. 385. See also Article 4(2) and 4(4) ELD. 395 Article 17 ELD. 396 Article 19(1) ELD. 397 JANS & HANS (2012) pp. 385 and LEE (2013) pp. 267. 398 Article 5 ELD. 399 Article 6 ELD. 400 BERGKAMP & GOLDSMITH (2013) pp. 1 to 11, 28 and 51, WOLF & STANLEY (2013) pp. 343 to 345 and JANS & HANS (2012) pp. 386. 401 Imminent threat is defined in Article 2(9) as “a sufficient likelihood that environmental damage will occur in the near future”. 402 BERGKAMP & GOLDSMITH (2013) pp. 1 to 11, 28 and 51 and WOLF & STANLEY (2013) pp. 343 to 345. See also the Case C-378/08 ERG and others ECR I-119 (2010) (ERG I) para. 63, which states: “In the case of the occupational activities falling within Annex III to Directive 2004/35, environmental liability on the part of operators active in those areas is strict liability”.
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that have already been harmonized by EU Directives403 and that are considered to be
dangerous to the environment404.
Under the ELD, the competent authority is not required to prove the existence of
intention, fault or negligence, but is required to carry out prior investigation and give
evidence of the existence of a causal link between the occupational activity and the
damage.405
1.3.2. FAULT-BASED LIABILITY
Environmental damage caused or imminent threats to protected species and natural
habitats by other occupational activities not listed in Annex III ELD are subject to a
fault-based liability system406, implying that the operator is to be liable when the
damage or imminent threat is caused due to his fault or negligence407. Negligence and
fault are not defined by the ELD and therefore the Member States have the discretion to
choose different approaches to negligence and fault.
Case law indicates that Member States may adopt more stringent measures by
extending the scope of the fault-based system, including water damage and land
damage, or even by providing strict liability for damages arising for activities other than
those established in Annex III, with regards to damages to protected species and natural
habitats, land damage and water damage.408
403 Annex III lists the following activities: 1.The operation of installations subject to permit concerning integrated pollution prevention and control, 2.Waste management operations, including the collection, transport, recovery and disposal of waste and hazardous waste, including the supervision of such operations and after-care of disposal sites, subject to permit or registration, 3.All discharges into the inland surface water, which require prior authorization, 4.All discharges of substances into groundwater which require prior authorisation, 5.The discharge or injection of pollutants into surface water or groundwater which require a permit, authorisation or registration, 6.Water abstraction and impoundment of water subject to prior authorisation, 7.Manufacture, use, storage, processing, filling, release into the environment and onsite transport of dangerous substances, dangerous preparations, plant protection products and biocidal products, 8.Transport by road, rail, inland waterways, sea or air of dangerous goods or polluting goods, 9.The operation of installations subject to authorisation, 10.Any contained use, including transport, involving genetically modified micro-organisms, 11.Any deliberate release into the environment, transport and placing on the market of genetically modified organisms and 12. Transboundary shipment of waste within, into or out of the European Union, requiring an authorisation or prohibited by EU Law. 404 See BERGKAMP & GOLDSMITH (2013) pp. 1 to 11, 28 and 51, WOLF & STANLEY (2013) pp. 343 to 345 and JANS & HANS (2012) pp. 386. 405 Case C-378/08 ERG and others ECR I-119 (2010) (ERG I) para. 57 and 64. 406 BERGKAMP & GOLDSMITH (2013) pp. 5 and 51 and WOLF & STANLEY (2013) pp. 345. 407 Article 3(b) ELD. 408 Case C-378/08 ERG and others ECR I-119 (2010) (ERG I) para. 68 and 69.
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1.3.3. FEATURES OF THE LIABILITY SCHEME SET BY THE ELD
1.3.3.1. Obligations arising from the damages
Once the damage is caused, two main obligations arise: the operator should take
remedial action409 and must also bear the cost of these actions410. Annex II ELD sets out
the measures that may be suitable in each case in order to repair the damages; damages
to water, species and natural habitats should be restored to their baseline condition411,
while land damage should be restored to the point that it no longer poses a significant
risk to human health412.
1.3.3.2. Exceptions
Exceptions to liability are detailed in Article 4 ELD, which provides that liability shall
not arise if the damage is caused due to an armed conflict, hostilities, civil war,
insurrection or if the damage caused by a natural phenomenon of exceptional character
that could not be foreseen (acts of god/force majeure).413
The operator would not be required to bear the cost of the remedial and
preventive measures in two situations: if the damage was caused by a third party or if
the damage arose as a result of the compliance with a compulsory order of the public
authority414.415
Pursuant Article 8(4) ELD, the Member State could allow the operator not to
face the cost of remedial action for the damage if two requirements are met:
1.The damage was not caused by his fault or negligent conduct.
2.The damage was caused either by an authorised activity carried out in
accordance with national laws and applicable regulations or by an activity which was
not considered likely to cause environmental damage, following a precautionary
approach.416
409 Article 6 ELD. 410 Article 8 ELD. 411 See Annex II (1)(1)(1) ELD. 412 See Annex II (2) ELD. 413 JANS & HANS (2012) pp. 388 and BERGKAMP & GOLDSMITH (2013) pp. 81 et seq. 414 Article 8 (3) ELD. 415 JANS & HANS (2012) pp. 388 and 389 and BERGKAMP & GOLDSMITH (2013) pp. 81 et seq. 416 Ibid. pp. 389.
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1.3.3.3. Limitation of liability and financial guarantees
The Directive does not provide for any limits to liability, although it recognises the
operator’s right to limit its liability in accordance with domestic law and international
treaties417.
Financial guarantees, such as insurance, are not compulsory under the ELD,
however it calls upon Member States to adopt measures to ensure liability and promote
the development of financial mechanisms to avoid insolvency in cases of environmental
damage418.
1.3.3.4. Implementing the ELD
Public authorities are responsible for implementing the Directive. As stated in Article
11 ELD, Member States must designate the competent authority, which is the
responsible entity for fulfilling the obligations set in the Directive419. Moreover, the
designated authority is entitled to require the remedial measures to the operators420 and
take remedial measures itself as a last resort421. According to Article 8(2), the competent
authority must also recover the costs of the remedial actions422.
1.4. CONCLUSION REGARDING THE ELD The polluters pay principle and the preventive principle are the basis from which
the ELD develops. Ex ante and ex post measures work together in order to avoid
and repair environmental damage. Under the Directive, the polluter has several
duties; it must prevent and remedy environmental damage and bear the cost of the
remedial and preventive actions.
The ELD has a narrow scope, although it provides Member States
considerable discretion, that might implement more stringent measures than those
provided by the ELD; the Directive sets out the minimum standards of
environmental protection that might be extended by Member States’ national law.
The Directive is intended to protect the environment from damage over
certain natural resources, when this damage is not related to personal injury,
417 Article 4(3). See also BERGKAMP & GOLDSMITH (2013) pp. 90. 418 Article 14 ELD. See also BERGKAMP & GOLDSMITH (2013) pp. 119 et set. 419 Article 6(2)(b) and 11(1) ELD. See also JANS & HANS (2012) pp. 387. 420 Article 11(3) ELD. 421 Article 6(3) ELD. See also JANS & HANS (2012) pp. 387. 422 JANS & HANS (2012) pp. 388.
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property or economic loss. The core concept revolves around the idea that
environmental damage should be prevented or remedied, aside from any private
interest; the environment has intrinsic value in its own right 423 . This scope
limitation is one of its strengths, as the ELD is meant to deal with pure ecological
damage within the Member States’ territorial jurisdiction. The ELD partially solves
lack of ius standi of the environment, the competent authority is the entity entitled
to require the polluter to take appropriate remedial measures and bear their cost.
Thus, under the Directive certain cases where there are no identifiable victims are
covered, which represents a great step forward in regards to the protection of the
Commons. However, the limitation to certain kinds of natural resources might be
one of its weaknesses, as it does not cover natural resources as a whole and does
not provide protection to the values attached to the environment.
ELD moves away from civil liability and leans towards administrative
liability, which is, in most likelihood, its most remarkable feature. Under the
Directive, tortious relations are established between private operators (defendant)
and public authorities (claimant). Consideration must be given to the fact that
administrative liability does not prevent civil liability, if a private interest suffers
any damage, domestic law may establish civil liability can arise in parallel to
administrative liability.
To conclude, despite its weaknesses, the ELD is an important step forward
in leaving behind anthropocentrism and adopting an “ecocentric/biocentric”
viewpoint. Administrative liability and administrative mechanisms can be an
effective way to address environmental damage, providing valuable solutions that
complement the traditional liability systems.
2. CIVIL LIABILITY – CONFLICT RULES As it has been shown in previous chapters, environmental damage has been tackled by
civil liability at the international level, which has focused on compensating and
repairing environmental damage when it is linked to private interests. Civil and tort
liability also play a role in the EU legal framework. Civil liability schemes are tackled
by conflict rules, which do not provide the substantive law regulating the matter, but
423 For further information about the intrinsic value of environment see WHITE & HECKENBERG (2014) pp. 96.
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refer to certain national law or jurisdiction424. The main purpose of these regulations is
to provide legal certainty and prevent forum shopping. The main legal framework is
found in Regulation 864/2007 of the European Parliament and of the Council of 11 July
2007 on the law applicable to non-contractual obligations425 and the Regulation Nº
1215/2012 12 of December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters426. The graphics427 in Annex I of this
research summarize and clarify the content of these two regulations, which are
discussed the sections that follow.
2.2. ROME II - DETERMINING THE APLICABLE LAW IN CASES OF
ENVIRONMENTAL DAMAGE
2.2.1. INTRODUCTION AND SCOPE OF ROME II
Rome II regulation unifies the applicable law to non-contractual obligations in civil and
commercial matter428, including non-contractual obligations arising from environmental
damage among the Members States of the EU and EEA429, except Denmark430. The
Regulation establishes conflict rules determining the applicable law to non-contractual
obligations, including those arising from environmental damage. Rules set out by Rome
II are applicable if there is no other international agreement governing the non-
contractual obligation431.
The Regulation is applicable from 11th January 2009, and therefore, the event
that gives rise to the damage must have occurred on that date or later in order to be
covered by the scope of the Regulation, which cannot be applied retrospectively432.
424 FACH GÓMEZ (2004) pp. 291-318. 425 Regulation (EC) Nº 864/2007 of European Parliament and Council of 11th July 2007 on the law applicable to non-contractual obligations, OJ L199/40. (Hereinafter Rome II). 426 Regulation (EC) Nº 1215/2012 of the European Parliament and Council of 12th of December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). OJ L 351. (Hereinafter Brussels I recast). 427 Graphics made by the author of this research. 428 Some matters are excluded from the scope of Rome II, see article 1.2 of Rome II, and see particularly the exclusion of nuclear damages, which falls under the scope of this research. 429 AHERN & BINCHY (2009) pp. 277 and FERRARI & LEIBLE (2009) pp. 6 and 7. 430 Article 1(4) Rome II. 431 Article 28 Rome II. See also OTERO GARCÍA-CASTRILLÓN (2012) pp. 565. 432 See Article 31 in conjunction with Article 32 Rome II. See also the ECJ Case- C-412/10 Deo Antoine Homawoo v GMF Assurances SA. ECR I-0000, (2011) where the Court states that “Articles 31 and 32 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’), read in conjunction with Article 297 TFEU, must
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According to Article 3, Rome II has erga omnes character and, therefore, it is
applicable to third countries that are not Member States of the EU or the EEA. This
entails that a citizen in Iceland (or any other country that adopts the regulation) will
apply Rome II Regulation to matters arising with a citizen in France or Ecuador, but it
would not be applicable between citizens of Ecuador and Nigeria, as neither of the two
countries adopted the Regulation433.
2.2.2. CONCEPTS AND MEANING IN ROME II - DAMAGE AND THE EVENT THAT GIVES THE RISE TO THE DAMAGE
The interpretation of several concepts within Rome II Regulation narrows down the
number of situations where the Regulation is applicable; without a brief explanation of
these concepts, a complete understanding of the Regulation will not be achieved.
In order to ensure a homogeneous interpretation of the terms, the guidelines
provided by the Vienna Convention on the Law of Treaties of 23 April 1969434 are
followed. The general rule is contained in Article 31, which calls upon the literal
interpretation of the treaties and interpretation in good faith. The Following articles set
out complementary interpretation rules, which take into account the context, object and
purpose of the treaty and the parties’ intention, among other issues.
2.2.2.1. Damage and environment
Recital 24 of the preamble of Rome II defines “environmental damage”, stating that the
concept should be understood as “adverse change in a natural resource, such as water,
land or air, impairment of a function performed by that resource for the benefit of
another natural resource or the public, or impairment of the variability among living
organisms”. Thus, the Regulation provides a narrow definition of the term
“environment” as it does not include values related to the environment per se (such as
the aesthetic value of environment). However, Rome II is meant to encompass not only
be interpreted as requiring a national court to apply the Regulation only to events giving rise to damage occurring after 11 January 2009 and that the date on which the proceedings seeking compensation for damage were brought or the date on which the applicable law was determined by the court seised have no bearing on determining the scope ratione temporis of the Regulation.”. See also KUNDA &
GONÇALVES DE MELO MARINHO (2010). 433 Pursuant Article 3, the Regulation has universal character, and it should be notice that for that reason the applicable law could be a third states’ law, even though it was not a Member State of the EU/EEA. 434 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679.
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damages to the legitimate rights of individuals, but also to the controversial pure
ecological damage435.
According to Article 2 of the Regulation, the concept of “damage” shall cover
“any consequence arising out of tort/delict, unjust enrichment, negotiorum
gestio or culpa in contrahendo”, and Rome II is also applied “to non-contractual
obligations that are likely to arise." In the case of environmental damage, it essentially
refers to “any consequence arising out of tort/delict”. It has been considered that
Regulation covers claims where the damage is still hypothetical436 and preventive
measures might be needed437.
2.2.2.2. The event that gives rise to the damage
The event that gives rise to the damage refers to the action (or omission) that causes the
detrimental effect or the adverse change and “shall include events giving rise to damage
that are likely to occur"438. Determining the place where the event that gives rise to the
damage occurs is essential in determining the applicable law under Rome II439.
Although it is not stated in the Regulation, as it will be addressed by the
applicable law and the court having jurisdiction, the event giving rise to the damage
must always meet some basic requirements: to be legally significant440 and also likely to
create a legal relationship between legal entities (causal link), especially within civil and
tort law441.
In general, it can be concluded that in order to consider a fact legally significant,
it must meet one requirement: the event that gives rise to the damage must be linked to a
435 MICHINEL ÁLVAREZ (2012) pp. 106, OTERO GARCÍA-CASTRILLÓN (2012) pp. 566 and HUBER &
OTHERS (2011) pp. 212. See also the Explanatory Memorandum made by the Commission of the European Communities, which reads as follows “The existence and kinds of damage for which compensation may be due: this is to determine the damage for which compensation may be due, such as personal injury, damage to property, moral damage and environmental damage, and financial loss or loss of an opportunity”. It establishes a clear separation between personal and property damage and environmental damage. Available online at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0427:FIN:EN:PDF 436 See Article 2.2 Rome II in conjunction with the statement in Recital 24 Rome II 437 MICHINEL ÁLVAREZ (2012) pp. 109. See also STONE (2011) pp 403. 438 Article 2.2 (a) Rome II. 439 HUBER & OTHERS (2011) pp. 212. 440 HINTEREGGER & OTHERS (2008) pp. 161 et seq, and pp. 588 et seq, where is stated that “The defence of force majeure, however, is part of the general rules of tort law. In the opinion of the reporter, courts will, therefore, be inclined to deny liability in case of force majeure.” 441 HINTEREGGER & OTHERS (2008) pp. 347 et seq.
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human act. In this sense, the authors Diaz-Picazo and Gullón442 stated that “the origin of
the whole phenomenon of non-contractual liability is a behaviour, a human act that in
some way can be considered as a cause of injury”443; and therefore, natural facts or the
so-called "acts of God" cannot lead to the creation of a legal relationship within civil or
tort liability, The event that gives rise to the damage must be attributable to a human
being or another entity with legal personality 444.
The event that gives rise to the damage, in addition to a human act, has to be
considered from a legal point of view, as the event that has caused the damage. That is,
there must be a causal link between the damage and the relevant event. The causal link
has always been considered essential in liability relationships. As it was stated in the
introduction of this research, as there is not an established or generally accepted theory
of causation, national laws and courts may embrace different theories 445.
2.2.3. THE APPLICABLE LAW
2.2.3.1. The general rule, lex loci damni.
The Regulation expressly provides for the law applicable in cases of environmental
damage, establishing in Article 7 the application of the general rule contained in Article
4.1446, which provides that the law applicable to non-contractual obligations is the law
of the state in which the damage occurs, i.e. where this is directly materialized,
regardless of where the damage was generated. Some authors claim that, given the
regulatory framework of the European Union, the provision in Article 4.1 in
conjunction with Article 7 with regards to environmental offences, when the damage
occurs in several states, the incident that causes the damage will be subject to several
applicable laws447.
It is generally accepted that as Article 7 refers expressly to Article 4.1, the rules
contained in Articles 4.2 and 4.3 are not applicable to cases of environmental
442 DÍEZ- PICAZO & GULLÓN BALLESTEROS, ANTONIO (1997) pp. 530. 443 Translation from Spanish made by the author of this study. 444 HINTEREGGER & OTHERS (2008) pp. 161 et seq. and pp. 588 et seq. See also Moore (2010) pp. 14 and 15. 445 HINTEREGGER & OTHERS (2008) pp. 347 et seq. See also HART & HONORÉ (1985). 446 Article 7 Rome II, that establishes the following: “The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1) […].” 447 AHERN, BINCHY & OTHERS (2009) pp. 219 to 221, STONE (2011) pp. 384 to 388 and HUBER (2011) pp. 204. This idea will be further developed during this chapter.
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damage448. According to 4.2 of the Regulation, the rule contained in Article 4.1 would
not be applied when the person claimed to be liable and the injured have residence in
the same state at the time that the damage occurs; in this case, the law of the state of
residence shall apply. The second exception449 is contained in Article 4.3, which is a last
resort rule, according to which, if under some circumstances it appears that the case is
manifestly more closely connected with a third state, law of this third state shall prevail
over those set out by Article 4, paragraphs 1 and 2. Thus, particular priority is given to
the applicable law with a closer connection to the conflict, and it does not seek to
protect the states’ interest, nor favour the more protectionist law.450
2.2.3.2. Victim’s election of the applicable law
Article 7 offers a second possibility, according to which the person seeking
compensation may choose to base his claim on the law of the country in which the event
gives rise to the damage. This rule is known as the “ubiquity principle”451 and it entails
that the claimant can choose either the law of the place where the damage occurred or
the law of the place where the event that gave rise to the damage took place 452. It
depends on the willingness of the person alleging the damage as to whether the
applicable law will be the one of the state in which the damage materializes, or the law
of the state in which the harmful conduct occurs. Article 7 aims to prevent the
application of the less stringent law in cases of transboundary pollution; it allows the
victim to choose the most favourable option in the particular case. Thus, the legislator
guarantees favourable treatment to the party claiming environmental damages, faithfully
embracing the polluters pay principle, the preventive principle and cooperating towards
the achievement of a high level of environmental protection within the EU453.
448 HUBER (2011) pp. 214, STONE (2011) pp. 403 and AHERN, BINCHY & OTHERS (2009) pp. 226. 449 Some authors consider that even though Article 4.3 not is applicable to environmental damage, the rule contained in it may apply if some circumstances meet, this possibility will be analyse later in this chapter. 450 See VAN CALSTER (2013) pp. 165 and 166. 451 This principle has been followed previously by the ECJ in regard of the governing jurisdiction in environmental matters, see for example the Case C-21/76 Handelskwekerij G. J. Bier B.V. v Mines de Potasse d'Alsace S.A. ECR 1735, (1976) where the Court states that “the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.” 452 See HUBER (2011) pp. 204. 453 See in conjunction with Recital 25 Rome II, which reads as follows “Regarding environmental damage, Article 174 of the Treaty, which provides that there should be a high level of protection based on
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An example can easily show the practical effects the ubiquity principle: a
company decided to settle in country A, with high environmental standards, but near the
border of country B, with far more lax standards in this regard. If the activities of this
company were to harm an entity in B, either directly or as a result of a damage in
country A, the person claiming compensation for the damages could choose to base his
claim on country A’s national law, whereas the provision set out by Article 4.1 would
determine that the applicable law is country B’s national law.
2.2.3.3. Article 14- Possibility of agreement regarding the applicable law
An optio legis mechanism is introduced by Article 14454 of Rome II, which offers a
third alternative, by which the parties are free to agree the applicable law to which they
would submit their claims arising from non-contractual obligations. The agreement can
be made before or after the damage occurs; the last possibility only applies if the parties
have a previous trade deal. This possibility has been widely criticized455; in the view of
many authors, the possibility of choosing the applicable law should be restricted or
further regulated. These kinds of agreements have been expressly prohibited for some
subjects regulated in Rome II 456, since this possibility allows companies to reach
agreements for applying the law in the most convenient way for them, putting pressure
on the claimant457.
2.2.3.4 Situations not explicitly dealt with in Rome II
A) Damages with no connection with the state jurisdiction
the precautionary principle and the principle that preventive action should be taken, the principle of priority for corrective action at source and the principle that the polluter pays, fully justifies the use of the principle of discriminating in favour of the person sustaining the damage. The question of when the person seeking compensation can make the choice of the law applicable should be determined in accordance with the law of the Member State in which the court is seised”. See also Huber (2011) pp. 204 and AHERN, BINCHY & OTHERS (2009) pp. 220 and 221. There is some isolated criticism on the use of the ubiquity principle, some argue that it gives unjustified benefits to the victims of environmental damage, as the polluter pays principle only requires the polluter to bear the cost of environmental damage, in this sense see the Diana Wallis’s Report to the European Parliament, in Final A6-0211/2005, (June 27, 2005). 454 See in conjunction with Recital 31 Regulation (EC) No 864/2007, which explains that the Regulation enables the parties to choose the applicable law “to respect the principle party autonomy and to enhance legal certainty [...]” 455 FACH GÓMEZ (2004) pp. 291-318 and STONE (2011) pp. 389 and 390. 456 Article 14 Rome II does not apply to competition, restriction of competition, or infringement of intellectual property rights, See Article 6.4 and 8.3 Rome II. See also STONE (2011) pp. 389 and 390. 457 FACH GÓMEZ (2004) pp. 291-318 and STONE (2011) pp. 389 and 390.
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The Regulation presumes that the injury and the conduct causing the damage occurs
within a state, and does not provide rules for determining the applicable law when the
damage or the event giving rise to it occurs out of the jurisdiction of any state. It may
occur, for example, on the high seas or in outer space. Under these circumstances, a
connection with the state jurisdiction needs to be identified (for example the national
registration of the ship, aircraft, etc.) in order to determine the applicable law. If no
connection with the state jurisdiction can be identified, the escape clause in Article 4(3)
may apply by analogy. A similar approach to Article 4(3) might be taken in order to
determine which jurisdiction has a specific connection to the damage or the conduct
from which the damage arose.458
B) Simultaneous damages
The Regulation does not address situations where the damage or conducts that give rise
to the damage are located in several states simultaneously. Simultaneous damage or
conduct can include a wide range of interests not necessarily connected to each other.
The same relevant event could cause adverse effects in several states or two harmful
events located in different states may produce an "inseparable" harm (for example if the
sea is polluted by several chemical plants in different states).459
In the case Fiona Shevill460 (previous to Rome II Regulation), Article 5.3 of the
Brussels Convention of 27 September 1968461 is interpreted. The Court interpreted the
expression “place where the harmful event occurs”, when the damage is connected to
several jurisdictions and several courts in different countries might have jurisdiction.
The case deals with damage to the reputation of an individual. The Court resolved that
all jurisdictions where the damage is materialized have jurisdiction to hear about the
damage caused within its territory. So, the claimant could submit its claim under the
courts of any state where the damage occurred462 or where the offender is established.
458 AHERN, BINCHY & OTHERS (2009) pp. 221, where the authors point out that this solution should be applied as “the last resort”. 459 AHERN, BINCHY & OTHERS (2009) pp. 227. 460 C-68/93, Fiona Shevill, Ixora Trading Inc., Chequepoint SARL, Chequepoint International Ltd/ Presse Alliance SA. N; ECR I-415 (1995). 461 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1262 UNTS 153; 8 ILM 229. (1968). 462 In this case, the damage was created by some defamatory publications in different States. The Court considered that the damage was materialized in every State the publication was distributed
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If we use this case as a reference, it would be logical to say that in the event of
simultaneous damage, there are several applicable laws (all the laws of the states in
which the harm occurs)463, unless the individual claiming the damage chooses to submit
his claim to the law of the state in which the event that gives rise to damage occurs464,
or there is an agreement between the parties that sets the applicable law465.
Following a literal interpretation of Rome II and the case law, it is important to
point out that it could be understood that, when the damage is caused by a subsidiary of
a company, but one that is under the control of a parent company located in another
state, the event that gives rise to the damage would occur in both places: the subsidiary
and the parent company466. It is especially important to take this into consideration
Article 16467 of the Regulation allows Member States to apply "overriding mandatory
provisions" governing the non-contractual obligations. The overriding mandatory
provisions are defined by the ECJ468, which provides the following: “ the term must be
understood as applying to national provisions compliance with which has been deemed
to be so crucial for the protection of the political, social or economic order in the
Member State concerned as to require compliance here with by all persons present on
the national territory of that Member State and all legal relationships within that State.”
The article only provides for the application of mandatory rules of the lex fori, i.e.
belonging to the state whose courts hear from the matter. In some cases, despite its
international nature, these rules shall apply. In the view of some authors469, mandatory
rules may have a positive impact, as they offer a way of harmonizing judicial decisions
among the international community.
2.2.3.6. Article 17 - Rules of safety and conduct
463 Rule set out by Article 4.1 Rome II. 464 Rule set out by Article 7 Rome II. 465 Rule set out by Article 14 Rome II. 466 AHERN, BINCHY & OTHERS (2009) pp. 227. 467 See in conjunction with Recital 32 and Article 26 Rome II, regarding the possibility of applying exceptions based in the public interest. 468 Case C-376/96. Criminal proceedings against Jean-Claude Arblade and Arblade & Fils SARL and Bernard Leloup, Serge Leloup and Sofrage SARL. ECR I-8453. (1999) 469 FACH GÓMEZ (2004) pp. 291-318.
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Article 17 establishes that “In assessing the conduct of the person claimed to be liable,
account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of
safety and conduct which were in force at the place and time of the event giving rise to
the liability”; which means the defendant’s compliance or lack of compliance with the
legal provisions of the state in which he operates must be taken into account by the
court hearing from the case, as the defendant may have had lawful conduct, adjusted to
country’s laws. The Article states that the Court must consider the above only when
appropriate and only as a simple fact. Thus, Article 17 would not affect the applicable
law, which will be the one resulting from the application of the abovementioned
provisions of Rome II.470
2.2.4. CONCLUSIONS ROME II
2.2.4.1 The Scope of Rome II
Rome II Regulation consists in conflict-of-law rules; it determines the applicable law,
but does not include rules containing the substantive legal scheme directly applicable to
the tort obligation arising from environmental damage. The concrete applicable law will
provide concrete substantive rules.
The scope of the Regulation has some limitations, and it is not applicable to
every case of transboundary environmental damage in which a EU/EAA state is
involved; some international instruments prevail over Rome II. The Conventions
discussed in previous Chapters, where specific liability schemes are settled for
particular kinds of pollution, may apply. As stated earlier, certain environmental
damages arising from specific kinds of pollution have very special features and
historically, those damages have been particularly devastating, which justifies a special
legal treatment. The existence of a high number of instruments addressing
environmental damage increases the complexity of the already complex international
scheme of tort liability regarding environmental damage; but given the problems that it
presents, claiming for a simple regulation in regard of environmental damage is, to date,
a utopia.
470 AHERN, BINCHY & OTHERS (2009) pp. 227 and 228. See also STONE (2011) pp. 390
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2.2.4.2. Concepts in Rome II
Turning to another point, definitions, it is essential that the event giving rise to the
damages includes the place in which the subsidiary of a parent undertaking is located,
and the place where the decisions were taken by the top management level of the
company (regarding environmental policies or other matters); specially when the
implantation of those policies by the subsidiary cause the damage. The conduct that
causes the damage occurs in both places simultaneously. Besides, this option is
consistent with the case law. The inclusion of a wider definition of “environment”,
which includes its values, will be desirable and in accordance with the high
environmental standards pursue by the EU.
A positive achievement of the Regulation is the ambitious definition of
“environmental damage”, which is intended to tackle cases of pure ecological damage.
2.2.4.3. The Applicable law under Rome II
On the grounds of the ubiquity principle and party autonomy, Rome II regulation
establishes three possible applicable laws:
1) The law of the country where the damage occurs or lex loci damni471.
2) The law of the country where the event that gives rise to the damage occurs or
lex loci actus if it is the victim’s choice and it is more favourable than the lex
loci damni472.
3) The law freely chosen by the parties473.
To determine the applicable law, we will need to analyse the specific
circumstances of each particular case.
As discussed earlier, in the view of some authors, it would have been desirable
to exclude the application of Article 14 of the Regulation concerning freedom of
agreement between the parties towards the applicable law in cases of environmental
damage. It is unusual to agree the law applicable a priori in non-contractual obligations,
and its agreement ex post is generally detrimental to the interests of one of the parties.
Given the disparity of resources among parties, one of them could take advantage of this
471 Article 4.1 Rome II. 472 Application of the ubiquity principle, see Article 7 Rome II. 473 Following the autonomy party principle, see Article 14 Rome II.
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circumstance to put pressure on the other party to reach an agreement favourable to his
interest.
2.2.4.4. General conclusions
Rome II is a step forward to a high level of environmental protection; it gives legal
certainty and legal security to the subjects operating within the EU/EEA; they are able
to determine in advance which law or laws will be applicable to non-contractual
obligations arising from environmental damage, independent of the state whose court
hears the case.
It would be appropriate and in line with the background of EU’s policy,
especially with the aim of a high level of environmental protection and the polluters pay
principle, to take a step further to unify the liability schemes in case of damage to the
environment, and set minimum standards in tackling environmental damage. Among the
Member States of the European Union, different liability schemes can be identified.
Most states have fault-based systems, but others have strict liability regimes, especially
the Scandinavian countries (Finland, Sweden). In other cases the strict fault happens in
the particular case; in Germany, in the case Kupolofen474, courts imposed the burden of
proof to the operator of industrial facilities, rather than the person claiming damage. The
Court found that the operator was in a better position to obtain evidence. In the case
Sandstrahl475, in Austria, the court followed a similar approach. We could list countless
differences that show that the regulation is not uniform in the degree of environmental
protection and development among the Member States. 476
It would be desirable to develop legislation that harmonizes the substantive law
on non-contractual liability regarding environmental harm among the Member States.
Especially interesting would be the imposition of the burden of proof to the operator, as
generally it would have more resources and a more favourable position to obtain the
evidence, as most of the activities linked to the damage are usually under its control.
The generalization of these instruments, either through instruments of private
international law or domestic instruments, can provide for more effective reparation to
the victim within tort law.
474 Oberster Gerichtshof (Austrian Supreme Court of Justice ) Kupolofen case BGH 18.9.1984, BGHZ 92, 143, 150 f (1984). 475 Bundesgerichtshof (German Federal Supreme Court) Sandstrahl case 11.10.1995, 3 Ob 508/93, JBl 1996, 446 (1995). 476 HINTEREGGER & OTHERS.(2008) pp. 579-635.
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2.3. BRUSSELS I (RECAST)- RULES ON THE JURISDICTION OF THE COURTS AND
RECOGNITION AND ENFORCEMENT OF JUDGMENTS
The international community has struggled to identify the competent jurisdiction when
several jurisdictions might hear from the claims arising from environmental damage477.
Even though jurisdiction matters have been only mentioned in previous chapters, the
solution found within the European Union is worthy of mention, as it follows a unitary
approach not regarded by the international schemes already discussed.
The procedural rules lay down by the Regulation Nº 1215/2012 of 12 December
on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, also called the Brussels I (recast) Regulation, sets out rules for
determining the jurisdiction for civil and commercial matters when there is an
international element. The determination of the jurisdiction will involve procedural
differences, which can have an impact on how the matter is solved478. The main
differences between the EU Member States are the costs of litigation and access to
justice facilities479.
2.3.1. Scope of Brussels I recast
The Regulation is applicable from the 10th January 2015480. It does not address
environmental damage directly, nevertheless, this is included in its scope: the
Regulation refers to a special jurisdiction rule tackling matters of tort, delict or quasi-
delict, in which environmental damage will be generally included. However, incidents
governed by international conventions or EU regulations are excluded from the scope of
the Regulations (e.g. nuclear incidents or oil spills)481. Matters subject to arbitration are
excluded from the scope of the regulation482.
2.3.2 Forum according to Brussels I recast
According to the regulation, the person claiming environmental damage can choose
between possibilities:
477 COLON RÍOS (2014) pp. 129 to 172, see also NWAPI (2014) pp. 240 to 360. 478 CEBRIÁN SALVAT (2014) pp. 315 and 316. 479 Ibid. 480 Article 66(1) Brussels I recast. 481 Articles 67 to 70 Brussels I recast. 482 Recital 12 Brussels I recast.
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1. The person domiciled in a Member State may be sued in another Member State
where the harmful event occurred or may occur, following a forum commissi
delicti criterion for the allocation of territorial jurisdiction. Thus, the claimant
can bring up actions before the courts in the state where the damage occurred.483
2. Persons domiciled in a Member State can also be sued in that Member State.
The claimant can sue before the courts of the state in which the claimant is
domiciled.484
3. Principle of party autonomy is also embraced in the Regulation, which allows
the parties to agree the court of a Member State that is to have jurisdiction, and
therefore, the claimant and the defendant can come to an agreement in
determining the court having jurisdiction.485
2.3.3. Conclusions of Brussels I recast
Brussels I recast is far from answering all the questions arising from the exercise of
jurisdiction in regard to environmental damage, but it does provides a valuable
framework for identifying the court having jurisdiction in such cases. The claimant
would always have the possibility of suing before the courts of the place where the
damage was caused or the courts of the defendant domicile. The absence of a state with
territorial jurisdiction pertaining to a specific matter or the connection of the matter with
several states is almost solved within the EU.
3. CRIMINAL LIABILITY
3.1. INTRODUCTION The matter of environmental crime has been discussed in EU in the past two decades486.
On the Communication of the Commission of 13 September 2005487 it was stated that
483 Article 7(2) Brussels I recast. 484 Article 4(1) Brussels I recast. 485 Article 25 Brussels I recast. 486 MULLIER (2010) pp. 94. 487 Communication from the Commission to the European Parliament and the Council on the implications of the Court's judgment of 13 September 2005 (Case C-176/03 Commission v Council ECR 1-7879. (2005)). COM(2005) 583 final – Not published in the Official Journal]. (2005), where is stated the following “Although the Community legislature may use the criminal law to achieve its objectives, it may do so only if two conditions – necessity and consistency - are met”.
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criminal law should be used to achieve the environmental goals of the EU488. As a
result, several instruments were developed: the Directive 2008/99/EC of 19 November
2008 on the protection of the environment through criminal law489 and the Directive
2009/ 123/EC of 21 October 2009490 amending Directive 2005/35/EC491 on ship-source
pollution and on the introduction of penalties for infringements492. This research only
describes the Directive 2008/99/EC, as it has a wider scope and takes a unitary approach
towards environmental damage. However, it should be pointed out that both Directives
share a number of important common features.
3.2. DIRECTIVE ON THE PROTECTION OF THE ENVIRONMENT THROUGH
CRIMINAL LAW
According to the Directive, criminal penalties are to be imposed upon substantial
environmental damage to improve compliance with environmental law and to show
society’s disapproval of serious infringements of EU environmental law 493 .
Administrative and civil remedies have not been sufficient in achieving a satisfactory
level of compliance with environmental law 494. Member States should have transposed
the Directive by 26 December 2010495, including in their national law several criminal
penalties “in respect of serious infringements of provisions of Community law on the
protection of the environment”496.
3.2.1. SCOPE OF THE DIRECTIVE 2008/99/EC
488 It should be conveniently reminded that article 191(2) TFUE provides that EU environmental policies should aim a high standard of environmental protection. 489 Directive 2008/99/EC of the European Parliament and of the Council of 19th November 2008 on the protection of the environment through criminal law, OJ L 328. (Hereafter Directive 2008/99/EC). 490 Directive 2009/123/EC of the European Parliament and of the Council of 21th October 2009 amending Directive2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, OJ L 280. (Hereafter Directive 2009/123/EC) 491 Directive 2005/35/EC of the European Parliament and of the Council of 7th September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ L 255. 492 FAURE (2010) pp. 256. 493 Recital 3 Directive 2008/99/EC. 494 Ibid. See also FAURE (2010) pp. 258, MULLIER (2010) pp. 94 and 95 and GOESCHL & JURGENS (2011) pp. 199 and 200. However some scholars point out that criminal sanctions have the same effect than administrative mechanisms, and therefore they do not offer further protection to the environment, see FAURE & HEINE (2000). Furthermore, some authors found that the use of criminal law for protecting the environment has unwanted and undesirable effects, see GOESCHL & JURGENS (2011) pp. 214 and 215 and FAURE (2010) pp. 267 et seq. 495 Article 8 Directive 2008/99/EC. 496 Recital 3 Directive 2008/99/EC. See also FAURE (2010) pp. 258.
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The Directive encompasses unlawful conduct causing substantial damage to497:
i. Air (including the stratosphere)
ii. Soil
iii. Water
iv. Animals or plants (including too the conservation of species infringing
the EU legislation listed in Annex A, or the national law implementing
such legislation)
v. Or conducts breaching the EURATOM Treaty498, listed in Annex B
The Member States shall transpose the Directive before the 26th December
2010499, and provisions cannot be applied retrospectively, as it is inconsistent with the
principle of legal certainty500.
3.2.2. SUBSTANTIVE PROVISIONS OF DIRECTIVE 2008/99 – WHICH ACTS CONSITUTE AN ENVIRONMENTAL CRIME?
The Directive’s core is a list of conducts set out in Article 3501, which may be extended
by the national law of the Member States.
The conducts listed constitute an environmental crime when they are unlawful502
and committed with fault or with serious negligence503. Furthermore, some conducts
require that “the damage causes or is likely to cause death or serious injury to any
person or substantial damage to the quality of air, the quality of soil or the quality of
water, or to animals or plants”504. Thus, in regard to certain kind of damages, the
Directive is intended to cover hypothetical damage; acts that are likely to cause certain
damages are subject to criminal sanctions. However, there is no certain threshold of
probability and providing evidence of how likely it is that damage may occur might be
difficult505.
The Directive does not provide guidance on which criminal sanctions may be
applied to environmental offences, leaving room for discretion on the part of the
497 Article 2 (a) Directive 2008/99/EC. See also MULLIER (2010) pp. 109 and FAURE (2010) pp. 257. 4981957 Treaty Establishing the European Atomic Energy Community. 298 UNTS. 167. 499 Article 3 Directive 2008/99/EC. 500 See the Case C-168/95 Acaro ECR I-4705 (1996). See also JANS & HANS (2012) pp. 220 and 221. 501 MULLIER (2010) pp. 109. 502 Article 2 (a) Directive 2008/99/EC. See also MULLIER (2010) pp. 109 and FAURE (2010) pp. 257. 503 Recital 7 Directive 2008/99/EC. See also MULLIER (2010) pp. 109 and FAURE (2010) pp. 257. 504 Article 3 (a) (b) (d) and (e) Directive 2008/99/EC. 505 MULLIER (2010) pp. 109 and 110.
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Member States. As a result of this discretion, depending on the State Member where the
crime is perpetrated, the same offence can entail very different penalties, such
imprisonment, fines or other non-monetary sanctions (such as community service)506.
Inciting, aiding and abetting the offences listed in Article 3 must also be
punished as a criminal offence by Member States’ national laws507. The Member States
have the discretion to choose whether these conducts are penalized with the same or
lower sanctions than the offence itself.
According to Articles 6 and 7, Member States must ensure that legal persons be
held liable for the conducts listed in Article 3 and 4, by taking the necessary measures to
ensure that those conducts are “punishable by effective, proportionate and dissuasive
penalties”. Most scholars agree that the Directive does not require the imposition of
criminal sanctions and criminal prosecution to legal persons; while Articles 3 and 4
make explicit reference to criminal penalties, Articles 6 and 7 only make reference to
penalties508. Some of the Member States domestic legal frameworks do not provide
criminal corporate liability and its inclusion will require major changes in their legal
systems, as such legal systems follow a societas delinquere non potest approach, by
which no corporation can be held criminally responsible, as criminal responsibility it is
limited to natural persons509.
The national law should settle which entity is entitled to lodge a criminal
complaint before the competent judicial bodies. Member States are required to grant
access to justice to individuals that have a sufficient interest or maintain a breach on
their legal rights510. In general, individuals or associations are not entitled to exercise
legal actions against criminal offences if they do not suffer the consequences of those
offences, although they might have the possibility of reporting such an event to the
competent authority511.
3.2.3. CONCLUSIONS OF THE DIRECTIVE ON THE PROTECTION OF THE ENVIRONMENT THROUGH CRIMINAL LAW
506 FAURE (2010) pp. 277. 507 See Article 4 Directive 2008/99/EC. 508 MULLIER (2010) pp. 110 and FAURE (2010) pp. 270. 509 Ibid. 510 See the Directive 2014/52/EU of the European Parliament and of the Council of 16th April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ L 1/124. 511 MULLIER (2010) pp. 114.
119
In conclusion, the Directive lists types of conduct that should be sanctioned and
prosecuted through domestic criminal law. However, the Directive 2008/99/EC allows
the Member States discretion in key points such as corporate liability, the severity of the
criminal sanctions and access to justice facilities, which can vary considerably between
the Member States. Thus, the Directive provides a minimum basis but does not grant
severity on the most serious cases of environmental damage. The Directive does not
cover reparation or remediation of the damage, although the Member States’ domestic
systems might also impose such penalties to the polluter. Criminal liability, within the
framework of the EU, could be benefited by embracing the polluter pay principle,
establishing the duty of repairing the damages in cases of environmental crime.
Under the Directive, a fault-based liability scheme is provided. Evidence of fault or
serious negligence is required, while administrative or civil schemes of liability allow
strict liability. Generally, under criminal law, the threshold of the burden of proof is
higher and the perpetrator has more procedural protection.
Although the Directive constitutes a first step, its effectiveness can be improved
greatly by other complementary measures such as granting corporate liability,
facilitating access to justice, harmonizing sanctions or by analysing whether or not
certain activities should be subject to a strict liability system512.
4. CONCLUSIONS OF CHAPTER 6 The European Union’s liability schemes in regard to environmental damage are not
perfect and can be improved. As it was stated earlier, Member States have discretion in
some crucial points. However, minimum standards are provided, granting certain level
of environmental protection in all the geographical territory of the European Union.
The most remarkable achievements regarding liability in the European Union
frame are:
• The establishment of administrative liability for environmental damage
regardless of its impact on legal persons. The polluter is compelled to take
remedial measures and bear their cost when he damages certain kind of natural
resources.
• The establishment of conflict rules that determine the applicable law and the
court having jurisdiction when a non-contractual obligation arises, which
512 Similar approach than the ELD.
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translates in legal certainty and effective channels and opportunities of the
claimants to access justice.
• EU legal framework grants that the most serious offences to the environment are
persecuted and sanction through criminal law.
Even if the European example cannot be seen as resounding success in regards
to ex post environmental protection, it does offer higher and harmonized standards of
protection among the Member States.
These steps towards to a high level of environmental protection have been
achieved through cooperation. As it was stated in Chapter 2, cooperation is a tool for
achieving the common interest of a group states, and the European Union is an example
of how, though cooperation, environmental standards can be improved.
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CHAPTER 7: GENERAL CONCLUSION
The environment is protected through two kinds of measures, the first kind is focus on
preventing the damage while the second kind activates once environmental damage has
occurred and remedial action is required. Ex ante measures were briefly introduce and
are intended to serve as background. When preventive and precautionary measures fail
and damage is caused, the polluter may pay.
The research core concerns the second kind measures, ex post tools, which rely
on the idea that the polluters shall bear the costs of polluting. It particularly concerns
liability and the legal framework regulating such liability at the international and the
European level. The comparison of these two systems shows how can environmental
standards be improved at the international level. Notwithstanding this, the European
Union legal framework has also important shortcomings that could be evaluated and
strengthen.
Having analysed the environmental ex post protection offered by the
international and EU legal frameworks, this section is aimed to summarize these
findings by comparing both systems.
1.1. STATES RESPONSIBILITY AND LIABILITY:
The no-harm principle is the basis for state’s responsibility and liability. It involves that
a state shall refrain from causing damage in the jurisdiction of third states, and if a state
fails to fulfil such duty states liability or responsibility may arise. There are no specific
instruments dealing with environmental incidents, so general regulation is applied.
However states responsibility/liability arises in very limited cases, and does not
provide a remedy in most cases. Furthermore, state responsibility only arises if the
pollution attributable to a state and if such pollution is considered as a wrongful act or a
breach of an international obligation. If pollution, even though is harmful, is lawful, a
state shall not be held responsible/liable for the damages caused. Few cases are covered
by states responsibly or liability. Generally, private operators are the direct source of
pollution. Therefore, states are unwilling to adopt agreements providing state liability or
responsibility for environmental damage, even if national environmental policies and
other governmental decisions have a great impact on the environment. As a
consequence, liability is channelled to the private entities operating under private law,
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which are usually controlling the polluting activity and, at the same time, are the main
benefit receivers.
1.2. PRIVATE ENTITIES’ LIABILITY
Private entities can be liable according to administrative, civil or criminal law.
Regulation in regards to private entities liability has been also a sensitive matter, which
seems to come into conflict with the sovereign powers of each state. At the international
level, agreements establishing liability are scarce and there is a lack of instruments
tackling environmental damage from a unitary approach; most of the instruments are
narrowly focused on specific kinds of pollution. There are few substantive regulations
in force and no conflict rules determining the competent jurisdiction or the applicable
law to cases of environmental transboundary harm.
The international legal framework is very fragmented, full of loopholes from
which highly polluting operators directly benefit. Among the possible solutions for
environmental damage matters, civil liability schemes have had a central role, while
administrative and criminal liabilities have been relegated to a purely residual role.
1.2.1. Civil liability
Civil liability schemes are, by far, the most developed at the international level. Several
conventions provide substantive regulation addressing environmental damage arising
from concrete sources of pollution. The most important conventions concern damages
caused by oil spills in the sea and nuclear incidents. Most of the instruments of analysed
share the following features:
• Only applicable to a specific kind of pollution
• Provides limitations to liability
• Establishes an obligation to take out insurance in order to ensure liability.
• Channels liability to certain entity.
• Provides rules to determine the competent jurisdiction and rules for the
enforcement and recognition of judgments.
• Does not apply to pure ecologic damage or offers protection to the
common goods
• Low levels of ratification.
As there is no instrument in force tackling environmental damage for a unitary
approach or conflict rules determining the applicable law or the governing jurisdiction,
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most of the cases of transboundary environmental damage are not governed by
international law, Only one of the conventions discussed, the 1993 Lugano Convention,
takes a unitary approach, but is not in force. This constitutes a great weakness of the
international protection of the environment, there is no legal certainty and access to
justice is not granted.
At the European Level, EU legal framework offers some improvements, as it
combines legislation with a unitary approach with instruments tackling specific kinds of
pollution. Rome II Regulation determines the applicable law and Brussels I recast
establishes the governing jurisdiction. These Regulations allow determining the law
applicable to non-contractual obligations and the governing jurisdiction. None of the
Regulations ensure a high level of environmental protection nor provide minimum
standards; notwithstanding, Rome II Regulation allows the victim to choose between
the law of the state in which the damage occurs and the law in which the event that
gives rise to the damage occurs, avoiding the application of the less stringent law in
cases of transboundary pollution. National law is to determine and regulate the remedies
offered under civil law to the victims of environmental damage. The European example
shows that the extent of access to justice and legal certainty can be strengthen by
conflict rules that determine the applicable law and the governing jurisdiction.
Both at the international and European level, civil liability seems to be suitable
in cases of environmental damage where the following requirements are fulfilled:
• Identifiable victims with a special connection with the damage
• Identifiable polluters
• Causal link between the polluter actions and the damage
• The damage can be measured in monetary terms
When one of these conditions is not met, civil liability does not give acceptable
solutions to the victims of environmental damage or to the environment itself.
Nevertheless, at the European level, these shortcomings are partially solved by
administrative and criminal liability, which place the public authorities as monitoring
trustees of environmental goods. At the international level, damage to the Common
Goods, such as the high seas or climate, cannot be claimed by any entity. Thus, the
Common Goods remain unprotected by civil liability. Solutions such as the ones
introduced by the EU legal framework or the 1993 Lugano Convention, which is not in
force, could raise the protection of the Common Goods at an international level.
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1.2.2. Criminal and administrative liability
At the international level, criminal and administrative liability schemes are poorly
developed. There is no specific regulation of criminal or administrative liability. Several
instruments make brief reference to punish or prohibit certain behaviours though
national law, but they do not expressly stipulate criminal prosecution or administrative
sanctions of such behaviours. Only the 1989 Basel Convention and 2000 United Nation
Convention against Transnational Organized Crime make explicit reference to criminal
prosecution. Most of the questions in regard to criminal and administrative punishment
in connection with environmental damage remain to be settled; despite the seriousness
of the consequences of certain behaviours, such as the illegal trade of endangered
species, the illegal movement of waste or unreported fishing.
The ex post protection of the environment through criminal and administrative
law at the European level is more developed. EU legal framework establishes that
failure in complying with certain legislations related to environment may involve
administrative or criminal liability.
Under the Directive 2008/99/EC, substantial breaches of environmental law are
prosecuted through criminal law, showing society’s disapproval of these behaviours.
However, given the broad discretion of Member States in establishing the concrete
penalties and other key points, a severe punishment is not granted.
Directive 2004/35/EC sets out the administrative liability scheme, which is
to arise when this damage is not related to personal injury, property or economic
loss and affects certain environmental goods. The core concept revolves around the
idea that environmental damage should be prevented or remedied, aside from any
private interest; the environment has intrinsic value in its own right. The designed
public authority act as trustees of the environmental goods, and therefore is the
entitled entity to claim for remedial action.
It can be affirmed categorically that EU legal framework tackling criminal
and administrative liability is one step ahead, providing solutions to some of the
problems faced by liability, especially to relation to the protection offered to the
Common Goods.
2. SOME FINAL THOUGHTS
The 1992 Rio Declaration, Principle 13, establishes that states must cooperate
in order to develop further liability schemes tackling environmental damage within their
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territorial jurisdiction or areas beyond their jurisdiction. However, has it has been
shown, since 1992 few relevant agreements to these regard have been reached at the
international level; it looks like this international commitment has fallen in deaf ears.
Cases such as those related with the climate change are not remedied by liability at any
level; diffuse pollution is not covered by the ex post measures.
The low levels of ratification of the international legislation providing liability
schemes covering environmental damage might be the greatest weakness that
exacerbates all of the obstacles that remedial measures face. Liability to this regard
seems to be unappealing to states that show their unwillingness to adopt instruments
regulating such schemes. Liability cannot move forward if no instrument is ratified.
The European example sheds further light on some of the most controversial
problems, such as the coverage of the common goods or the criminal prosecution of
environmental offences. The Member States have implemented minimum standards,
closing some of loopholes that can be exploit by major polluters. Notwithstanding, great
discretion is given to Member States, which levels of environmental protection can
differ greatly from one another. The European legal framework can be further improved
not only by raising the minimum standards, but also by giving solution to other major
problems faced by liability, such as causation, which is only facilitated through strict
liability schemes, or by providing innovations in regard to the methods for assessing the
economic value of environment.
The environmental crisis is a global challenge that needs to be overcome
globally. Heavy polluters slip through the loopholes of international, European and
national law; and as long as these loopholes exist, heavy polluters will use the law to
satisfy their own interest. Maybe the solution to the current environmental crisis is not
to be found in magic formulas, but rather in commitment among the international
community.
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ANNEX I
127
128
TABLE OF CASES (IN CHRONOLOGICAL ORDER)
Case law of the International Court of justice (ICJ)
ICJ Gabcikovo-Nagymaros Project (Hungary v Slovakia), Judgement, ICJ Reports 1997 p. 7
ICJ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional Measures, Order of 22 November 2013, ICJ. Reports 2013, p. 354 (Judgement pending)
ICJ Barcelona Traction, Light & Power Company Limited (Spain v. Belgium),
Judgment, IJC reports 1970, p 3.
Case law of the Permanent Court of International Justice
Factory At Chorzów, Germany v Poland, Judgment, Claim for Indemnity, Merits,
Judgment No 13, (1928) PCIJ Series A No 17, ICGJ 255 (PCIJ 1928), 13th September
1928.
Case law of International Arbitration
France-New Zealand Arbitration Tribunal. Rainbow Warrior, France v New Zealand, 74 ILR 241 (1987)
United Nations. Trail Smelter Dispute. United States vs Canada: Reports of International Arbitral Awards, 1941.
Case law of the International Tribunal of Law of the Sea
ITLOS Case No. 10, Order of 3 December 2001. Case Concerning the MOX Plant (Provisional Measures).
Case law of the Court of Justice of the European Union (ECJ)
Case- C-412/10 Deo Antoine Homawoo v GMF Assurances SA. ECR I-0000, (2011)
Case C-378/08 ERG and others ECR I-119, (2010)
Case C-121/07 Commission v France ECR I-9159, (2007)
Case C-176/03 Commission v Council ECR 1-7879, (2005).
Case C-376/96. Criminal proceedings against Jean-Claude Arblade and Arblade & Fils
SARL and Bernard Leloup, Serge Leloup and Sofrage SARL. ECR I-8453, (1999)
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Case C-157/96 National Farmers’ Union ECR I-2211, (1998)
Case C-168/95 Acaro ECR I-4705, (1996)
Case C-68/93, Shevill and others / Presse Alliance ECR I-415, (1995)
Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v. Commission ECR II-2205, (1995) Case C-21/76 Handelskwekerij G. J. Bier B.V. v Mines de Potasse d'Alsace S.A. ECR
1735, (1976)
Case law of the European Court on Human Rights
ECRH C-Martinez Martinez and María Pino Manzano v. Spain Application No.
61654/08 (2012)
ECRH Flamenbaum and Others v. France Application Nos. 3675/04 and 23264/04
(2012)
Case law of National Courts
Case law of the United States of America:
Ninth Circuit Court of Appeals, 21ft September 2012. Native Vill. of Kivalina v.
ExxonMobil Corp. Et. Al. (2012)
District Court Southern District Court of Missisipi. 20th March 2012. Comer v Murphy
Oil USA. (2012)
Supreme Court of the United States. American Electric Power v. Connecticut. (2011)
Ninth Circuit Court of Appeals, California v. General Motors et. Al (2009)
District Court for the Northern District of California, Friends of Earth, Inc. v. Watson
(2005)
Supreme Court of the United States. Sindell v Abbott Laboratories. (1980)
Court of Appeals of New York , Boomer vs. Atlantic Cement Company (1970)
Case law of other National Courts:
Obersten Gerichtshoft OGH 11.10.1995, 3 Ob 508/93 JBI 1996, 446. Case Sandstrahl.
(Austria 1995)
Bundesgerichtshof BGH 18.9.1984, BGHZ 92, 143, 150 f. Case Kupolofen. (Germany
1984)
130
International United Nations and other related Entities. Conferences and Declarations 1992 United Nation Conference on Environment and Development, UN Doc A/CONF151/26 Rev 1 (Vol. I), 31 ILM 876. 1972 Declaration of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14 and Corr.1, 11 ILM 1416. Covenants 1967 United Nations International Covenant on Civil and Political Rights (ICCPR), UN Doc. A/6316, 999 UNTS 171, 6 ILM 368.
1967 United Nations International Covenant on Economic, Social, and Cultural Rights (CESCR), UN Doc. A/6316, 993 UNTS 3, 6 ILM 368.
Agreements, Conventions and Protocols 2010 United Nations Environmental Programme Nagoya Protocol to the 1992 Biodiversity Convention on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 1760 UNTS 79, 31 ILM 818. 2000 United Nation Convention against Transnational Organized Crime, 2225 UNTS 209. 2000 United Nations Environmental Programme Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2226 UNTS 208, 39 ILM 1027, UN Doc. UNEP/CBD/ExCOP/1/3, at 42. 1999 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation, in Decision-Making and Access to Justice in Environmental Matters, 2161 UNTS 447, 38 ILM 517. 1999 United Nations Environmental Programme Protocol on Liability and Compensation for Damages Resulting from Transboundary Movement of Hazardous Wastes and their Disposal, UN Doc. UNEP/CHW 1/WG/1/9/2.
131
1998 Kyoto Protocol to the United Nations Framework Convention on Climate Change, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22. 1996 International Maritime Organization Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 36 ILM 1. 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10th December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542, 2167 UNTS 88. 1992 United Nations Framework Convention on Climate Change, 1771 UNTS 107, S. Treaty Doc No. 102-38, U.N. Doc. A/AC.237/18 (Part II)/Add.1, 31 ILM 849. 1991 United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, 1989 UNTS. 310. 1990 International Maritime Organisation of the United Nations Convention on Oil Pollution Preparedness, Response and Co-operation, 1891 UNTS 51, 30 ILM 733. 1989 United Nations Environmental Programme Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1673 UNTS 126; 28 ILM 657. 1987 Unites Nations Environmental Programme Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3, 26 ILM 1550. 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3, ATS 31, 21 ILM 1261.
1985 United Nations Environmental Programme Vienna Convention for the Protection of the Ozone Layer, TIAS No. 11,097, 1513 UNTS 323, 26 ILM 1529. 1978 International Civil Aviation Organization of the United Nations Protocol to Amend the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, ICAO Doc. 7364/310, UNTS 182. 1973 International Convention for the Prevention of Pollution from Ships, 12 ILM 1319 1340 UNTS 184, amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. 1971 United Nations General Assembly Convention on International Liability for Damage Caused by Space Objects, 24 UST. 2389, TIAS. No. 7762, 10 ILM.
132
1958 United Nations Convention on the High Seas, 13 UST 2312, 450 UNTS 11. 1952 International Civil Aviation Organization of the United Nations Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, ICAO Doc. 7364/310, UNTS 182. 1951 Food and Agricultural Organization of the United Nations International Plant Protection Convention, 150 UNTS 67. 1949 Food and Agricultural Organization of the United Nations Agreement for the Establishment of a General Fisheries Council for the Mediterranean, 213 UNTS 237. 1971 United Nations General Assembly Convention on International Liability for Damage Caused by Space Objects. 24 UST 2389, TIAS. No. 7762, 10 ILM 965.
Drafts
Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities. Official Records of the United Nations General Assembly, fifty-eight session (1st May – 9th June and 3rd July -11th August 2006), Un DOC.A/61/10. Draft Articles on Responsibility of States for Internationally Wrongful Acts in ILC “Report of the International Law Commission on the work of its 53rd Session (23rd April-1st June and 2nd July- 10th August 2001). UN DOC A/56/10 et seq. Others United Nations Environmental Programme (2007) “Training Manual on International Environmental Law”.
United Nations, International Law Commission. (2002), The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries” pp.29.
United Nations Governing Council, Decision nº 7 of 17th March 1992, UN Doc. S/AC.26/1991/7/Rev.1.
Reports GH, Brundtland and World Commission on Environment and Development. Our Common Future: Report of the World Commission On Environment and Development. Official records of the UN General Assembly, Forty-second session, Supplement No. 25, A/42/25.
133
Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, UN Doc. A/HRC/10/61, 15th January 2009. Resolutions 1982 United Nations General Assembly World Charter for Nature, A/RES/37/7, 22 ILM 455.
International Law Association
Resolutions
Resolution of the 70th Conference of the International Law Association in New Delhi, India, 2 - 6 April 2002. UN Doc. A/CONF.199/8, 9th August 2002. Multilateral Environmental Agreements Conventions and Protocols 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 996 UNTS 245, TIAS 11084, 11 ILM 963. 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State, 172 LNTS 241. 1991 Protocol of Environmental Protection to the Antarctic Treaty, ILM 30.
Organisation for Economic Co-operation and Development Recommendations Organisation for Economic Co-operation and Development Recommendation of the Council concerning the Application of the Polluter-Pays Principle to Accidental Pollution, C (89) 88; 7th July 1989. Organisation for Economic Co-operation and Development Recommendation of the Council on the Implementation of the Polluter-Pays Principle, C (74) 223; 14th November 1974.
134
Organisation for Economic Co-operation and Development Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, C (72); 128; 26th May 1972. Organisation for Economic Co-operation and Development Recommendation of the Steering Committee of 22nd April 1971 NE/M(71)1
Other sources 2014 IUCN, & WB “How much is an Ecosystem Worth? Assessing the Economic Value of Conservation”. Intergovernmental Panel on Climate Change “5th Assessment Report: Climate Change 2013”. Intergovernmental Panel on Climate Change “4th Assessment Report: Climate Change 2007”.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, International Court of Justice (ICJ), 8th July 1996. SUPRANATIONAL LEGISLATION Europe European Union
Communications
Commission of the European Communities (2000) Communication on the Precautionary Principle (Brussels: COM (2000)1)- Not published in the Official Journal
Communication from the Commission to the European Parliament and the Council on the implications of the Court's judgment of 13th September 2005 (Case C-176/03 Commission v Council ECR 1-7879. (2005). COM(2005) 583 final) – Not published in the Official Journal
Conventions
1993 Council of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment CETS No.: 150. 32 ILM. 480.
135
Decisions
European Union Council Decision 96/191/EC of 26th February 1996 concerning the conclusion of the Convention on the Protection of the Alps, OJ L 61, p. 32. Directives Directive 2010/75/EU of the European Parliament and of the Council of 24th November 2010 on industrial emissions (integrated pollution prevention and control) (recast), OJ L 334.
Directive 2009/123/EC of the European Parliament and of the Council of 21st October 2009 amending Directive2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, OJ L 280.
Directive 2008/99/EC of the European Parliament and of the Council of 19th November 2008 on the protection of the environment through criminal law, OJ L 328.
Directive 2005/35/EC of the European Parliament and of the Council of 7th September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ L 255.
Directive 2004/35/CE of the European Parliament and of the Council 21st April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143.
Directive 85/337/EEC of the Council of 27th June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, p. 40, as amended by the Directive 97/11/EC of the Council of 3rd March 1997, OJ 1997 L 73, p.5 and as amended by the Directive 2009/31/EC of the European Parliament and of the Council of 23rd April 2009, OJ L 140 p. 114 Primary legislation Consolidated version of the Treaty on the Functioning of the European Union of 26th October 2012, OJ C 326. Consolidated version of the Treaty establishing the European Atomic Energy Community of 26th October 2012, OJ C 327. Recommendations
EU Commission Recommendation of 22nd January 2014 on Minimum Principles for the Exploration and Production of Hydrocarbons (such as Shale Gas) Using High-Volume Hydraulic Fracturing (2014/70/EU), OJ L 39/72.
136
Regulations
Regulation (EC) Nº 1215/2012 of the European Parliament and Council of 12th December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351.
Regulation (EC) Nº 864/2007 of the European Parliament and Council of 11th July 2007 on the law applicable to non-contractual obligations, OJ L199/40.
Other sources 2010 European Environment Agency Technical report No 13/2010 Mapping the impacts of natural hazards and technological accidents in Europe; An overview of the last decade. European Commission, White Paper on Environmental Liability, COM(2000) 66 final (9th February 2000). McKenna (1995) Study of Civil Liability Systems for Remedying Environmental Damage, Final Report EU White Paper on Environmental Liability of 31st December 1995. EURATOM
Treaties
1957 Treaty Establishing the European Energy Community, 298 UNTS. 167.
Recommendations
Council Recommendation of 3rd March 1975 regarding cost allocation and action by public authorities on environmental matters 75/436/EURATOM, OJ L 194. America
Organisation of the American States
Declarations
American Declaration of the Rights and Duties of Man, OAS. Res. XXX, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); 43 AJIL Supp. 133 (1949).
137
Africa
Organisation of the African Unity
Resolutions
Organisation of African Unity Council Of Ministers Resolution on Dumping of Nuclear and Industrial Waste in Africa, 23rd May l988, CM/ Res. 1153(XLVIII) 28 ILM567.
National legislation
Austria
Wasserrechtsgesetz (WRG), Water Act, BGBl 1959/215, as amended by BGBl I 2006/123.
Forstgesetz (ForstG), Forestry Act, BGBl 1975/440, as amended by BGBl I 2005/87.
France
Code de l'environnement" amended by article 229 "Portant national engagement by l'environnement" 12th July 2010.
Germany
Atomgesetz (Nuclear Energy Act), § 2, no. 3 (1976).
Bundesimmissionsschutzgesetz (Federal Emmission Control Act), § 1, no. 2 (1974).
Sweeden
SFS (1969) Nos. 387 and 388; Sveriges Rikes Lag (91st ed. 1970) B 1576 as amended in SFS (1970) No. 898, (1971) Nos 370 and 643.
United States of America
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C.A., sections 9601 et seq.
Clean Water Act of 1977, 33 U.S.C.A., section 132 et seq.
Oil Pollution Act of 1990, 33 U.S.C.A., sections 2701 et seq.
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LITERATURE
Books and Articles
AHERN, J. & BINCHY, W. (2009) “The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: A New International Litigation Regime”. Boston. Martinus Nijhoff Publishers. ANONYMOUS (2015) “Causation In Environmental Law: Lessons From Toxic Torts”. Massachusetts. Harvard Law Review, Vol. 128 Issue 8. Massachusetts. Harvard Law School.
ATAPATTU, S. (2009) “Climate Change, Differentiated Responsibilities and State Responsibility: Devising Novel Legal Strategies for Damage Caused by Climate Change”. In ATAPATTU S. & OTHERS (2009) “Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy”. Cheltenham. Edward Elgar Publishing.
ATAPATTU, S. (2008-2009) “Global Climate Change: Can Human Rights (and Human Beings Survive this Onslaught”. Colorado Journal of International Environmental Law and Policy, Vol. 20, Issue 1. Colorado. Madison James Publishing Corp.
BENNET J. & OTHERS (2001) “The Choice Modelling Approach to Environmental Valuation”. Cheltenham. Edward Elgar Publishing.
BERGKAMP, L.FAURE, M. HINTEREGGER & M. PHILIPSEN, N. (2015) “Civil Liability in Europe for Terrorism-Related Risk”. Cambridge. Cambridge Studies in International and Comparative Law. Cambridge University Press.
BERGKAMP, L. & GOLDSMITH, B. (2013) “The EU Environmental Liability Directive: A Commentary”. Oxford. OUP Oxford.
BERGKAMP, L. (2001). “Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context”. The Hague. Kluwer Law International. BEYERLIN, U. & MARAUHN, T. (2011) “International Environmental Law”. Oxford. Hart Publishing.
BOISTER, N. (2012) “An Introduction to Transnational Crime Law”. Oxford. OUP Oxford.
BOSSELMAN, K. (2009) “The Principle of Sustainability: Transforming Law and Governance. Environmental Law for Sustainable Society”. Bodmin. Ashgate Publishing.
139
BOYLE, A.E. (2005). “Globalising Environmental Liability: The Interplay of National and International Law”. Journal Environmental Law, Vol. 17 no.1. Oxford. Oxford University.
BRYANT, G. AND CAPPELLETTI, M. (1978) “Access to Justice: The Newest Wave in the
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