Of sense and sensibility: Reflections on international liability regimes as tools for environmental protection

International and Comparative Law Quarterly

Volumn 53, Issue 2, 2004, Pages 351-368

  Brunnéee, Jutta ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

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EID: 33750089615     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.2.351     Document Type: Article

References (121)

1. With respect to terminology, in comparison to State responsibility, ‘international liability refers more generally to mechanisms for compensating and otherwise remedying harm caused by states or other actors, whether or not the harm resulted from the breach of an international obligation’. See TA Berwick ‘Responsibility and Liability for Environmental Damage: A Roadmap for International Environmental Regimes’ (1998) 10 Georgetown Int'l Envtl L Rev 257, at 259.
2. See Chorzow Factory case, [1928] PCIJ Rep, Ser A, No 17.
3. For an overview see J Brunnée ‘The Responsibility of States for Environmental Harm in a Multinational Context—Problems and Trends’ (1993) 34 Cahiers de Droit 825.
4. See D Bodansky and JR Crook ‘Symposium: The ILC's State Responsibility Articles— Introduction and Overview’ (2002) 96 AJIL 773, at 777.
5. See also G Hafner and HL Pearson ‘Environmental Issues in the Work of the ILC’ (2000) 11 Yearbook of Int'l Env Law 3, at 15–23.
6. Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, at 43, UN Doc A/56/10 (2001) available at (last visited 25 Sept 2003) [hereinafter State Responsibility Draft].
7. UN GA Res 56/83, para 3 (12 Dec 2001).
8. For a detailed discussion of the considerations behind this approach, see DD Caron ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’ (2002) 96 AJIL 857, at 861–6.
9. For an overview, see P Birnie and A Boyle International Law and the Environment (2nd edn Oxford OUP 2002), at 181–200.
10. See X Hanqin Transboundary Damage in International Law (Cambridge CUP 2003), at 286.
11. See, in particular, Trail Smelter Arbitration (1931–1941) 3 RIAA 1905
12. Lake Lanoux Arbitration, (1957) 12 RIAA 281
13. Cosmos 954 Claim (1979) 18 ILM 899
14. Case Concerning the Gabcikovo-Nagymaros Project [1997] ICJ Rep 7
15. Nuclear Tests cases [1973] ICJ Rep 99 (Interim Measures)
16. [1974] ICJ Rep 253 (Merits)
17. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 66.
18. See Barcelona Traction case [1970] 1 ICJ Rep 3
19. State Responsibility Draft, above n 6, Arts 42, 48.
20. For a discussion, see J Peel ‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context’ (2001) 10 RECIEL 2.
21. As Birnie and Boyle, above n 8, at 192, suggest, the answer to this question depends in part on the underlying primary rules.
22. See also A Boyle ‘Reparation for Environmental Damage in International Law: Some Preliminary Problems’, in M Bowman and A Boyle (eds) Environmental Damage in International and Comparative Law (Oxford OUP 2002) 17.
23. T. Scovazzi ‘State Responsibility for Environmental Harm’ (2001) 12 Yearbook of Int'l Env Law 43, at 51.
24. Consider in this context the uphill battle that the plans by Tuvalu to sue Australia for its failure to address climate change would face. See BBC News Online, ‘Tiny Pacific Nation Takes on Australia’ available at (last visited 26 Sept 2003).
25. See D Bodansky ‘Customary (and not so Customary) International Environmental Law’ (1995) 3 Indiana Journal of Global Legal Studies 105.
26. Scovazzi, above n 13, at 55.
27. See Birnie and Boyle, above n 8, at 189.
28. While the topic was cast in general terms, transboundary environmental harm quickly emerged as a central issue. See Hafner and Pearson, above n 5, at 23.
29. Indiana Journal of Global Legal Studies, at 23–24.
30. See A Boyle ‘State Responsibility and Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?’ (1990) 39 ICLQ 1.
31. P.-M. Dupuy ‘The International Law of State Responsibility: Revolution or Evolution?’ (1989) 11 Mich J Int'l L 105, at 113.
32. Mich J Int'l L, at 109–112.
33. Mich J Int'l L, at 117
34. G. Handl ‘Liability as an Obligation Established as a Primary Rule of International Law: Some Basic Reflections on the International Law Commission's Work,’ (1985) 16 Netherlands Int'l L J 49, at 56–59
35. Birnie and Boyle, above n 8, at 182.
36. See PS Rao First report on the legal regime for allocation of loss in case of transboundary harm arising out of hazardous activities, UN Doc A/CN.4/531 (21 Mar 2003), para 33
37. Hafner and Pearson, above n 5, at 25.
38. The UN General Assembly took note of the Articles, and asked the ILC to proceed with its work on liability. See UN Doc A/CN.4/531, para 36.
39. See UN Doc A/CN.4/531, para 24 (‘the trend of requiring compensation is pragmatic rather than grounded in a consistent concept of liability’), and para 37 (concluding that the Commission would ‘better deal with the allocation of loss among different actors involved’).
40. UN Doc A/CN.4/531, para 16.
41. UN Doc A/CN.4/531, para 3.
42. UN Doc A/CN.4/531, para 114.
43. UN Doc A/CN.4/531, para 152.
44. See Liability and Compensation Regimes Related to Environmental Damage: Review by UNEP Secretariat (2002), at 15 available at (last visited 7 Oct 2003).
45. Lugano Convention, reprinted in (1993) 32 ILM 1228.
46. However, the convention does provide for a number of defences to liability. ILM, Art 8.
47. ILM, Art 12.
48. The fact that the Lugano Convention has not entered into force is particularly striking given that it requires only three ratifications to do so. See A Daniel ‘Civil Liability Regimes as a Complement to Multilateral Environmental Agreements: Sound International Policy or False Comfort?’ (2003) RECIEL 225, at 227.
49. See T Gehring and M Jachtenfuchs ‘Civil Liability for Transboundary Environmental Damage: Towards a General Liability Regime’ (1999) 14 Eur J Int'l L 1.
50. Paris Convention, 956 UNTS 251.
51. Vienna Convention, 1063 UNTS 265.
52. The Paris Convention was complemented by the Brussels Supplementary Convention, 1041 UNTS 358
53. the Vienna Convention was supplemented by Protocol to Amend the Vienna Convention, reprinted in (1997) 36 ILM 1462
54. the Convention on Supplementary Compensation for Nuclear Damage, reprinted in (1997) 36 ILM 1473. Neither the protocol nor the supplementary convention to the Vienna Convention are in force.
55. Civil Liability Convention, 973 UNTS 3.
56. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1110 UNTS 57.
57. (1992) Protocol to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969.
58. Reprinted in PW Birnie and A Boyle Basic Documents on International Law and the Environment (Oxford OUP 1995), at 91.
59. (1992) Protocol to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. Reprinted in Birnie and Boyle Basic Documents on International Law and the Environment, at 107.
60. A further draft protocol to the Fund Convention is under discussion. See RR Churchill ‘Facilitating (Transnational) Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems, and Prospects’ (2001) 12 Yearbook of Int'l Env Law 3, at 19.
61. The US is not a party to the amended conventions. In view of the Exxon Valdez disaster, it enacted more stringent national standards for the compensation of oil pollution damage. See Rao, above n 24, paras 55–60.
62. Civil Liability Convention, above n 40, Arts I and II.
63. See Rao, above n 24, paras 52–4.
64. See Churchill, above n 43, at 9–10, 19.
65. See G Handl ‘Territorial Sovereignty and the Problem of Transnational Pollution’ (1975) 69 AJIL 50.
66. See J Brunnée ‘The Kyoto Protocol: Testing Ground for Compliance Regimes’ (2003) 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 255, at 262–5.
67. More than 30 years ago, the Stockholm Declaration on the Human Environment called upon States to ‘co-operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction’. See Principle 22, Stockholm Declaration on the Human Environment, reprinted in (1972) 11 ILM 1420. In 1992 Principle 13 of the Rio Declaration on Environment and Development reiterated the call.
68. See Rio Declaration on Environment and Development, reprinted in (1992) 31 ILM 876.
69. Basel Convention, reprinted in (1989) 28 ILM 657.
70. ILM, Arts 4.1(c) and 6.
71. Initial work was undertaken, in 1990 and 1991, by a UNEP ad hoc working group. Upon entry into force of the Basel Convention, the Conference of the Parties directed the working group to continue its work on the liability protocol. See GFS Soares and EV Vargas ‘The Basel Liability Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal’ (2001) 12 Yearbook of Int'l Env Law 69, at 71–72.
72. Basel Liability Protocol, text available at .
73. See Soares and Vargas, above n 51, at 72.
74. See Basel Liability Protocol, above n 52, Art 2.
75. See Yearbook of Int'l Env Law, Art 4.
76. For an overview on the various other options for channeling liability, see Soares and Vargas, above n 51, at 86–88.
77. This raised the concern that generators could escape liability by passing wastes off to other entities. See JA Long ‘Hazardous Materials and Energy: Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal’ (1999) Colo J Int'l Envtl L & Pol 253, at nn 38–40.
78. Basel Liability Protocol, Colo J Int'l Envtl L & Pol.
79. Maximum liability varies according to the amount of waste involved, and depending on whether the notifier or disposer is the liable party. See Basel Liability Protocol, Colo J Int'l Envtl L & Pol, Art 12 and Annex B.
80. Colo J Int'l Envtl L & Pol, Art 13.
81. Basel Liability Protocol, Colo J Int'l Envtl L & Pol, Art 14.
82. Colo J Int'l Envtl L & Pol, Art 15.1.
83. Developed countries, including Australia, Canada, and Germany, had rejected calls for the creation of a compensation fund. See Long, above n 55, at n 15.
84. See Soares and Vargas, above n 51, at 101.
85. In particular, African countries expressed their disappointment with this outcome. See Colo J Int'l Envtl L & Pol, at 103.
86. Basel Liability Protocol, above n 52, Art 5.
87. Basel Liability Protocol, Art 12.1.
88. Information available at (last visited 25 Nov 2003). For a review of potential impediments to entry into force, see Daniel, above n 35, at 230–1.
89. For an overview, see A Shibata ‘The Basel Compliance Mechanism’ (2003) 12 RECIEL 183.
90. Reprinted in (1992) 31 ILM 1333.
91. The convention entered into force on 19 Apr 2000.
92. Reprinted in (1992) 31 ILM 1312.
93. The convention entered into force on 6 Oct 1996.
94. See Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, Arts 4 and 5. Text available at . For an overview, see (last visited 29 Sept 2003).
95. Reprinted in (1992) 31 ILM 818.
96. For an overview of the liability discussions, see Daniel, above n 35, at 231–3.
97. Reprinted in (2000) 39 ILM 1027.
98. See K Cook ‘Liability: “No Liability, No Protocol”’ in C Bail et al (eds) The Cartagena Protocol on Biosafety: Reconciling Trade in Biotechnology with Environment and Development? (London Earthscan 2002) 371, at 373.
99. For an overview, Cook, above n 72.
100. For an overview on the issues raised in the liability discussion, see the report of the Stockholm Convention Workshop on Liability and Redress, ‘Liability and Redress’.
101. Reprinted in (1991) 30 ILM 1461. Art 16 of the protocol requires that parties develop an annex on ‘rules and procedures relating to liability’ for damage caused by activities in Antarctica.
102. The eighth offering built on the basic models of existing nuclear and oil pollution liability regimes, but also pushed beyond these precedents. It would have provided for strict, unlimited, operator liability; defined damage as any harmful effect above the de minimis range; required operators to take precautionary and response measures; required operators to contribute to a compensation fund where damage is irreparable; required non-state operators to carry insurance; provided for residual state liability in cases where States fail to meet their commitments under the protocol; created a dispute settlement regime. See R Wolfrum ‘Environmental Protection of Ice-covered Regions’, in FL Morrison and R Wolfrum (eds) International, Regional and National Environmental Law (The Hague Kluwer Law International 2000) 329, at 336–7.
103. See L de La Fayette ‘The Concept of Environmental Damage in International Liability Regimes’, in Bowman and Boyle (eds), above n 12, at 178–81. The US has proposed a much more limited liability regime, which would hold parties liable only for failure to take response action following an environmental emergency.
104. On trends pertaining to the compensation of environmental damage, see the detailed review in P Sands ‘Liability for Environmental Damage and the UNEP Working Group of Experts— Introductory Article by the Rapporteur’, in A Timoshenko (ed) Liability and Compensation for Environmental Damage (UNEP 1998) 1.
105. See, eg, Rao, above n 24, para 150.
106. However, Churchill points out, that some of the amendments and updates to these regimes are not yet in force. See Churchill, above n 43, at 31.
107. Liability and Compensation for Environmental Damage.
108. See Liability and Compensation for Environmental Damage, at 32.
109. See, eg, B Baker Röben ‘Civil Liability as a Control Mechanism for Environmental Protection at the International Level’, in Morrison and Wolfrum (eds), above n 81, 821, at 821–7.
110. See Cook, above n 72, at 373–4.
111. For a comprehensive, and critical, assessment, see L Bergkamp Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (The Hague Kluwer Law International 2001).
112. Some commentators suggest that (domestic) liability regimes can promote cost internalization, but often result in delayed clean-up or do not achieve deterrence objectives due to difficulties in identifying the polluter, insufficient insurance, or insolvent polluters. See M Boyer and D Porrini ‘The Choice of Instruments for Environmental Policy: Liability or Regulation?’, in T Swanson (ed) An Introduction to the Law and Economics of Environmental Policy: Issues of Institutional Design (Amsterdam Elsevier 2002) 245.
113. See Churchill, above n 43, at 39.
114. See Proposal for a Directive of the European Parliament and the Council on environmental liability with regard to the prevention and remedying of environmental damage, COM (2002) 17 final [2002] OJ C 151 E/132.
115. For detailed discussions see L Bergkamp ‘The Proposed Environmental Liability Directive’ (2002) European Envtl L Rev 294 (Part I), 321 (Part II)
116. M. Meyer-Koenecke ‘The Proposal for a Directive on Environmental Liability’ (2003) Envtl L Network Int'l Rev 4.
117. See D Austin and A Alberini An Analysis of the Preventive Effect of Environmental Liability (2001) see (last visited 10 Feb 2004).
118. See K Sergerson (ed) Economics and Liability for Environmental Problems (Burlington, VT Ashgate 2002), at xxii.
119. See Rao, above n 24, para 119.
120. However, even here observers have highlighted varying effectiveness. Rao, above n 24, paras 136–7, contrasts the experience in the Amoco Cadiz case (13 years of litigation, high burden of proof, award of one-tenth of amount claimed) with that of the Tanio case, which proceeded after the oil pollution fund had come into existence (nearly a hundred claimants, receiving nearly 70 per cent of the amount claimed within 3 to 5 years of the incident).
121. Brunnée, above n 4.