Liability for International Environmental Harm

by

Jaye Ellis

• LAST REVIEWED: 23 February 2017
• LAST MODIFIED: 22 February 2018
• DOI: 10.1093/obo/9780199796953-0017

Introduction

Three main approaches to the legal consequences of transboundary environmental harm have been mooted by authors and by a succession of Special Rapporteurs to the International Law Commission (ILC): liability ex delicto, under which states would be responsible for transboundary harm if they failed to take reasonable measures to prevent the harm; liability sine delicto stricto sensu, under which states would be responsible to pay compensation for transboundary harm even in the absence of fault or negligence; and an equitable balancing of interests approach, often referred to as liability sine delicto lato sensu, under which transboundary harm may be permitted as long as it is reasonable and equitable. Three projects of the ILC are relevant here: the Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (the Articles on State Responsibility); the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (the Articles on Transboundary Harm, formally titled International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law); and the Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities (the Principles on Allocation of Loss)—all cited under International Instruments. This is a difficult and controversial topic, for both doctrinal and policy reasons. Transboundary environmental harm is generally not caused by state activity per se, but rather by private actors. The activities that give rise to it are often considered beneficial, and prohibiting them is rarely feasible. It may be difficult to identify an injured state, particularly if the environmental damage is felt in global commons areas. Proving causation can be immensely challenging. States have widely disparate capacities to ensure a high standard of environmental protection. Finally, determining what environmental damage ought to be compensated, and how the amount of compensation is to be calculated, raises complicated economic, political, and philosophical questions.

General Overviews

Barboza 1994, Barboza 2011, Xue 2003, and Lefeber 1996 offer detailed, sophisticated, and extremely well-researched doctrinal and policy analysis of liability for environmental damage and its interaction with related issues, notably the due diligence obligation of prevention and state responsibility. The themes discussed and approaches taken are different, however. One of Barboza’s strengths is his inside knowledge of the ILC’s treatment of the issue. In addition, his own close association with one approach, namely liability sine delicto stricto sensu, does not prevent him from providing a balanced discussion. Xue addresses liability in the context of environmental regimes, and of spaces such as global commons areas; she also devotes extensive attention to the policy implications of various approaches to liability. One of Lefeber’s main contributions is his conceptual clarity, absolutely essential in a body of literature in which there is little terminological or conceptual consistency. He devotes a good deal of attention to state responsibility and to the duty of prevention, approaching these issues from various points of view, carefully characterizing the concepts and distinguishing them from one another, while also indicating the points of contact between them. Francioni and Scovazzi 1991 and Dupuy 1976 focus on responsibility with somewhat less attention to liability, but, like Lefeber 1996, shed important light on the distinctions and interrelationships between the two concepts.

• Barboza, Julio. International Liability for the Injurious Consequences of Acts Not Prohibited by International Law and Protection of the Environment. Collected Courses of the Hague Academy of International Law 247. The Hague: Martinus Nijhoff, 1994.

  Extensive and detailed treatment of the subject. More conceptual than Barboza 2011. See in particular pp. 315–318.

• Barboza, Julio. The Environment, Risk and Liability in International Law. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2011.

  Written by a Rapporteur for the Articles on Transboundary Harm. In-depth critical analysis of the development of those articles. Thorough discussion of the concepts of risk, harm, responsibility, and liability in international law. Discussion of relevant state practice and international conventions. An essential, and current, source.

• Dupuy, Pierre-Marie. La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle. Paris: Pedone, 1976.

  Examination of risk, abuse of right, and sic utere tuo. Discussion of liability for ultrahazardous activities and for ecological damage generally. Extensive consideration of implementation issues, including availability of funds for compensation, imputation, causality. Exploration of approaches, including better environmental standards, the polluter-pays principle, and financial mechanisms such as insurance and indemnification funds.

• Francioni, Francesco, and Tullio Scovazzi, eds. International Responsibility for Environmental Harm. London and Boston: Graham & Trotman, 1991.

  Contributions from leading public international and international environmental law scholars. Canvasses the central themes. Includes sections on legal consequences, harm to commons areas, and procedural obligations, among others. Chapters are detailed and thorough.

• Lefeber, René. Transboundary Environmental Interference and the Origin of State Liability. The Hague: Kluwer Law International, 1996.

  Organized around liability ex delicto (the violation of primary obligations, including the obligation of due diligence, leading to state responsibility); sine delicto stricto sensu (liability that arises as a result of simple causation); and sine delicto lato sensu (transboundary damage triggers procedural obligations).

• Xue, Hanqin. Transboundary Damage in International Law. Cambridge, UK: Cambridge University Press, 2003.

  DOI: 10.1017/CBO9780511494642

  Addresses the nuclear, marine, and space sectors; general discussion of transboundary environmental harm, including, unusually, a discussion of harm to global commons areas. Close attention to doctrinal and policy issues. Thoughtful and detailed discussions of due diligence and strict liability. A comprehensive and sophisticated analysis; rigorous scholarship.