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4. The expanding scope of the law: global reach and international cooperation
These conceptual developments have not taken place in a vacuum, as they correspond to the actual evolution of the law and state practice.
A number of fundamental developments characterize the contemporary evolution of this body of law, and they have in turn contributed to the clarification of the extent and scope of the basic principle referred to above.
One development to note is that environmental law applies today not only to activities that cause transboundary effects between neighbouring states - as was very much the case at the time of the Trail Smelter,8 the Lake Lanoux,9 or the Gut Dam,10 but also to those that have effects at a long distance or, still more important, that have an effect upon areas beyond territorial jurisdiction. Thus the law has evolved from a purely national level in its origins to a transnational dimension and then to a properly international or global role. This geographical extension of the law, quietly developing during this century, has set the stage so that the current problems affecting the environment can be addressed.
The most significant breakthrough in this process of innovation came with the Trail Smelter decision in 1941.11 Relying on principles and decisions of US courts and on the basis of identifying a general principle of international law, the arbitral tribunal concluded that "no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.... "12 Such a principle meant in fact that international law had entered the field of transboundary environmental protection, albeit still limited to the territories of states. A somewhat similar conclusion was reached by the International Court of Justice in the Corfu Channel Case13 in relation to acts contrary to international law or the rights of other states. It should be noted, however, that in the specific domain of the utilization of rivers, a similar principle had been identified since the early part of the century.14
The Trail Smelter decision had other interesting impacts on the development of the law. First, the tribunal ordered the smelter to "refrain" from causing further damage, which involves a preventive measure to forestall harmful activities in the future. The tribunal then established a regime for the control of emissions, including technical improvements to the industry and the institutional mechanism of an ad-hoc commission of three scientists that had the power to adopt binding decisions.15
After these first steps were given specific applications, the basic principles could be found in different situations before national courts or international tribunals. Thus it was no surprise when the 1972 Stockholm Declaration included the often quoted Principle 21, which links states' sovereign rights relating to the exploitation of resources and national environmental policies to 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."16 The link had already been established under international law, which explains why there was general agreement to express it in this Principle.
Various international documents and treaties have since reaffirmed the essence of Principle 21 or further expanded it in order to cope with new situations affecting the environment. The case of the Cosmos 954,17 the EEC environmental policy adopted in 1973,18 the 1979 Convention on Long-Range Transboundary Air Pollution19 with its 1985 Protocol setting in place precise obligations for the reduction of sulphur emissions,20 and the IAEA Conventions on Notification and Assistance in the case of Nuclear Accident21 are all cited as examples of the outreaching scope of environmental law today.22
Principle 21 was a further step of the utmost importance because it extended the transboundary reach of the law to include areas beyond the limits of national jurisdiction, thereby improving upon the reach of the Trail Smelter decision and providing the global scale referred to above. This development has been particularly apparent in relation to the marine environment and the atmosphere. The regime established under the 1982 Convention on the Law of the Sea for the marine environment,23 like the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques,24 the Vienna Convention for the Protection of the Ozone Layer of 1985,25 and its Montreal Protocol on Substances That Deplete the Ozone Layer of 198726 have all established broad international regimes based on the principle of responsibility. The special case of Antarctica will be discussed further below.
However, as commented upon by the Italian document referred to above, many of these developments lack precise rules on responsibility, primarily because of the difficulty in identifying a single source or establishing the causal link between conduct and damage. The traditional requirements of international law were not always well suited to meet the changing conditions of industrial activity that are at the heart of current environmental problems. However, international law has begun to respond to the new challenges, and recent international regimes have included a more elaborate set of secondary rules governing responsibility. In addition, as suggested by the Italian document, it is always possible to complement the existing treaties with protocols dealing with responsibility.27
A second major development was prompted by the changing international reality. As the Restatement of the Law (Third) states, "it soon became obvious that unilateral action by states to control pollution was not sufficient, and that international cooperation and regulation to protect the environment were necessary."28 Here again the legal measures evolved from the national to the binational level, then to the regional ambit, and most recently to the global level, thereby setting the appropriate stage for dealing with current issues.
As a consequence of increased international cooperation to protect the environment, new obligations have devolved upon states in the environmental field. Some examples of how these obligations have broadened the scope of the basic principle of responsibility for environmental damage are: (1) the responsibility to control activities taking place beyond the state territory - like the jurisdictional outreach provided for under IMO29 and the Law of the Sea Conventions;30 (2) the responsibility engaging the state for activities of private entities; (3) the need to obtain the consent of other states for given activities, as provided for under the Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal;31 and (4) the more general obligation to notify and consult in environmental matters.32
In the light of the present debate about whether treaties are an adequate source of rules of international law as to ensure the protection of the global environment, or whether more flexible procedures should be sought, it is worth remembering that treaties are not the only source of law to consider. Some of the major developments in the Law of State Responsibility in an environmental context have emerged from the operation of customary law and general principles of law as understood by international tribunals and the writings of eminent authors. In addition, the fundamental principle embodied in the maxim sic utere tuo ut alienum non laedas (use your own property so as not to injure the property of another)33 has repeatedly been applied to the settlement of environmental disputes, on both national and international levels, and has formed the basis of the rationale inspiring the Trail Smelter decision, the work of the International Law Commission, and most of the international regimes in force for the protection of the environment. In fact, the very principle of international responsibility for environmental damage is an expression of this older general principle of law. Because the flexible use of the sources of international law has not historically been a problem, it should not really be a contemporary one either.
5. Material changes in the law of state responsibility
Three levels of state responsibility have been identified in relation to the environment: the mildest and most traditional one is that related to responsibility on the basis of fault or lack of due diligence; an intermediate level, called objective or strict responsibility, is related to an obligation of result, which is the obligation not to damage the environment and the violation of which will engage responsibility regardless of fault; the most stringent level, referred to as absolute responsibility, concerns liability for acts not prohibited by international law irrespective of fault or of the lawfulness of the activity in question.34
Examples of all these types of responsibility can be found in contemporary international environmental law. The Law of the Sea Convention regime is mostly based on the due diligence test,35 an obligation of result involving objective or strict liability is found in the Convention on Environmental Modification Techniques,36 and finally, absolute international liability is found in the Convention on International Liability for Damage Caused by Space Objects.37 Most treaties rely on general obligations of cooperation or the commitment to take appropriate measures to prevent pollution, and thus involve only a due diligence obligation to prevent pollution, the mildest of the three standards.
However, the fact that international law has been exploring more stringent forms of responsibility is, in and of itself, indicative of the sense of change that is taking place.38 The most significant of these changes is the introduction of the concept of absolute and strict liability. Delinking the adverse effects of a given hazardous or dangerous activity from the element of culpa of the state or operator incorporates the test of "objective" responsibility as opposed to the "subjective" criteria of traditional international law.39 Still more stringent criteria have been emerging lately, particularly as concerns the idea of holding a state responsible for damage ensuing from given activities irrespective of whether it took all necessary measures to prevent injury. The result is that responsibility will attach in spite of due diligence having been observed. Liability for acts not prohibited by international law is another major development that will be examined in more detail below.
The issue of environmental damage has also given rise to interesting developments in the international law of responsibility. First, in addition to traditional notions of economic damage, international law is beginning to recognize environmental damage as such for the purpose of invoking the responsibility of states.40 In this context the environment becomes a value on its own merits and is protected by the law, as evidenced by Cosmos 954,41 the recent Patmos Case,42 and, above all, by the Antarctic arrangements.43
Second, the International Law Commission has made the point that material damage would not be an essential element in the case of responsibility for wrongful acts. The attribution of the conduct to the state and the breach of an international obligation would suffice to invoke responsibility.44 Under traditional international law, however, the violation of the obligation would be sufficient to engage responsibility, which means that the old rules are very helpful indeed to broaden the scope of the law at present. On the other hand, when the international liability is for acts not prohibited by international law, material damage would be the essential basis of compensation,45 resulting in the paradox that, on this point, the new rules are more restrictive than the old.
Although the seriousness of the damage is another issue where the practice is not entirely uniform, certain gravity is, without a doubt, required. This requirement, however, is qualified by two considerations that relate to the evolving state of international law. First, given the emphasis on preventive measures characterizing present environmental law, the adoption of all necessary preventive and remedial measures even where no injury has occurred is beginning to emerge as a new type of obligation. Second, as mentioned in the Restatement of the Law (Third), when pollution is caused by substances that are highly dangerous to human life and health, there is no need to prove a significant impact or injury, thereby altering rather dramatically the traditional standards of international law.46 Examples of this trend are blacklisting of hazardous products and abnormally dangerous activities like the launching of space objects.47
6. Expanding the protection of the affected interests
In many instances environmental damage will affect the territory of a given state and thus provide the legal basis for the exercise of claims. Increasingly, however, damage extends to areas beyond national jurisdiction and thus becomes global in nature. This situation prompts the question of who shall be entitled to a claim, demand the termination of the activities in question, and eventually receive compensation. Because of the need to avoid competing claims and the lack of institutions representing the interest of the international community, international law has so far been reluctant to recognize an actio popularis, requiring instead a direct legal interest on the part of states.
As the Italian document correctly points out, this situation could lead to the unacceptable result of leaving a case of serious damage without any remedy.48 International law has begun to react to this new challenge in several ways. Firstly the public interests of the world community are gradually being recognized since the Barcelona Traction case.49 The violation of obligations erga omnes would provide legal standing to all states to react. Secondly, the concept of jus cogens also provides a legal ground for the action of states not directly damaged. And finally, the rules of the Law of Treaties on the breach of a multilateral treaty equally allow for the action of all states concerned.50 In addition, the work of the International Law Commission on the codification of the Law of State Responsibility follows a similar orientation.51
While lacking judicial or arbitral precedents, the view has been expounded to the effect that any state may bring a claim to redress the violation of an obligation owed to the international community as a whole and request that the threat of environmental damage be terminated.52 If this approach were adopted, a number of problems would still remain, but most of them could be handled by developing technical legal rules. Concurrent claims can eventually be harmonized by means of a balancing of interests, as seen to an extent in the field of antitrust laws and concurrent jurisdictions. International institutions could eventually be empowered to proceed on behalf of the international community, thus avoiding numerous individual claims. The beneficiary of compensation could also be determined as the process of institutionalization progresses in the environmental field. Precedents for solutions along these lines already exist in the regimes created for the marine environment and the Antarctic.
The apportionment of responsibility also reflects the evolution of the law. When two or more states are involved in an activity giving rise to responsibility, the ensuing liability will be apportioned among them.53 This principle also justifies the apportionment of responsibility between a state and private operators under its control, or the operation of subsidiary liability in given instances. This limited extension of responsibility is the initial reaction of the international legal system to the fact that every passing day, it is more difficult to identify a single source of given forms of pollution. What international law has not yet done, but could very well do in the near future, is to extend responsibility beyond the state undertaking an activity to reach the entity ultimately responsible for pollution (for instance, the manufacturer of defective equipment).54 This corresponds to what is known in domestic law as "product liability."
Given that international law has been broadening the definition of pollution and environmental processes in order to include large ecosystems and that the emphasis has clearly been put on the development of preventive measures, the consolidation of the obligation to notify and consult has been, as noted above, another major development.55 While consensus on this point could not be attained at the Stockholm Conference,56 principally because of the concern of delaying development projects in an excessive manner, gradually such obligations have become accepted. These obligations were finally consolidated in the aftermath of the Chernobyl accident in the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986).57 The policy of major lending institutions evaluating the environmental effects of projects applying for financing has also helped to reduce the concern about excessive delays referred to above.58
Most of these developments have arisen out of specific areas of environmental interest and concern, such as the marine environment, Antarctica, outer space, nuclear-test bans, weather modification, and others. Some of these areas will be examined individually below, focusing on their historical development and on their potential to evolve into the corpus juris gentium including treaties, customary law, and general principles of law. It is this broader corpus that is now beginning to be applied to large-scale climatic changes in the world.
Domestic law has also had a major input into this process of material change. From United States domestic law come the procedural arrangements for the participation of foreign states in the domestic planning process or the presentation of claims.59 In fact, under both the Clean Water Act60 and the Clean Air Act,61 a foreign state can participate, on conditions of reciprocity, in hearings for the revision of a state implementation plan in order to eliminate adverse consequences for that foreign state. Also under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,62 a foreign claimant may assert a claim in given circumstances as if it were a United States claimant. Some of these arrangements are of evident interest for international law.
Another development of interest under domestic law is the requirement of an environmental-impact statement for major actions, including occasionally the effects on the global commons. Actions of this kind are envisaged, for example, in the United States National Environmental Policy Act (1969),63 the Executive Order on Environmental Effects Abroad of Major Federal Actions of 1979,64 and the policy of the Nuclear Regulatory Commission.65
7. Liability for acts not prohibited by international law: the ongoing debate
International liability for acts not prohibited by international law involves a rather stringent form of responsibility-liability, which in turn has a strong impact on the nature and extent of remedial measures in the field. It follows that the debate about the present state of international law on this point has been most lively.
First, it should be noted that the much discussed decision of the International Law Commission in 1976,66 referred to above (which lists among international crimes those relating to the breach of an international obligation of essential importance for the safeguarding and preservation of the human environment), has to be understood more as an expression of concern in line with the Stockholm Conference than as a radical departure in terms of the consequences attached to the breach of such an obligation.
The work of the International Law Commission on "International Liability"67 reveals a cautious approach to the state of international law on the matter. On the one hand the separation of liability for acts not prohibited by international law from State Responsibility is indicative of the policy of attaching a legal consequence - liability even to international lawful activities, yet on the other hand State Responsibility could well apply to extra-hazardous operations,68 thus also attaching a legal consequence to activities that are not, per se, unlawful. In this regard the remedial aspect of the law would not be different under either approach. What is of importance is that international law is accepting legal consequences for a variety of activities that may result in an adverse impact upon the environment.
The "compound 'primary' obligation" identified by the International Law Commission in its schematic outline on "international liability" refers to four basic duties: prevent, inform, negotiate, and repair.69 The emphasis is on preventive measures as well as the new obligation to notify and consult. However, it is surprising that the failure to comply with the first three duties mentioned is not regarded as wrongful and, consequently, no action can be brought against such failure; only the failure to make reparations is ultimately identified with a wrongful act and, hence, engages the State's responsibility.70
It follows that from the perspective of the International Law Commission, there is really not much difference between international liability and state responsibility, since the ultimate test of wrongfulness in both lies in the failure to make a reparation. While it is true that under international liability the initial activity can be lawful and under state responsibility normally it will be unlawful (although neither excludes both lawful and unlawful activities), the two are equated in terms of the end result.
It has been rightly observed that one consequence of the International Law Commission approach could "allow a state to persist in an unlawful act even without the consent of the injured state, as long as the acting state pays monetary reparations to the injured state."71 In the field of environmental protection this result would be utterly unacceptable and self-defeating, which is why there has been an emphasis on both preventive measures and new developments that require that pollution be terminated and allow all states to bring actions to this effect.
Although there has also been debate about whether the Trail Smelter decision involved, in addition to its pioneering invocation of international liability, an element of international responsibility given that a wrongful act had been committed, it is quite clear that the effect of the decision never would have allowed the harmful activity to persist. As noted above it ordered the smelter to "refrain" from such activity and put in place a regime for the control of emissions.72 This result is in line with the emerging consensus that international law ought to provide adequate protection of the environment.
Another element of the debate prompted by the International Law Commission's work is the method of determining reparation. The schematic outline favours the method of reparation determined by a "balance-of-interests" test, which takes into account the shared expectations of the states involved, a number of principles and factors, and the extent to which the duties to prevent, inform, and negotiate have been complied with.73 This approach offers the advantage of introducing an element of flexibility that allows the weighing of the different circumstances of the case, but, on the other hand, it involves greater subjectivity. The alternative test of strict liability is in a sense more objective, because the harmful result will be separated from the intention of the state and even from the fact of having discharged the relevant duties. Again this last approach is more in line with the needs of environmental protection.
8. The expanding role of practice: substantive and procedural developments
However articulate most of these arguments are, in practice the solutions sought are more straightforward and less abstract, particularly in the field of international environmental law. Furthermore, international liability can hardly be separated from liability in general, since the essential issue is how to make available rules of substance and procedure that will ensure adequate compensation to those affected by environmental damage. An innovative approach to the traditional state of the law is developing in treaty and domestic practice as evidenced by the following:
1. Based on principles of "federal common law," which to an extent resemble the principles of international law, it has been concluded that a state can present a claim for injury to its environment independently from any injury to its nationals or property.74 The environment, as noted above, thus becomes a value protected on its own merits. The concept of remedy under international law is thereby significantly broadened. In addition, preventive and remedial measures will be highlighted even in the case where there has been no injury. Treaty practice is beginning to reflect this innovative approach.75
2. Liability for pollution injuries is becoming increasingly recognized by means of treaties, which provide a number of uniform principles in matters such as strict liability, identification of the competent forum, limitations of liability, insurance and financial guarantees, subsidiary state liability, and international funds, to name a few.76
Proposals have been introduced for extending state liability not only to directly caused damage but also to indirect state action that has ultimately led to an environmental harm. As explained above, states may be liable for private actions of entities and individuals under their jurisdiction, or they may have a form of subsidiary liability. International joint commissions are becoming a common mechanism for dealing with the matter of transboundary environmental problems. Nor is self-help ruled out in given circumstances as a preventive or remedial measure.77
The most elaborate rules in the matter of civil liability are those of (1) the 1969 Convention on Civil Liability for Oil Pollution Damage,78 the related International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage,79 and their respective supplementary agreements,80 and (2) the Conventions on Third Party Liability in the Field of Nuclear Energy,81 including the Convention on Civil Liability for Nuclear Damage82 and related agreements. Agreements of private operators in the case of oil pollution, such as TOVALOP,83 OPOL,84 and CRISTAL85 are also important elements in the development of the law in the field of liability.
3. In spite of the developments evidenced by some instances of treaty practice, such practice is generally limited to only a few sectors of activity.86 Some efforts are being made to broaden this practice, as evidenced by the 1988 Joint Protocol on the Conventions on Nuclear Liability,87 but they are still far from becoming comprehensive. Discrepancies between domestic legislation and treaty practice are sometimes a bar to the adoption of appropriate solutions. Limitations on liability have also become an obstacle for adequate remedial act ion.88 This has prompted a number of national legislatures to establish unlimited liability or the alternative approach followed by the Antarctic arrangements, which will be discussed below. Civil liability provisions are now at the heart of many international negotiations, recent examples of which include the 1989 Basel Convention on Transboundary Movements of Hazardous Wastes89 and the 1989 Geneva Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail, and Inland Navigation Vessels.90
4. As a consequence of the limitations just discussed, more comprehensive and integrated arrangements concerning liability are being sought, with particular reference to the payment of full compensation to those affected. Here subsidiary state liability plays a fundamental role. "Product liability" would also be a helpful development, a first hint of which may be discerned in the negotiations leading to a protocol on liability for damages relating to transboundary movements of hazardous wastes that would involve the liability of the exporting sate.91 Procedural aspects are also relevant for this discussion of more comprehensive arrangements. The elimination of the requirement of exhausting local remedies before a claim is presented, the presentation of a "consolidated claim" on behalf of all those affected, and the establishment of international claims commissions for certain priority matters are all suggestions that aim at a more flexible and timely procedure.92
5. None of the above precludes recourse to domestic remedies, as evidenced by the Bhopal93 and Amoco Cadiz94 cases and many other transboundary incidents involving smoke and coal-dust damage, chemical insecticides, salinization, or noise pollution.95 Domestic case-law has given rise to other developments of interest.
6. Given the difficulty of identifying a single source of pollution, some domestic legal systems have introduced the general remedial measure of having the various enterprises involved in an activity pay a tax or forms of compensation. Proposals to this effect have also been made at the international level, but international law has not yet introduced such measures, except in very specific fields, notably nuclear energy.96
7. Particularly in the United States courts, jurisdictional choice of law difficulties arising in cases of interstate damages have gradually led to a clarification of the pertinent rules.97 It has been suggested that in transboundary cases, the governing law should be that of the state where the suit is brought, or that the wrongful act should be considered to have been committed in both states so that either one of them will have jurisdiction, or alternatively, that the law where the damage has occurred should apply.98 Although these questions are particularly relevant for private remedies under domestic legal systems, they also have an important bearing upon international law solutions. As mentioned above, some of the treaty regimes have provided rules as to the competent forum and applicable law. Special arrangements for transboundary activities have also been made, particularly in terms of the posting of bonds for guaranteeing compensation for potential damage and requiring subsidiary state liability.99
8. Equal access to remedies and courts by nationals and foreigners alike on a non-discriminatory basis is also a trend that should be noted since the 1977 OECD recommendations to this effect.100
Although the developments of state practice in relation to remedial measures are not quite systematic, they clearly reveal a trend toward the broadening of claims and liability and their legal consequences, both in terms of the material content of the law and the introduction of more flexible procedural rules. This can be further confirmed by the following discussion of some specific areas of concern.
9. The protection of the marine environment: a leading case of innovation
The 1982 Convention on the Law of the Sea and related treaties have significantly developed the rules of international law applicable to the preservation of the marine environment and illustrate the evolution of state responsibility. In point of fact, states are under the obligation to ensure that activities under their jurisdiction or control "are so conducted as not to cause damage by pollution to other States and their environment" and that any pollution arising from such activities "does not spread beyond the areas where they exercise sovereign rights.101 The activities included in this obligation are those undertaken both by the state and by entities of a private nature under state jurisdiction and control. It is also quite apparent that this provision covers not only transboundary effects of pollution but also harm to areas beyond national jurisdiction. In other words, the global scale of environmental effects is incorporated into this particular regime.
This regime encompasses all sources of pollution, a further indication of the broadening concern and scope of international law. In addition, a broad definition of pollution of the marine environment is included in this and other treaty regimes as an expression of the very same concern.102 Important IMO and related conventions have developed a well-structured normative regime dealing with specific questions of marine pollution particularly in terms of oil pollution, discharge and dumping of waste, and safety at sea.103
In light of this more advanced regime, it follows quite naturally that international law has accepted holding a state responsible for pollution injuries resulting from a violation of its obligations in this field. Although the primary obligation to enforce the law is bestowed upon the flag state of the ships concerned, other states are not prevented from taking the necessary preventive or remedial actions. In addition to the powers allocated to the coastal state and the port state in given instances, there is the most important right of intervention on the high seas, which is ultimately related to a measure of self-help under international law.104 The obligation to notify is also prominent in this field. These developments of course do not prejudice the rules dealing specifically with issues such as the environmental consequences of seabed-mining operations, cooperation in emergencies, or the protection of fragile ecosystems.105
Remedial measures have also evolved significantly in the area of the law of the sea. In addition to recourse to the general remedies provided for under international law, coastal and port states can participate actively by detaining and investigating ships and by instituting proceedings.106 The following trends are important in light of their innovative character:
1. It has been concluded that obligations of states in relation to the common environment are erga omnes and that any state can pursue remedies for violations resulting in significant injury to the environment.107 This is an important expression of the global extent of the issues involved.
2. A number of special conventions have developed the rules on civil liability of persons violating environmental obligations, notably in regard to the operation of nuclear ships108 and to oil-pollution damage.109 Under the first regime, immunity from legal process under national or international law is to be waived, and claims may be brought before the courts of either the licensing state or of the state where the injury occurred.110 Under the second regime, only the latter courts are competent, but decisions are enforceable in any state party to the Contention.111 Supplementary compensation systems have also been established in the case of oil-pollution damage.112
3. Shared liability schemes have been provided for under the various non-governmental agreements referred to above (TOVALOP, OPOL, and CRISTAL).113
4. Liability has also been established for the adoption of wrongful enforcement measures, described in one regime as measures that "exceed those reasonably necessary.114
5. Domestic remedies ought to be available to the injured person to obtain compensation, it being a duty of the state to ensure the availability of and to enforce the payment of compensation. The limitations on liability provided for under some regimes have been occasionally interpreted by the courts in a restrictive manner, thus allowing other possible forms of compensation to the injured person.115
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