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1. 1. Brownlie, System of the Law of Nations: State Responsibility (Part 1) (Clarendon; Oxford, 1983). F.V. García-Amador, The Changing Law of International Claims (Oceana, 1984). See also generally, with particular reference to the work of the International Law Commission, Centre for Studies and Research of the Hague Academy of International Law, International State Liability (1982), Selective Bibliography prepared by the Library of the Peace Palace.
2. Stockholm Declaration on the Human Environment of the United Nations Conference on the Human Environment, 16 June 1972, 11 I.L.M. 1416 (1972) (hereinafter Stockholm Declaration).
3. See generally The Human Dimensions of Global Change: An International Programme on Human Interactions with the Earth, Report of the Tokyo International Symposium on the Human Response to Global Change, Tokyo, Japan, 19-22 Sept. 1988.
4. For a discussion of the work of the International Law Commission and the conceptual issues raised by the topic of "International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law." see generally Daniel Barstow Magraw, "Transboundary Harm: The international Law Commission's Study of 'International Liability,'" 80 A.J.l.L. 305 (1986).
5. Brownlie, supra note 1 at 50.
6. Introductory Document Prepared by the Italian Government for the Forum on International Law of the Environment, Siena, 17-21 April 1990, 53 (Rome, January 1990), hereinafter cited as Siena Forum.
7. Siena Forum, supra note 6 at 53.
8. Trail Smelter Arbitration (U.S. v. Can.) 1941, 11 Mar. 1941, 3 R.l.A.A. 1905 (1949).
9. Lake Lanoux Arbitration (Spain v. France) 1957 - I.L.R. 101 (1957).
10. Gut Dam Arbitration (U.S. v. Can.) 22 Sept. 1968, Report of the Agent of the United States before the Lake Ontario Claims Tribunal, 8 I.L.M. 118 (1969). The compromise of 25 May 1965 establishing the tribunal is found at T.l.A.S. No. 6114 (1965). See also the Agreement on the Settlement of Claims Relating to Gut Dam, 18 Nov. 1968, 6 U.S.T. 7863 (1968), T.l.A.S. No. 6624 (1968).
11. Restatement (Third), The Foreign Relations Law of the United States (1987), at 109-110 (hereinafter Restatement).
12. Trail Smelter Arbitration, supra note 8 at 1965.
13. Corfu Channel Case (U.K. v. Alb.) 1949, I.C.J. 4 (Judgment of 9 April 1949).
14. Restatement, supra note 11 at 100- 101.
15. Id. at 109-110.
16. Report of the United Nations Conference on the Human Environment, U.N. Doc. A/ CONF. 48/14, Rev. 1, 3, 5 (1973). See also Stockholm Declaration, supra note 2.
17. Canada, Claim against the USSR for Damage Caused by Soviet Cosmos 954, Notes of 23 Jan. 1979 and 15 Mar. 1979, 18 I.L.M. 899 (1979). Canada-USSR. Protocol on Settlement of Canada's Claim for Damages Caused by Cosmos 954, 20 I.L.M. 689 (1981). The Canadian Claim was based on the convention on International Liability for Damage Caused by Space Objects, 29 Mar. 1972, 24 U.S.T. 2389, T.l.A.S. No. 7762, and on general principles of international law.
18. European Economic Community, Declaration on the Environmental Action Programme, 22 Nov. 1973, 13 I.L.M. 164 (1974).
19. Convention on Long-Range Transboundary Air Pollution, 13 Nov. 1979, 18 I.L.M. 1442 (1979), T.l.A.S. No. 10541 (1979).
20. 1985 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution, on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at Least 30 Per Cent, 8 July 1985, 27 I.L.M. 707 (1985).
21. IAEA Convention on Early Notification of a Nuclear Accident, 26 Sept. 1986.25 I.L.M. 1370 (1986); IAEA Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency, 26 Sept. 1986, 25 l.L.M. 1377 (1986).
22. Siena Forum, supra note 6 at 54.
23. United Nations Convention on the Law of the Sea, 10 Dec. 1982. 21 I.L.M. 1261 (1982) (hereinafter Law of the Sea Convention).
24. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 18 May 1977, 16 I.L.M. 88. 31 U.S.T. 333, T.l.A.S. No. 9614 (1977) (hereinafter Enmod Convention).
25. Vienna Convention for the Protection of the Ozone Layer, 22 Mar. 1985, 26 I.L.M. 1529 (1987)
26. Montreal Protocol on Substances That Deplete the Ozone Layer, 16 Sept. 1987, 26 I.L.M. 1550 (1987).
27. Siena Forum, supra note 6 at 54-55.
28. Restatement, supra note 11 at 99.
29. See IMO Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. 29 Dec. 1912, 2 U.S.T. 2403, T.l.A.S. No. 8165 (1972) (hereinafter Dumping Convention); London International Convention for the Prevention of Pollution from Ships, MARPOL, 2 Nov. 1973, 12 I.L.M. 1319 (1973).
30. Law of the Sea Convention, supra note 23 at Part Xll.
31. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 Mar. 1989, 28 I.L M. 657 (1989) (hereinafter Basel Convention).
32. Restatement, supra note 11 at 107.
33. Id. at 100 citing the opinion of Judge Lauterpacht in Oppenheim, International Law, 346 47 (8th ea., 1955).
34. Siena Forum, supra note 6 at 57.
35. Id., citing Law of the Sea, supra note 23 at Articles 235(1), 263(3), 304(139).
36. Enmod Convention, supra note 24 at Article 1.
37. Convention on International Liability for Damage Caused by Space Objects' 29 Mar. 1972, 24 U.S.T. 2389, T.l.A.S. No. 7762, 66 A.J.I.L. 702 (1972), Article 11. See also Siena Forum, supra note 6 at 57.
38. It should be noted that in some cases due diligence has been separated from fault, thus amounting in itself to the breach of a primary obligation regardless of fault; this means that the first level of responsibility has become more stringent as well.
39. Siena Forum, supra note 6 at 57.
40. Restatement, supra note 11 at 113.
41. See supra note 17.
42. Patmos case, Messina Court of Appeals, 1989 (cited in Siena Forum, supra note 6 at 60).
43. Wellington Convention on the Regulation of Antarctic Mineral Resource Activities. 2 June 1988, 27 I.L.M. 868 (1988) (hereinafter CRAMRA).
44. Siena Forum, supra note 6 at 60-61.
45. International Law Commission, Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, U.N. Doc. A/CN. 4/360 and Corr. 1 (1982); Schematic Outline, sect. 1, Art. 1, in conjunction with "Fourth Report," U.N. Doc. A/CN. 41373 and Corr. I (1983), at 29.
46. Restatement, supra note 11 at 113.
48. Siena Forum, supra note 6 at 63.
49. Barcelona Traction, Light and Power Co., Ltd., 1970. I.C.J. 4.
50. Siena Forum, supra note 6 at 65.
51. Id. at 66.
52. Restatement, supra note 11 at 104, 121.
53. Id. at 113.
54. Id. at 106. For a comment on the Bhopal accident and related views on the export of dangerous industries, see Magraw, supra note 4 at 325.
55. See supra note 32 and accompanying text.
56. Restatement, supra note 11 at 114-115.
57. Supra note 21.
58. The World Bank and the Environment, First Annual Report, 1990.
59. Restatement, supra note 11 at 118-119.
60. Clean Water Act, 33 U.S.C. §§1251-1376. 61. Clean Air Act, 42 U.S.C. §§7401-7642.
62. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S. §9601.
63. U.S. National Environmental Policy Act of 1969, 42 U.S.C. §§4321, 4332.
64. Executive Order 12114 on Environmental Effects Abroad of Major Federal Actions, 4 Jan. 1979, 44 F.F. 1957, 3C.F.R., 1979 Comp. 356.
65. See Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 647 F. 2d 1345, 1348, 1377 (D.C.Cir. 1981); Restatement, supra note 11 at 120.
66. 31 U.N. GAOR Supp. (No. 10) Report of the Int'l. L. Comm. Art. 19(3)(d) at 226, U.N. Doc. A/31/10 (1976).
67. See supra note 44 and accompanying text.
68. See Brownlie, supra note I at 50.
69. "Fourth Report." supra note 45 at 29.
70. "Third Report," supra note 45 at 16.
71. Magraw, supra note 4 at 330. 72. See supra note 15 and accompanying text.
73. Schematic Outline. supra note 45 at Art. 3
74. Restatement, supra note 11 at 122-123 (with particular reference to the U.S. case-law).
75. See, e.g., CRAMRA, supra note 43.
76. Restatement, supra note 11 at 121-123.
77. Id. at 121.
78. Brussels International Convention on Civil Liability for Oil Pollution Damage, 29 Nov. 1969, 9 I.L.M. 45 (1969).
79 Brussels International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 18 Dec. 1971, 11 1. L. M. 284 (1972).
80. See the Protocols to the Conventions cit., supra notes 78, 79, 19 Nov. 1976 16 I.L.M. 617, 621 (1976).
81. Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 Jul. 1960, 55 A.J.I.L. 1082 (1960), Brussels Supplementary Convention, 31 Jan. 1963. 2 I.l.M. 685 (1963)
82. Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 2 I.L.M. 727 (1963).
83. Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP), 7 Jan. 1969, 8 1. L. M. 497 (1969).
84. Oil Companies Offshore Pollution Liability Agreement (OPOL), 4 Sept. 1974, 13 I.L.M. 1409 (1974)
85. Oil Companies: Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL), 14 Jan. 1971, 10 I.L.M. 137 (1971).
86. Siena Forum, supra note 6 at 77.
87. Id. at 78, 79.
88. Id. at 78.
89. See Basel Convention, supra note 31.
90. Siena Forum, supra note 6 at 79.
91. Id. at 81-82.
92. Id. at 82.
93. In Re Union Carbide Corp. Gas Plant Disaster 809 F 2d 195 (2nd Cir., 1987).
94. In Re Oil Spill of 'Amoco Cadiz" 699 F 2d 909 (17th Cir. 1983).
95. For recent developments relating to transboundary pollution cases, see A.C. Kiss, "La reparation pour atteinte a l'environnement," 23e Colloque de la Société Française pour le Droit International, "La Responsabilité dans le système international", Le Mans, 31 Mai-2 Juin 1990.
96. Restatement, supra note 11 at 124.
97. Id. at 124-12h.
99. A Canadian corporation involved in drilling for oil [D the Beaufort Sea, on the Canadian side of the boundary, was required to post a $20 million bond to secure compensation to potential U.S. pollution victims, in addition to the Canadian government subsidiary liability, as provided for in a special arrangement with the United States. See generally Restatement, supra note 11 at 125; Handl, "State Liability for Accidental Transnational Environmental Damage by Private Persons," 74 A.J.I.L. 525 (1980), at 547-548.
100. Organization for Economic Cooperation and Development (OECD), Recommendation of the Council for the Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, 17 May 1977, 16 I.L M. 977 (1977).
101. Law of the Sea Convention, supra note 23 at Art. 194(2).
102. Id. at Art. I (1)(4).
103. See supra note 29 and accompanying text.
104. Law of the Sea Convention, supra note 23 at Art. 221.
105. Restatement, supra note 11 at 130-131.
106. Law of the Sea Convention, supra note 23 at Part XII, Section 6.
107. Restatement, supra note 11 at 137.
108. Brussels Convention on the Liability of Operators of Nuclear Ships, 25 May 1962, 57 A.J.I.L. 268 (1963).
109. International Convention on Civil Liability for Oil Pollution Damage, 29 Nov. 1969, 9 I.L.M. 45 (1970).
110. Restatement, supra note 11 at 141.
111. Id. See also the 1976 and 1984 Protocols to the 1969 Convention; 16 I.L.M. 617 (1977), 13 Envt'l Pol'y & L., 66 (1984).
112. See supra note 78, and 1976 and 1984 Protocols: 16 I.L.M. 621 (1977), 13 Envt't Pol'y & L., 61 (1984).
113. See supra notes 83, 85.
114. Brussels International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 26 U.S.T. 765, T.l.A.S. No. 8068, Art. 6.
115. Restatement, supra note 11 at 137, 142.
116. CRAMRA, supra note 43. See generally Laura Pineschi, "The Antarctic Treaty System and General Rules of International Environmental Law," International Law for Antarctica, 187 (Francioni, Scovazzi, eds., 1987).
117. CRAMRA, supra note 43 at Art. 4.
118. CRAMRA, supra note 43 at Art. 8(1).
119. Id. at Art. 8(2).
120. Id. al Art. 8(4), (6)
121. Id. at Art. 8(3).
122. Id. at Art. 8(7).
123. Id. at Art. 8(10).
124. "Antarctic Treaty, Recommendation XV-I on Comprehensive Measures for the Protection of the Antarctic Environment and Dependent and Associated Ecosystems," Handbook of the Antarctic Treaty System, October 1990, at 2103. The preparation of a draft Convention on the matter was undertaken by the Xlth Antarctic Treaty Special Consultative Meeting, the first session of which was held in Viña del Mar, Chile, 19 Nov.-6 Dec. 1 990.
125. For a discussion on recent proposals for the international governance of the environment, see generally Peter S. Thacher, "Institutional Options for Management of the Global Environment and Commons," United Nations Associations Project on Global Security and Risk Management, 1989.
126. Peter H. Sand, "Institutions for Global Change: Whither Environmental Governance?", Fifth Talloires Seminar on International Environmental Issues, 14-18 May 1989.
127. Laura Pineschi, "La valutazione di impatto ambientale e il diritto internazionale del mare," 3 Rivista Giuridica dell'Ambiente, 505 (198P,).
128. See generally United Nations General Assembly, "Report of the Preparatory Committee for the United Nations Conference on Environment and Development," A/45/46, 17 Oct. 1990.
129. See generally the discussion of this point in P.M. Dupuy, 'Action publique et crime international de l'Etat, à propos de ['Article 19 du projet de la Commission du Droit International sur la responsabilité des Etats," A.F.D.I. 539 (1979).
130. For a discussion of these proposals, see Paul C. Szasz, "The Role of International Law: Formulating International Legal Instruments and Creating International Institutions," Research Workshop on Managing the Global Commons, Knoxville, Tennessee, 1-4 Aug. 1989, at 14.
131. Edith Brown Weiss, "Our Rights and Obligations to Future Generations for the Environment," 84 A.J.I. L. (1990)
132. Szasz, supra note 130 at 9-11.
133. Edith Brown Weiss, "Legal Dimensions of Global Change: A Proposed Research Agenda," 121 International Social Science Journal, 399 (1989), at 403-404.
134. The establishment of an International Environmental Law Commission under Article 13 of the United Nations Charter was suggested at the United Nations University Workshop on International Law and Global Change. the Hague. 8-10 Nov. 1989, for which see the Report of the Co-ordinator, Edith Brown Weiss, at 4
135. Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973, reprinted in S. Lyster, International Wildlife Law, 239 (1985).
136. See the Dumping Convention, supra note 29; Basel Convention. supra note 31.
137. Sand, supra note 126 at 17-18.
138. Szasz, supra note 130 at 8-9.
139. Sand, supra note 126 at 18-22.
140. See supra note 79.
141. UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 Nov. 1972, 11 I.L.M. 1358 (1972), art. 15.
142. Brown Weiss, supra note 133 at 405.
143. CRAMRA, supra note 43 at Art. 8(7).
144. "The Changing Atmosphere: Implications for Global Security," Conference Statement, Toronto, 30 June 1988, proposing the "World Atmosphere Fund" and other Trust Funds; see generally Thacher, supra note 125 at 57.
145. Brown Weiss, supra note 133 at 405.
147. Sand, supra note 126 at 19, n. 36.
148. Brown Weiss, supra note 133 at 406. 149. Thacher, supra note 125 at 57-60.
6. Law and global environmental management: some open issues
point of departure
International preventive norms and mechanisms
Compensatory remedies: gaps and trends in international law
Enforcement: deterrence: incentives and disincentives
The point of departure
The considerations presented in this chapter have had the benefit of two trial runs. One, in 1989 and 1990, was a post-graduate seminar offered in the International Law Department of the University of São Paulo. The second was a paper contributed to a reflection and publication on development economics and the environment, involving and addressed primarily to a group of distinguished economists.1 In either case the subject included not only the natural environment geosphere and biosphere, tangible and intangible values, and rational resource management - but also the well-being of society as such, and consequently its protection against future Bhopals and Sevesos, as well as against ecological disasters of the Amoco Cadiz or Exxon Valdez type. And in both instances "law" was seen as encompassing a complex, interactive system of substantive, procedural, and institutional norms, ranging from domestic law - private and public, civil and penal - to international law governing relations among states. The non-severability of national and international law has various reasons; in the first place, of course, the fact that many or most environmental phenomena transcend national boundaries; secondly, both national and international law in that area are conditioned by the same concepts and pressures; thirdly, however, and as will be discussed below, it must be kept in mind that the application and enforcement of international law depends to a large extent on national implementation measures, i.e. on domestic legislation.
The message that emerged from the São Paulo seminar was that while law was an essential policy tool, efficiency, efficacy, and equity of environmental management could not be achieved simply by legislation and by recourse to traditional legal concepts - certainly not the Manicheistic "right" and "wrong" norms customary in civil and criminal law. It called instead for a balancing of many different interests intersecting in space and in time - economic interests, but also aesthetic and moral ones, and the interests of future generations that had thus to be given a value, weighed against each other, and ultimately reconciled with some semblance of equity in the context of a system in which processes and institutions were as important, and perhaps more so, than absolute norms. The message to the economists, on the other hand, was that while economic considerations were essential for the design and operation of such a system, economists should not let themselves be carried away by econometric constructs based on data so soft, and so unreliable, that they would at best justify simple, common-sense working hypotheses to guide policy formulation and management.
In fact, the uncertainties and lack of knowledge - with regard to environmental phenomena - causal links other than in terms of probabilities; nature and extent of effects remote in time and space, direct or indirect, and so on - constitute the major problem confronting lawyers as well as economists. Certainty and predictability are fundamental prerequisites for the operation of tort and penal law - the two main instruments used in the past to deal with environmental harm and the interference with community interests. Related to the problem of uncertainty is the fact that while up to the middle of this century environmental problems were (or were at least perceived as being) essentially local, and confined to the private sphere of individuals or, where states were involved, to contiguous border zones and international water bodies, the special reach of many new environmental risks has become global, or "planetary," just as their time-frame is now clearly transgenerational, involving more often than not the probability of irreversible, irreparable harm.
The emergence of these new environmental risks had profound implications for the legal system in the sphere of both public and private law. It entailed new demands on the state, its administrative apparatus and civil society, and a new set of duties and rights governing relations between states. Most importantly, it called for a fundamental reassessment of tort law and, ultimately, the shift of emphasis from traditional compensatory remedies to a system of preventive norms coupled with more purposeful enforcement measures.
At a national level statutory changes occurred quite rapidly, essentially in the course of the past four decades:2 public opinion and pressures from a structured civil society obviously accelerated the legislative process. At the international level, positive law developed more slowly, but the same pressures of public opinion generated an impressive body of "soft law" that may not be executory per se, but clearly points the way to the new norms and processes expected to govern the international community and, in some instances, were recognized as customary law3 or translated into binding bilateral or multilateral compacts in a process much more dynamic and purposeful than the traditional meandering from doctrine to ad hoc conflict resolution to commissions of learned jurists and eventually treaty law. Indeed, the importance of "soft law" - Stockholm, Brundtland, OECD declarations and resolutions, and directives such as those of the European Economic Community - cannot be underrated in the genesis of a new international law of the environment.
The changes in domestic tort law and its compensatory remedies did, in fact, reach back to the last century, when traditional concepts had to be adjusted as the risks of harmful interference increased with the industrial revolution and subsequent technological progress. Most notably, the standards of care underlying tort liability (or liability for abuse of rights) were thus more sharply and strictly defined, to the point of generalizing the concept of "no-fault" or objective liability for activities considered inherently hazardous, or at least creating a presumption of fault or negligence whenever damage occurred, and expanding the concept of "product liability." Except for the latter, this trend is clearly confirmed in the post-World War II legislation and conventions on liability for nuclear damage,4 which generally provide for objective, though limited, liability channelled to one responsible entity and backed by insurance and/or the subsidiary responsibility of the state.
A similar hardening has occurred in the course of this century in the law related to the responsibility of states. This was derived mainly from the concept of abuse of rights, or from the precept of good neighbourhood, as articulated in a series of jurisprudential pronouncements starting with the Trail Smelter arbitration,5 as well as in treaties generally concerning transboundary environmental harm in narrowly defined border areas or international water bodies.6
In today's perspective, however, it is generally recognized that this is not enough. Even if reinforced by the concept of objective liability, tort law (or its equivalent in inter-state relations) no longer constitutes an adequate bulwark against the environmental risks to which mankind, including future generations, is now exposed. There are several basic reasons for this.
In the first place, tort remedies are designed to operate where a clearly definable damage to property, patrimonial rights, or the personal integrity of identifiable victims can be traced to a clearly defined external source; the element of fault or negligence has, as noted earlier, lost its importance where inherently hazardous activities are involved. On the other hand, much of today's environmental harm or potential environmental harm - is diffuse in time and in space, involving cumulative sources. It can affect a multiplicity of victims-often across national boundaries - and tends to touch not, or not only, on the property or physical-integrity sphere of individuals but on community interests, i.e. on what is called the "commons" - global or local. In many instances, damage may manifest itself decades or generations after the event. This means, of course, that it will often be difficult to determine the damage, to identify the victims and potential victims, and to establish- and prove - the causal link upon which tort remedies are by necessity predicated. Lastly, it must be expected that where large-scale environmental damage is involved, the persons (or entities) responsible for it may not have the resources to compensate the victims.
Some legislative improvements are of course possible to overcome these shortcomings. Beyond the introduction of no-fault liability, periods of prescription can be extended, insurance coverage or other guarantees can be required for hazardous activities, procedural mechanisms can be adjusted to facilitate collective actions and to make the courts accessible to foreign claimants in the event of transboundary damage; funds can be established for future victims and latent damage, and risks - or excess risks - can be socialized by the intervention of the state as a guarantor. As already noted, nuclear liability legislation and treaty law have innovated in many of these areas, demonstrating how far traditional legal concepts and mechanisms can be stretched to meet large-scale environmental hazards. So has recent jurisprudence concerning coastal pollution by major accidental oil spills and, with some limitations, in the Bhopal and other large-scale industrial accidents.
The fact remains, however, that legal norms designed essentially to provide compensation are, by themselves, a rather inept tool where the damage is potentially irreversible and irreparable and surrounded by uncertainties with regard to causes and effects, as is the case for many of today's environmental risks. Compensatory liability may be a deterrent, of course, and thus an effective disincentive, and it may provide some immediate relief - a pecuniary liniment - to victims of many environmental accidents. But no more than that.
Recognizing the limits inherent in the tort law approach, the emphasis of the legislator - national as well as international - has shifted from compensation after the event to prevention, i.e., from civil liability to the imposition and enforcement of positive duties intended to prevent the occurrence of harm. At the national level, this takes the form of licensing or approval mechanisms, generic prohibitions, and a variety of regulations linked to specific technical norms and standards applicable to dangerous substances or activities. Re cent legislative schemes tend to include a specific obligation to assess potential risks (risk assessment) and to notify the persons concerned.
Similar preventive schemes involving positive duties, prohibitions, technical norms, and supervisory mechanisms are emerging also at the international level - bilateral, regional, or global: it is significant that even Trail Smelter, generally remembered as the main precedent for the obligation of states to provide compensation for environmental damage caused beyond its boundaries, placed even greater emphasis on the preventive norms and control mechanisms under the bilateral US-Canadian treaty relating to the Great Lakes.7
Today the pressure for such international preventive schemes based on the application of technical safety norms has outgrown the bilateral stage and calls for action at the global or at least regional level. This reflects a growing awareness that environmental risks transcend geographic contiguities and often affect humanity as a whole. However, the pressure for global schemes and global compliance derives also from considerations of economic self-interest, in the sense that countries applying strict environmental standards would be at a disadvantage in international trade when competing with countries that did not observe such norms. This motivation was and remains evident in the EEC efforts toward a common environmental policy and environmental standards.
International preventive norms and mechanisms
While the preventive schemes emerging at multilateral levels whether regional, subregional, or global - are still to a large extent in the nature of "soft" law, their basic concept follows the approach of national legislation: generically formulated obligations ("framework" norms); absolute or conditional prohibitions; requirement of prior authorization and creation of the corresponding regulatory and supervisory mechanisms, as well as technical norms setting qualitative and quantitative standards; special organs charged with environmental policy formulation or coordination, monitoring, and control; statutory provisions calling for the prior assessment of environmental impact, the notification of risks, as well as emergency plans and damage-containment schemes for high-risk activities; direct community involvement in policy formulation and environmental management, information of the public, etc.
The difference between national and multilateral schemes is, of course, that the international community and its organs have no power of coercion other than through public opinion, boycotts, or retaliation and the very limited scope of compulsory international jurisdiction; nor are there at that level -except in limited regional contexts - any standing legislative bodies, budget authorities, and, consequently, budgetary allocations sufficient to implement and enforce serious environmental policy. It follows from this that unlike their counterparts in domestic law (or in EEC decisions), preventive treaty-norms cannot be executory, but take the form of explicit duties of the contracting states to regulate, supervise, monitor, legislate on matters such as liability for damage, provide access to courts, etc. Implementation and enforcement remain the responsibility of each state concerned.
There are nevertheless some basic issues common to both national and international law. One of them has become particularly visible in the current global-warming debate - as it was, in the 1960s, with regard to nuclear hazards, and in particular the disposal of radioactive waste: should the legislator, when facing substantial uncertainties with regard to the potential hazard of particular activities, assume the worst and prohibit an activity (or regulate it, setting rigorous safety standards for it) unless its harmlessness has been proved, or should prohibitions and strict standards be adopted only when the hazard has been clearly demonstrated, at least in terms of probabilities? While the standards of care implicit in strict tort liability, and, in international law, the Ozone Layer Convention and Montreal Protocol8 denote a cautious, pessimistic approach, there continue to be strong pressures in the opposite direction in current international negotiations.
A second perplexity, also reflecting the wide area of uncertainty characteristic of environmental phenomena, concerns the formulation of technical norms, and in particular the qualitative and quantitative criteria underlying safety standards. At the national level, these are often left to schedules or ad hoc determinations by regulatory agencies. With the exception of regional bodies such as the European Economic Commission, such a delegation of regulatory powers seems at present rather utopian in an international setting. Instead, treaty law tends to relegate technical norms, schedules, or standards to annexes or protocols with a limited duration, or provision for their revision - periodically or not - under procedures less cumbersome than the negotiation of the treaties themselves.
In connection with international technical norms, the question has been raised as to whether more lenient standards (or more gradual timetables for their adoption) should apply to developing countries. While such double standards may be an attractive political expedient, one wonders whether it would not be preferable for the international community to provide direct financial support for the introduction of environment-friendly technologies in such countries, the more so as the adoption of double standards might, in the long run, condemn developing countries to chronic technological obsolescence.
There are a few other issues specific to international preventive schemes relating to the environment and the corresponding duties of states that deserve special comment.
One set of issues concerns the duty of states to provide for adequate compensation and a forum for environmental-damage claims, without discrimination based on the nationality or residence of the claimants. The Paris and Vienna nuclear liability conventions9 stipulate specific norms on this subject, as does the convention on damage caused by objects in space (which, unlike the Paris and Vienna conventions, provides for the direct responsibility of the state) and, indirectly, the convention on the establishment of an indemnity fund for pollution damage. Most other treaties, however, like the UN Convention on the Law of the Sea, have opted for a generic clause calling upon member states to legislate, ensuring adequate compensation and a forum, but without specifying the nature of the remedies and guarantees involved. Significantly, efforts of the European Economic Commission to touch upon this subject in the context of its post-Seveso directive have so far met with considerable resistance no doubt because a rethinking of liability rules with a view to their harmonization and modernization would - and should - affect diverging doctrinal conceptions of tort law, and perhaps also powerful economic interests.
A second issue concerns the settlement of disputes. Most international compacts relating to environmental subjects contain traditional conciliation and arbitration clauses; the UN Convention on the Law of the Sea, however, provides for a special tribunal competent also for issues relating to pollution."' In the perspective of a global compact on the environment, the question has been raised as to whether there should be a special international court for environmental disputes, or whether the International Court of Justice - perhaps sitting in special chambers - could not be given jurisdiction -preferably compulsory jurisdiction - over them. There is no doubt that this would constitute an important step toward enforceable international environmental law; on the other hand, experience shows that it is not easy to negotiate compulsory jurisdictional schemes in an international community still obsessed with the concept of sovereignty. It might be more realistic, as a first step - and would correspond to a priority need given the uncertainties that surround environmental phenomena - to settle for an international body of experts charged with the elucidation of issues of fact underlying environmental disputes, without entering into the legal consequences that might ensue.
Thirdly, many treaties and draft treaties dealing with the environment stipulate a general obligation of states to collaborate (whether or not in the context of a particular intergovernmental organization or programme) with regard to research, monitoring, supervision, and the development of international law. In some instances, this is reflected in the "plans of action" appended to hortatory instruments such as the Stockholm Declaration and its subsequent endorsement by the UN General Assembly." These clauses or plans of action do not, by themselves, entail very concrete obligations, but would evidently gain in significance in the perspective of a future strengthening of intergovernmental institutions - sectoral or general charged with environmental matters.
A further clause postulated in environmental treaty law concerns the commitment to allow the free flow of information on environment-friendly technologies, particularly for the benefit of developing countries. It must be expected, however, that before becoming positive law, this concept - possibly in the form of compulsory licensing with no (or only nominal) royalties - will involve tough negotiations, insofar as environment-friendly (or depolluting) technological innovations are generally the subject of proprietary rights (patents; industrial secrets) of powerful industrial groups in developed countries.
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