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5. Emerging principles and rules of prevention and mitigation
Norms, principles, and rules of international environmental law have evolved, particularly since the 1972 Stockholm Declaration on Human Environment, to address problems of global environmental change. In the following paragraphs, an attempt is made to clarify the newly emerging principles and rules of prevention and litigation.13
(A) The principle of a common interest of humankind
As discussed in section 3 supra, global environmental change is not only a matter of concern among discrete states, i.e., "acting" states and "affected" states, but is a matter of concern to the entire international community. indeed it can be said to be a common concern of humankind. There is a general recognition that humankind has common interests in protecting and managing the climate system, the ozone layer, the rain forests, and biological diversity for both present and future generations. It is also recognized that these common interests are superior to those of the individual states and total more than merely their sum (see, e.g., Professor Kiss, infra). international instruments incorporate this recognition in specific fields of environmental protection. For instance, Resolution 43/53 of the UN General Assembly recognizes that climate change is a common concern of mankind.14 The 1972 Convention for the Protection of the World Cultural and Natural Heritage considers in the preamble that "deterioration or disappearance of any item of the cultural and natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world" and that "parts of the cultural and natural heritage... need to be preserved as part of the world heritage of mankind as a whole" and that "it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value." It then recognizes in Article 4 the duty of the Contracting Parties to ensure "the identifications, protection, conservation, presentation, and transmission to future generations of the cultural and natural heritage." The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora recognizes in the preamble that "wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come." A Draft Convention on the Conservation and Sustainable Use of Biological Diversity,15 prepared by FAO on 11 June 1990, stipulates that the states are guardians to conserve biological diversity. It provides in Article 2 that
"[T]he Parties accept as fundamental principle that biological diversity is a heritage of humankind and, where located within the limits of national jurisdiction, is under the sovereignty of the states where it is located. States have the duty of guardianship of biological diversity, in time and space."
It is noteworthy that, although the protection of the atmosphere and climate, cultural and natural heritage, and endangered species are under the jurisdiction of the sovereign states where they are located, the states are additionally under international obligations to protect and conserve these resources for the benefit of present and future generations. These natural or cultural resources are regarded as international or global common16 whose uses are limited by a common interest of mankind. The states are regarded as guardians or custodians of the international community.17 It should also be noted that some newly emerging pollution-control rules, such as those concerning CFC and halon phase-out measures and potentially carbon dioxide reduction measures and conservation rules of global natural or cultural heritage are and will be based upon this general recognition of a common interest of humankind.
The high seas, the deep seabed, the moon, and their respective resources are located beyond the boundaries of natural jurisdictions. Their uses are open to every nation of the world and they are regarded as international or global commons; the deep seabed, the moon, and their resources are especially regarded as the common heritage of humankind18. The common heritage of humankind is under the stewardship of the international community as a whole and must be managed by existing and future international regimes.
Implementation of the principles and rules of prevention and mitigation under the auspices of international institutions and agencies is one of the characteristics of international environmental law. It is common that multilateral treaties that stipulate newly emerging principles and rules of prevention and mitigation provide for an institutional framework - such as an Executive Body, a Conference or Meeting of the Parties, and a Secretariat - to implement the objectives of the treaties on the basis of a general obligation to cooperate. Such principles and rules are discussed infra in more detail.
(B) The principle of cooperation in scientific research, systematic observations, and assistance
Because of scientific uncertainty regarding environmental change, the Contracting Parties usually promise as a first step in agreements to cooperate in scientific research to identify the nature and the extent of problems. The principle of cooperation in scientific research and in systematic observations is widely used in international instruments for confronting global environmental change. Cooperation helps the Contracting Parties determine future specific control measures in any particular situation by helping to provide them with increasing scientific knowledge and expertise. It is often much easier for the Contracting Parties to agree upon cooperation in scientific research than to take specific control measures.
One of the recent developments in the principle of cooperation is the role played by international institutions and agencies through which the Contracting Parties cooperate for scientific research and systematic observations, environmental monitoring, and the collection, validation, and transmission of scientific data. International institutions and agencies also assist developing states with scientific research and systematic observations through financial arrangements. These developments facilitate scientific research, help generate comparable or standardized observational and monitoring instrumentation and methods, and foster worldwide reliable scientific data that are the prerequisites for international action to cope with global environmental change.
The 1982 UN Convention on the Law of the sea is a good example. Part XII of the Convention contains provisions on protection and preservation of the marine environment. Article 200 provides that states cooperate, directly or through competent international organizations, to promote studies and undertake programmes of scientific research. Article 204 provides that the parties endeavour, directly or indirectly or through competent international organizations, to observe, measure, evaluate, and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. States also agreed in Article 202 to promote, directly or through competent international organizations, programmes of scientific, educational, technical, and other assistance to developing states for the protection and preservation of the marine environment, and the prevention, reduction, and control of marine pollution.
The Vienna Convention for the Protection of the Ozone Layer is another example. The Contracting Parties agreed in Article 3 to initiate and cooperate in, directly or through competent international bodies, the conduct of research and scientific assessments on such issues as the physical and chemical processes that affect the ozone layer and on alternative substances and technologies. They also agreed to promote or establish, directly or through competent international bodies, joint or complementary programmes for systematic observations of the state of the ozone layer and other relevant parameters. Furthermore, they agreed to cooperate, directly or through competent international bodies, in ensuring the collection, validation, and transmission of research and observational data through appropriate world-data centres in a regular and timely fashion. Article 4(2) provides that the Parties cooperate to promote, directly or through competent international bodies, the transfer of technology and knowledge to the developing countries, and Annex I of the Convention provides that the Parties cooperate to promote, directly or through competent international bodies, appropriate scientific and technical training, taking into account their particular needs.
In addition to funds directed towards compensating states damaged by pollution or environmental disasters, there are some funds used for conserving natural and cultural heritage, and for protecting the marine environment and the atmosphere. Funds function as a supporting mechanism for the principles of prevention and mitigation.
The 1972 Convention for the Protection of the World Cultural and Natural Heritage established the World Heritage Fund; it is financed by the Parties. The Fund is used for assisting the Parties, upon their request, in conserving properties listed on the World Heritage List.
UNEP administers two types of trust funds, general trust funds and technical cooperation trust funds,19 both funded by member states. The main purpose of the funds is to provide member states with financial support for the protection of the marine environment of six regional seas and other specified technical cooperations.
The Second Meeting of the Parties to the Montreal Protocol in London in June 1990 set up a Multilateral Fund financed by contributions from developed Parties (i.e., Parties not operating under Paragraph 1 of Article 5), the contributions being calculated on the basis of the United Nations scale of assessments.20 The Fund covers all agreed-upon incremental costs, including the transfer of technology, of the developing Parties (i.e., Parties operating under Paragraph 1 of Article 5) to enable their compliance with the control measures of the Protocol. According to Article 5 of the Protocol, developing Parties are entitled to delay their compliance with the control measures by 10 years.21 The Multilateral Fund may well be an important paradigm for the prevention and mediation of climate change.
(C) The principle of exchange of information
Pertinent scientific, technical, socio-economic, business, commercial, and legal information are prerequisites for the implementation of international concerted actions to prevent or mitigate environmental harm arising from global environmental change. The Parties to international instruments cooperate both individually and jointly to exchange such information through international institutions; in fact, information can be more easily exchanged and disseminated to all the Parties if they are supplied to international bodies. There are two types of information exchange: information exchange upon request of the states and periodic information dissemination by international bodies (the latter being the other side of the coin of periodical information supplied to international bodies).
The Vienna Convention is a noteworthy example of the latter. In accordance with Article 4, the Parties should provide scientific, technical, socio-economic, commercial, and legal information as further elaborated in Annex II to (international) bodies agreed upon by the Parties. The bodies then disseminate such information to any requesting Parties. Articles 200 and 204 of the UN Convention on the Law of the Sea adhere to the same principle.
Information exchange raises questions of confidentiality - which information is regarded as confidential and by whom? Most international instruments provide that any information regarded as confidential by the supplying state should not be disclosed by the receiving body. The principle of information exchange is governed by national laws and regulations and practices regarding patents, trade secrets, and the protection of confidential and proprietary information.22 However, it is important that more information be made open to foster international concerted actions to cope with future global environmental change common to the international community- some international standards need to be formulated to clarify confidentiality issues in this regard.
(D) Principles of prior notice, environmental impact assessment, and consultation
These principles help to prevent disputes from arising in the transfrontier pollution context between the "acting" state(s) and the "affected" state(s) by providing the "affected" state with pertinent information of the planned activities of the "acting" state and with chances to reach an amicable solution to the potential problem between them. The so-called Montreal Rules of International Law Applicable to Transfrontier Pollution adopted by the International Law Association at the sixtieth conference23 include these principles in Articles 7 and 8:
Article 7 (Prior Notice)
1. States planning to carry out activities which might entail a significant risk of transfrontier pollution shall give early notice to States likely to be affected. In particular, they shall on their own initiative or upon request of the potentially affected States, communicate such pertinent information as will permit the recipient to make an assessment of the probable effects of the planned activities.
2. In order to appraise whether a planned activity implies a significant risk of transfrontier pollution, States should make environmental assessments before carrying out such activities.
Article 8 (Consultations)
1. Upon request of a potentially affected State, the State furnishing the information should enter into consultations on transfrontier pollution prob lems connected with the planned activities and pursue such consultations in good faith and over a reasonable period of time.
2. States are under an obligation to enter into consultations whenever transfrontier pollution problems arise in connection with the equitable utilization of a shared natural resource as envisaged in Art. 5.
The Montreal Rules link procedures of prior notice, environmental assessment, and consultations in a systematic way.
As indicated in Principle 11 of the Principles of Environmental Impact Assessment adopted by the 14th Governing Council of UNEP in July 1987,24 it will become necessary for states to conclude bilateral, regional, or multilateral arrangements by providing for notification, exchange of information, and agreed-upon consultation on the potential environmental effect of planned activities under their jurisdiction or control that are likely to significantly affect other states or areas beyond their national jurisdiction.
Some brief comments are in order regarding environmental assessment and consultations. The environmental assessment can be used to decide whether planned activities will or will not lead to a breach of substantive legal obligations incumbent upon states to prevent unlawful transfrontier pollution, and if they are to be specified in legal instruments.25 In comparison, consultation means something more than notification, but less than consent.26 Consultation does not require agreement with the "affected" state(s) but it does take into account that state's(s') views or recommendations. Consultation is thus a preliminary stage to negotiation; however, negotiation implies a more sustained effort to reach an agreement than does consultation.27
The Montreal Rules will not alone suffice to prepare for and remedy global environmental change. It is necessary for a competent international body to intervene on behalf of the international community as a whole in the decision-making processes of planned activities that may significantly affect the global environment.
The Meeting Statement adopted in February 1989 by legal and policy experts from every continent of the world includes elements to be addressed in any framework "umbrella" convention on protection of the atmosphere28 and provides for an innovative approach. According to the principles of prior notice and environmental impact assessment adopted in the Meeting Statement, when a state has reasonable grounds to believe that planned activities under its jurisdiction or control may cause an atmospheric interferences outside its jurisdiction, it shall give timely notice of such planned activities to the competent international organization (and to the other states concerned), make an assessment of the potential effects of such activities, and on its own initiative or upon request of the competent international organization (or of the other states concerned), provide such relevant information as will permit the competent international organization (or the other states concerned) to make an assessment of the probable effects of the planned activities. The Meeting Statement made a clear distinction between the protection of the atmosphere and protection of the climate, and advised to delete texts between brackets for the purposes of an instrument on climate protection.
The Meeting Statement also included the principle of consultation, according to which consultations shall be held upon request at an early stage between both the competent international organization and states concerned and between the international organization and the states under whose jurisdiction or control activities that require prior notice are planned.
These principles embodied in the Meeting Statement are newly emerging and are applicable to global environmental change, a threat that entails extended effects upon the majority of members of the international community. It is necessary for international institutions, with full expertise, to participate in consensus-making processes.
(E) The principle of risk assessment, warning, and emergency assistance
In coping with environmental disasters, such as nuclear accidents and oil spills, it is necessary to have made a prior risk assessment to the states concerned and to competent international organization(s) and to provide emergency assistance to the affected states.30 A plausible approach to emergency situations was proposed in the 1989 Ottawa Meeting Statement. According to the Statement:
When a State becomes aware of an emergency situation or other change of circumstances arising from incidents or activities under its jurisdiction or control and suddenly giving rise to an atmospheric interference or significant risk thereof causing or likely to cause harm in an area under the jurisdiction of another State or in an area beyond the limits of national jurisdiction, it shall immediately take appropriate measure, to control the cause of the emergency situation and immediately notify other States affected or likely to be affected by such an atmospheric interference, as well as the competent international organization.
Other approaches are included in the two 1986 IAEA Conventions, the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. The former says that in the event of nuclear accident the state Party shall notify, directly or through IAEA, affected states or states likely to be affected by the accident and provide them, directly or through IAEA, with relevant information specified in Article 5. In contrast, the latter provides that when a state Party is in need of assistance in the event of such an accident, it can call for such assistance from any other state Party, directly or through IAEA, and from IAEA or other IGO - such accident need not originate within the territory, jurisdiction, or control of the requesting state.
6. Toward an international management of global environmental change
The Vienna Convention, the Montreal Protocol, and recent amendments to the Protocol provide a prototype of international environmental management of the atmosphere that may be called "international governance."31
Regarding the protection of the ozone layer, international institutions established by international instruments perform three functions -standard-setting, licensing, and auditing. Once an initial standard of consumption reduction of a controlled substance is established by the Contracting Parties to the Protocol, the Conference of the Parties (a kind of international institution affiliated with the Secretariat) makes a review of the control measures. A licence or permit to emit the controlled substances may be granted. Treaty compliance is then audited by the same body. The Second Meeting of the Parties to the Montreal Protocol adopted, on an interim basis, procedures for determining non-compliance with the provisions of the Protocol and the institutional mechanism for the treatment of Parties held to be in non-compliance.32 According to the decision, the Implementation Committee is established to receive, consider, and report on any submission made by Parties who have reservations regarding another Party's implementation of its obligations under the Protocol.
"international governance" also applies in the climate-change context. The Contracting Parties to a framework Convention on Climate Change and associated Protocols will agree on an international ambient standard for greenhouse gases such as carbon dioxide and will allocate emission limitations among the Contracting Parties to meet the ambient standard.33 Such allocation is to be calculated on the basis of such factors as the population or gross national product of the states. Each Contracting Party will implement its allocated standard at the national level. At present, developing countries are exempt from complying with limitations on emissions because of the time-lag in their development. An international institution, such as the Conference of the Parties, will later review an international ambient standard and consequent emission limitations.
Monitoring is essential for this type of international management of the atmosphere. An international system can be devised to annually monitor the production of and the export and import of fossil fuels. However, monitoring of greenhouse gases other than carbon dioxide seems extremely difficult. Perhaps non-compliance mechanisms can be modeled after the ozone-layer precedents.
1. See the definition of pollution, e.g.. A.L. Springer. The International Law of Pollution: Protecting the Global Environment in a World of Sovereign States, 65-78 (Quorum Books, 1983). Organization for Economic Cooperation and Development. Recommendation (77)28.
2. 3 U.N.R. Intl. Arb. Awards, 1911 (1941).
3. Declaration of the United Nations Conference on the Human Environment, 16 June 1972.
11 I.L.M. 1416, 1420.
4. A C. Kiss, Survey of Current Developments in International Environmental Law, 141 (published with the assistance of the Fund for Environmental Studies [by the] IUCN. 1976); A.C Kiss, Droit International de L'Environnement, 349 (A. Pedone, 1989); A. L. Levin, Protecting the Human Environment: Procedures and Principles for Preventing and Resolving International Controversies, 131 (UN Institute for Training and Research, 1977).
5. See, e.g., Paris Convention on Third Party Liability in the Field of Nuclear Energy. 29 July 1960, 55 A.J.I.L. 1082; Convention on the Liability of Operators of Nuclear Ships and Optional Protocol, 25 May 1962, 57 A.J.I.L. 268; the Convention on Civil Liability for Nuclear Damage, 21 May 1963, 2 I.L.M. 727; Convention on the Civil Liability for Oil Pollution Damage, 29 Nov. 1969, 9 I.L.M. 25.
6. For specific treaties and conventions embodying these principles, see supra note 4.
7. The forty-third session of the UN General Assembly recognized in Resolution 43!53 that climate change is a common concern of humankind, since climate is an essential condition that sustains life on earth.
8. E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity 385 (Transnational/United Nations University, 1989).
9. D.M. Johnston, 'Systemic Environmental Damage: The Challenge to International Law and Organization," 12 Syracuse Journal of International Law and Commerce, 257 (1985): P.S. Thacher, "International Agreements and Cooperation in Environmental Conservation and Resource Management" (a paper prepared for the Workshop on Managing the Global Commons: Decision Making and Conflict Resolution in Response to Climate Change. I Aug. 1989), p. 5.
10. Johnston, supra note 9 at 269. 11. Id. at 271.
12 See, e.g., R.E. Benedick, "Lessons from the Ozone Hole," 16 EPA Journal, 43 (1990).
13. For an overall discussion on
international legal response to global environmental change,
see E. Brown Weiss, "Legal Dimensions of Global
Change: A Proposed Research Agenda," International Social
Science Journal (August 1989).
14. See supra note 7.
15. This draft was prepared at the working level by members of the FAO Legal Office and the FAO Working Group on Biological Diversity.
16. See discussion in O. Schacter, Sharing the World's Resources. 172 (Columbia University. 1977).
17. E. Brown Weiss, "The Planetary Trust: Conservation and Intergenerational Equity," 11 Ecology Law Quarterly, 495 (1984).
18. The UN Convention on the Law of the Sea, 10 Dec. 1982, Art. 136, 21 I.L.M. 1261, 1293; the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. 5 Dec. 1979, Article 11, 18 I.L.M. 1434, 1438-1439.
19. Management of Trust Funds: Report of the Executive Director. UNEP/GC.14/23, 18 May 1987.
20. UNEP/OzL. Pro. 2. 2/L/4 Rev. 1; UNEP/OzL. Pro. 2/L/5/ Rev.1; UNEP/OzL. Pro. 2/L/6.
21. Such provision can be legally justified by the theory of the compensation of potential opportunity costs incurred by developing countries. See G. Handl, "International Efforts to Protect the Global Atmosphere: A Case of Too Little, Too Late?", I European Journal o International Law, 256 (1990).
22. See, e.g., Vienna Convention for the Protection of the Ozone Layer, 22 Mar. 1985, Art. 4, 261. L. M. 1529, 1530-1531.
23. International Law Association, "Rules of International Law Applicable to Transtrontier Pollution," Report of {he 60th Conference, 171-176 (International Law Association, 1982).
24. See documents in 17 Environmental Policy and Law, 36-37 (February 1987).
25. World Commission on Environment and Development, Environmental Protection and Sustainable Development: Legal Principles and Recommendations, 103 (Graham & Trotman, 1987).
26. F.L. Kirgis, Jr., Prior Consultation in International Law, 11 (Univ. Press of Va., 19X3).
27. Supra note 23 at 11.
28. Meeting Statement of International Meeting of Legal and Policy Experts on the Protection of the Atmosphere, 20-22 Feb. 1989, Ottawa, Canada. This conference was a follow-up conference of The Changing Atmosphere: Implications for Global Security, held in Toronto in 1988.
29. According to the Meeting Statement, 'atmospheric interference" means any change in the physical or chemical condition of the atmosphere resulting directly or indirectly from human activities and producing effects of such a nature as to appreciably endanger human health, harm living resources, ecosystems. and material property, impair amenities or interfere with other legitimate uses of the environment.
30. For the international legal framework for coping with emergency disasters, see Bruha, "lnternationale Regelungen zum Schutz vor technisch-industriellen Umweltnotfallen," 44 Zeitschrifr für ausländisches üffentliches Recht and Völkerrecht, 1-63 (1984).
31. N. Myers. "Environmental Challenges: More Government or Better Governance?", 17 AMBIO, 411-414 (1988).
32. UNEP/OzL. Pro. 2/L.1; UNEP/OzL. Pro. 2/L.S/Rev.1.
33. E. Brown Weiss, 'A Resource Management Approach to Carbon Dioxide during the Century of Transition." in World Climate Change: The Role of International Law and Institutions 181 (V. Nanda. ea.. Westview Press, 1983).
1. The evolving law of state responsibility
2. New environmental realities and their
impact upon the law
3. Conceptual developments and the new basic
principle of international law
4. The expanding scope of the law: global
reach and international cooperation
5. Material changes in the law of state
responsibility
6. Expanding the protection of the affected
interests
7. Liability for acts not prohibited by
international law: the ongoing debate
8. The expanding role of practice:
substantive and procedural developments
9. The protection of the marine environment:
a leading case of innovation
10. The Antarctic environment: developing a
comprehensive regime for responsibility and liability
11. The new law of state responsibility:
improvement and caution
12. Avoiding environmental degradation and
opposing the world ecological government: a conclusion
Notes
Francisco Orrego Vicuñna
1. The evolving law of state responsibility
The Law of State Responsibility1 emerged in the international legal order as a concept basically meant to operate in an ex post facto manner and has generally followed the characteristics of the law of torts in domestic legal systems. The very idea of injury on which this aspect of the law was based assumed that an unhappy event had already taken place before the operation of responsibility. The restrictive nature of this body of law was further revealed by the requirement of a causal link between the injury and an official act or omission attributable to the state in question. In addition, the doctrine only applied when such an act or omission was wrongful, that is, contrary to a precise obligation under international conventional or customary law. This was not always easy to establish, particularly in view of the vagueness that has occasionally accompanied the consolidation of a rule of law in the international order.
Rationae materiae, the Law of State Responsibility was conceived in a limited manner. It initially protected personal rights and later evolved to protect economic rights of nationals of other states. Given the limited scope of international relations at the time of these legal developments, it was quite natural that the law would cover only those aspects in which contacts among nations were more frequent, and hence where conflicts were most likely to arise.
In this context it is hardly surprising that the remedies attached to the operation of responsibility were equally of a limited value. In essence, remedies purported to lead to restitutio in integrum where at all possible through compensation or other forms of reparation. Unilateral or anticipatory remedial action has never been favoured in international law in view of the risk of abuse involved, which has meant an even more limited availability of remedies. Needless to say, procedural arrangements have in general been slow and drawn out.
None of the above detracts from the useful role of State Responsibility under international law and the manner in which it has helped to solve many disputes among states and redress the rights of individuals that may have been affected by unlawful acts or omissions. In spite of its many shortcomings, the law specifically applicable to international claims, including those related to property and other economic rights, bears witness to the important developments and improvements that have taken place in this field.
The primary problem affecting the operation of the Law of State Responsibility is that since this body of law became consolidated in the early part of the century, the nature and extent of international relations have dramatically changed. Occasional international interactions among individuals have given way to a global economy. Rights that might have been considered as appertaining to foreign nationals are today a part of the law of human rights applicable to all without distinction. Distant events that previously escaped attention because they did not fall within the domain of exclusive national jurisdiction are today the concern of humankind as a whole. Industrialization, resource exploitation, and development have prompted environmental effects of a global nature that were unknown in the past.
Most of these changes have had an impact on the Law of State Responsibility, both in terms of its material content and its procedural arrangements. The law has not been static and has not remained frozen in time; it has evolved significantly, albeit not in every respect. Many of the responses to the violation of economic rights of individuals, or more broadly, the protection of human rights, are the re suit of the evolution of the Law of State Responsibility. 1 his evolution has led to new conceptual insights, introduced a greater degree of flexibility in its operation, and allowed for new and more effective remedial measures.
This chapter examines specifically the changing conditions arising from the need to ensure adequate environmental protection in the international domain, and the impact this has had on the Law of State Responsibility. It is through this perspective that one can best realize to what extent there has been an evolution in this body of law and to what extent some of its prevailing shortcomings still remain.
2. New environmental realities and their impact upon the law
The experience gathered in environmental studies and the design of action plans and other means for the protection of the global environment show that things have generally worsened rather than improved. Since the 1972 Stockholm Conference,2 which served of course as a landmark in the growing awareness of the international community on the matter, the environmental impacts flowing from major disasters or simply from the magnitude of industrial operations have grown considerably. In this regard, the many plans and organizations that have emerged since then cannot generally be viewed as an example of success.
Three conclusions are particularly worth retaining from this experience because they represent a broad consensus of opinion among most authors: (1) the problems of the global environment are becoming more serious as their risks and consequences become better understood, while at the same time it is increasingly difficult to pinpoint a single source of such problems and attach a causative link to a given agent, private or public, national or transnational; (2) growing lead times are usually needed to take preventive or corrective action; and (3) some of these impacts may become irreversible if left unchecked.3
These three basic premises have had a profound impact on the nature and extent of the Law of State Responsibility and the corresponding developments in the specific field of liability, both domestic and international. Because they are based on a broad consensus in the international community, these conclusions are becoming reflected in the body of international law through gradual responses to the new needs. There are of course other aspects that have not attained that same degree of consensus and that on occasion have been objected to. These other aspects are presently mere policy suggestions that cannot form the basis for consolidation as a rule of law.
While the scientific conclusions mentioned above pertain to the consensual category, a number of ideological issues prompted by the debate on the environment do not. This dichotomy explains both the opportunities and the limits facing the development of the Law of State Responsibility and related matters as applied to the environment. In particular, it highlights the differing views about the scope of the basic principles, rules, and institutions necessary to address global environmental change.
3. Conceptual developments and the new basic principle of international law
The work of the International Law Commission, learned societies, and distinguished writers of international law have greatly clarified the conceptual framework governing this particular area of the law. First, a useful distinction has emerged that separates international "responsibility" from international "liability," the former arises from unlawful acts while the latter has come to encompass both lawful and unlawful activities. The idea of state liability for acts not prohibited by international law has also emerged in this context.4
This distinction has not passed unchallenged. Brownlie has made the argument that the normal principles of state responsibility can well sustain liability, particularly as it concerns extra-hazardous operations.5 In this context the critical issue is the content of the rules and not the distinction between lawful and unlawful activities, especially since either way leads to reparation and compensation. In practice, however, this distinction is gaining ground in several treaty regimes, although it is also true that a number of legal consequences are attached to given activities resulting in damage irrespective of their lawful or unlawful character.
A second conceptual development serves as a useful analytical tool: the distinction between "primary" and "secondary" rules. The former relate to obligations, the breach of which may lead to responsibility, while the latter relate to the legal consequences of failure to comply with the obligations arising from the primary rules. Secondary rules are those specifically dealing with the issue of responsibility and liability, although these issues cannot always actually be separated from the operation of the primary rules.
The important document prepared by the Italian government on the international law of the environment6 indicates that in practice one can observe significant developments in the treaty rules dealing with the environment (the primary rules), but not a parallel evolution in the rules on responsibility, which are either non-existent or overly general in those regimes. The result is that the secondary rules lag behind those developed in the primary level.
In spite of these shortcomings, practice shows the acceptance of a general principle of responsibility for environmental damage caused by activities within state jurisdiction or control.7 While this principle is generally accepted, it would not seem that the International Law Commission approach of regarding its violation as an international crime meets with general approval. The existence of a principle of international law embodying the obligation not to degrade the environment is further reinforced by the new conceptual approaches influencing the development of the law in this field, namely the concepts of intergenerational equity, human rights, and environmental security.