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10. The Antarctic environment: developing a comprehensive regime for responsibility and liability
Concern for the protection of the Antarctic environment has resulted in major developments of the Law of State Responsibility, especially the specific issue of liability. These developments are particularly evident in the Convention on the Regulation of Antarctic Mineral Resource Activities.116 This Convention is based on very stringent principles and requirements for the protection of the environment, which is a noteworthy development in itself, however the more important development is that no mineral resource activity shall take place until it is judged that it is environmentally safe under those stringent standards.117 The emphasis on prevention thus becomes quite evident.
Observance of the Convention is to be enforced by States Parties and the regulatory committees through a combination of measures that include monetary penalties. Enforcement can lead to the modification, suspension, and cancellation of the pertinent management scheme, which in essence embodies the terms of the contract and provides authorization to engage in mineral activities.
Beyond the general measures, however, there are very specific rules dealing with responsibility and liability, some of which are highly innovative. The salient features of these rules are summarized as follows:
1. An operator involved in mineral resource activity, including prospecting, exploration, and development, has the obligation to take necessary and timely response action, with particular reference to prevention, containment, clean-up, and removal measures, if the activity results or threatens to result in damage to the Antarctic environment or dependent and associated ecosystems.118 The geographical scope and the definition of damage included in this Convention are very broad. The emphasis on preventive measures is again apparent. It should also be noted that here the responsibility is an unconditional type, not subject to limitations and other defensive factors.
2. If damage ensues in spite of the above measures, the operator is subject to a system of strict liability. The operator is liable for damage to the Antarctic environment and related ecosystems, loss or impairment of an established use, loss or damage to property of a third party, loss of life or personal injury of a third party, and reimbursement of reasonable costs to whomever has undertaken the response action.119 The operator may also be liable for damages and other consequences not arising directly from these activities, in which case liability shall be governed by the applicable national or international law and procedures. It is interesting to note that these rules protect the Antarctic environment as such, irrespective of damage to property or life.
3. The regime relating to strict liability, unlike that which governs the responsibility of the operator, is subject to some conditions of relief for the operator, such as a natural disaster of an exceptional character, armed conflict and terrorism, or an intentional or grossly negligent act or omission by the party seeking redress.120
4. The sponsoring state has subsidiary liability in conjunction with that of the operator if the damage would not have occurred or continued if such state had carried out its obligations under the Convention.121 These obligations are different for prospecting and for exploration and development, but in either event they may engage subsidiary liability to the extent the harm is not satisfied by the operator or otherwise. This is without prejudice to the application of international law to other types of damage engaging state liability. Thus we have an interesting case in which the activity of an operator may indirectly engage state responsibility and liability, in addition to the obligations that the Convention bestows upon the state directly.
5. Some specific aspects of this regime have been left open for additional negotiation by means of a Protocol to the Convention.122 These open issues refer only to the liability provisions and not to those on responsibility explained under (1) above. One such issue concerns limits on liability: such limits do not refer to a curtailment of the obligation to pay full compensation, but only to the establishment of a ceiling on the portion to be paid by the operator in order to facilitate insurance; the balance would be paid by other mechanisms or by the state. Another mechanism to satisfy liability is the establishment of a compensation fund similar to that relating to oil-pollution damage. In addition, other means to assist with immediate-response action will have to be decided in the pending negotiations. Procedures and mechanisms for the adjudication of claims will also have to be worked out and will likely be of an international character.
6. Pending the entry into force of the Protocol referred to above, prospecting, unlike exploration and development, can be undertaken but each Party shall ensure the availability of recourse in its national courts for the adjudication of liability claims against the sponsored operator.123 There is no provision here for actions against the state itself. The Commission established by the Convention shall be able to appear as a party in such procedures. These provisions coincide with the trend to provide access to national courts for remedial measures arising under international activities.
This set of important principles and mechanisms have been incorporated into the discussions of a comprehensive regime for environmental protection in Antarctica, in addition to their operation specifically in relation to mineral activities.124 The comprehensive regime has also favourably considered an environmental-impact-assessment procedure and an early-warning notification obligation.
11. The new law of state responsibility: improvement and caution
The present discussion about the global environment does not proceed in a vacuum, rather it is closely related to the evolution of environmental concerns throughout the century and consequently to the state of international environmental law. The question that remains to be answered is whether the evolution that has been described meets the requirements of global environmental problems, and if not, then to what extent further developments should be introduced in the applicable international law.
From the discussion so far it is clear that international law is not as obsolete as has been supposed by some authors since it has shown a remarkable capacity to adapt in response to new situations and concerns. Furthermore, a number of its approaches and rules - even among the most traditional - are of interest for the solutions required in the new dimension of environmental concerns. But there are of course also important shortcomings. The major issues in this context will be discussed next.
Sovereignty and international cooperation
It is obvious that solutions for global environmental questions require increased international cooperation, both regionally and globally. International law has long subjugated national sovereignty to this end, particularly in the environmental field. In this regard there are no major conceptual difficulties. A different proposition altogether is that which advocates the virtual elimination of national sovereignty in this field;125 however, neither international law nor the political will of states is quite ready for this radical step. The expanding scope of international environmental law is the best evidence of the progress made by international cooperation.
Sources of global environmental law
Concern has been repeatedly expressed that as a source of environmental law, treaties are inadequate in view of the time lags between signature and entry into force, the occasional need to adopt national implementing legislation, and above all that consensus or unanimity in their negotiation often results in the lowest common denominator substantively.126 While this criticism is valid to a large extent, it overlooks the important fact that most of the basic principles of modern environmental law have emerged not so much from treaties but from case-law, general principles of law, declarations of principles, and customary law.
Thus there is great flexibility as to the sources of the law that may be used to fashion new approaches, such as the development of general principles, adoption of declarations, preparation of a framework convention to be supplemented by means of protocols and other agreements, or the recourse to regulatory instruments adopted by international institutions that might be established. The limit to this flexibility is not related to the form of the various legal instruments but to their substantive policy content, which must be generally acceptable to states, economic agents, and public opinion, in both the developed and the developing world.
A new basic legal principle
As a result of the evolution of international law a new basic legal principle can today be identified: the acceptance in state practice of responsibility for environmental damage. This means in fact that there is a legal obligation not to degrade the environment. However difficult it might be to put this principle into operation, the fact is that it has already been established under international law and a number of domestic legal systems.
A number of new corollary obligations have gradually been attached to this principle: the duty to notify and consult, the need to obtain prior consent of other states for given activities, state responsibility for given activities of private operators, and development of early-warning mechanisms and environmental-impact assessments.127 Most of these obligations are preventive, thus responding to the new emphasis of international law on this point. The fact that many of these obligations operate only in the context of specific treaties or subject matters does not alter the trend toward a more generalized application. In the course of this evolution it is quite probable that additional obligations will emerge, such as information sharing, forecasting, and monitoring.
These are the bases on which the primary rules have been developing at a rapid pace. It is unlikely, however, that a comprehensive agreement dealing with all aspects of the environment will be achieved in the short or medium term, unless it were of a very general nature and built on successive compromises, which could well de feat its original purpose.128 It is more likely that the law will continue to develop piecemeal within the context of specific areas or issues; however, the cumulative effect of such developments represents significant progress across the board.
Developing the law of state responsibility
In addition to the role played by traditional rules of state responsibility, new conceptual and normative approaches have been developed, a number of which attend specifically to the needs of environmental protection. A first major development is that due diligence is no longer equated with fault, such that now failure to observe due diligence will amount to a violation of the substantive obligation under primary rules and hence engage responsibility regardless of fault. An important consequence of this development is that it will often provide the basis of responsibility for the activity of private operators.
A second fundamental development is related to the effect of strict liability: in addition to delinking responsibility from fault, it goes one step further in that it may also engage responsibility in spite of due diligence having been observed. Precisely because of this very innovative characteristic, strict liability is only found today in specific conventional regimes, but it could well become generalized in the future.
A third major area of development relates to state liability for acts not prohibited by international law, which is the natural outgrowth of the developments just described. Here responsibility is delinked from the traditional requirement of international law that the act be unlawful in nature. It is not difficult to foresee that this approach will be gradually and increasingly applied to environmental questions.
A fourth area of important development concerns the question of damage. As mentioned above, one point of view holds that damage is no longer a constitutive element of responsibility, there being damage implicit in the violation of the primary obligation. Certainly damage need not be of an economic nature. The environment thus becomes a protected value on its own merits and eventually damage will not need to be proved. The net result is that the operation of responsibility or liability becomes very efficient as compared to traditional standards.
Extending the protection of the affected interest
Obligations erga omnes are beginning to emerge in the environmental field and might even become the basis of a rule of jus cogens. This latter development, however, will take some time to materialize. Similarly, the effort to typify an international crime does not meet with general approval today.129 There have been proposals for declaring environmental harm a delicta juris gentium, like piracy, and even to establish some form of international criminal court to deal with the matter,130 but this is not quite a realistic or feasible approach. The concept of actio popularis as such will also take time and it is not currently favoured by international law. However, a number of steps are being taken to facilitate claims, particularly in terms of equal access to domestic courts and related issues. Problems such as concurrent claims, the intervention of international institutions, the distribution of compensation, and others will be solved without much difficulty on the basis of precedents or technical rules. The following additional developments could be encouraged to make the operation of responsibility and liability more timely and effective:
- Assign responsibility and liability directly to the operator in given activities, as is evident in the Antarctic minerals regime.
- Require subsidiary state liability when the private operator cannot meet its obligations.
- Establish unlimited liability for given activities, while allowing for limited liability in relation to each basic component or segment: for example, the operator, the insurance company, special funds, and the state.
- Enlarge limits of liability presently affecting international funds or other potential sources of compensation.
- Introduce "product liability" to extend responsibility to the ultimate source of harm.
- Require environmental assessment in project financing or other major actions.
- Develop insurance and financial guarantees such as environmental bond posting.
- Develop appropriate rules on jurisdiction so as to easily identify and have recourse to the competent forum, with particular emphasis on the establishment of international claims commissions.
- Eliminate the requirement of exhausting local remedies in given situations or emergencies.
- Abolish immunity from legal process.
- Develop shared liability schemes among private operators.
-Establish liability for wrongful enforcement measures.
- Expand the definitions of pollution and environmental damage to include large ecosystems.
- Develop alternative methods of compensation for when the entity involved in environmental damage obtains relief on the ground of natural disaster or other exceptional circumstances.
New directions of the law
In one way or the other, examples of all of the above can be found in contemporary international law and the related domestic legal developments. Thus the critical step is not to design new concepts or mechanisms, but rather to ensure a more generalized application of such rules beyond the conventional regimes that have established them. This may be accomplished either by enacting additional or more comprehensive regimes or by developing general principles of law and customary international law.
There are, however, new conceptual developments and specific measures that are only beginning to enter the domain of international law or have only limited precedent in the law related to environmental protection.131 The three most important new concepts in international environmental law are those related to intergenerational equity, the relationship with human rights, and the security dimension of environmental protection. All three are at the very heart of the preventive emphasis that international law has assumed.
The broader conceptual framework that has evolved is leading to the discussion of new types of measures or approaches:
- Inspection, verification, and enforcement are becoming the keys to successful compliance with the law, more so than the ex post facto sanction of responsibility and liability. In all these matters international law is most experienced.
- Early-warning systems are being increasingly recognized as an effective mechanism for prevention and minimizing damage to the environment.
- Monitoring of the environment is also an increasingly accepted approach since it provides appropriate information for triggering the warning steps and, eventually, emergency responses.132 However, monitoring involves the danger of encroaching upon legitimate decisions or actions appertaining to national sovereignty and thus requires very balanced implementation. To this end international cooperation can be harmonized with national monitoring. In addition, cooperative arrangements and plans can easily be developed for monitoring common spaces and extended to planetary monitoring systems.
- Assistance in the field of environmental protection is beginning to develop as a new type of measure. In part this approach relates to technical assistance and emergency assistance, including the establishment of appropriate international centres. However, assistance also relates in part to the major problem of industrial reconversion and its enormous costs. In this last dimension it is basically a problem of financial assistance.
- The role of scientific advisory bodies is being enhanced in the context of these new developments and is particularly relevant as to warning, monitoring, and delivering assistance.133 Since this approach was used in the Trail Smelter case, it has been repeatedly applied to numerous conservation and environmental regimes. Beyond any doubt this role will continue to develop. In addition, useful suggestions have been made for the establishment of similar expert bodies in international environmental law.134
- Recourse to scientific bodies also relates to the concern that environmental regimes be adapted and updated in light of new scientific knowledge and experience. Adaptation by means of protocols, annexes, and other procedures is also an expression of this concern.
- Licensing in accordance with environmental criteria has been applied in a few regimes, such as endangered species135 and dumping of wastes.136 Suggestions are being advanced to establish an international licensing system much broader in nature and extent.137 Controlling individual private corporations by means of this environmental regulatory mechanism has also been suggested.138 While Justified in very specific circumstances, this approach should be used with the greatest of caution since it could well lead to some "world environmental governance" scheme that would not only run counter to national sovereignty concerns but also impinge on the freedom of private enterprise and market economies that characterize the world today.
- International auditing procedures based on reporting by states has also been suggested as a kind of preventive measure, following the model of the International Labour Organisation and human rights regimes.139 Failure to comply with the agreed standards could trigger a process of economic or legal sanctions, including the request of an injunction from a judicial organ. It should be noted, however, that sanctions of this type have never been successful in international law. Thus it may be more effective to rely either on the preventive mechanisms outlined above, including compliance and enforcement, or on the traditional sanction of international law requiring payment of compensation.
- Establishing international funds for the payment of compensation is another of the major trends of the law in this field. This approach can also help meet the new requirements of intergenerational equity. The limited experience with existing funds shows that there is a trend to relax the limits of compensation and other restrictions originally envisaged. In addition to an oil-pollution fund,140 the World Heritage Fund,141 and the trust funds established by UNEP for the marine environment,142 there are a number of proposals for extending the practice to other areas: the Antarctic minerals regime,143 the World Atmosphere Fund proposed by the 1988 Toronto Conference,144 the control of carbon dioxide emissions, and the maritime carriage of certain substances.145
Existing international funds are normally financed by means of contributions. By contrast, a number of national funds are being financed by levies on the pertinent activities: 36 states in the United States have established funds for contingencies related to hazardous wastes financed by those generating the waste or storing jt,146 and France applies an air-pollution charge for certain emissions of sulphur dioxide.147 Other funds rely on severance taxes on coal, oil and gas, minerals, and timber.148 Relying on this experience, some have proposed that the World Atmosphere Fund be partly financed by a levy on fossil-fuel consumption and that other funds should apply levies on emissions of greenhouse gases, movement of tropical timber, and other related activities.149 Here again the greatest caution should be used for the same reasons explained above.
12. Avoiding environmental degradation and opposing the world ecological government: a conclusion
The conclusion that emerges from all of the foregoing is that the law of state responsibility, including its aspects relating specifically to liability, is not at all inefficient or ineffective in the environmental field. The state of international law has evolved rapidly. As a result, the basic conceptual instruments and rules necessary to deal with the new requirements of environmental protection are available. These include both the traditional restoration and compensation mechanisms for when harm has ensued and the new emphasis on preventive measures. The state's conduct is governed by a large number of primary rules, while secondary rules are being perfected and extended to induce compliance and safeguard the environment.
A number of new approaches are being suggested in order to meet the needs of global environmental change. Conceptual innovation is rapidly influencing the new thinking of international law on the matter. Among the specific mechanisms that have been proposed, some are useful and reasonable and some are not. The former will no doubt lead in the short and medium term to the development of new rules of international law, a number of which are already in the process of formation; the latter will probably lack the necessary consensus.
In this, like in any other matter, international law responds with a difficult process of harmonization of interests. Concern for the environment is one interest in which the interests of states and humankind as a whole coincide. This is not true, however, with respect to the specific policies and rules that could be enacted and enforced. While for a number of industrialized countries environmental considerations are a top priority, for many developing countries the priority lies in production and economic performance. Very strict environmental standards in the former often contrast with ideas such as "debt-for -nature" swaps that are prevalent in the latter. Convergence of views will take time and effort.
Because international law relies on the harmonization of interests it tends to avoid extreme solutions. In this regard it can be expected that international law will not allow environmental degradation and will develop the necessary rules and institutions to ensure this fundamental obligation. But it can also be expected that it will not favour a kind of world ecological government that might subject states, individuals, and corporations to a highly regulated discipline contrary to sovereignty, freedom, or economic efficiency. To the extent that such a vision underlies some of the proposals being advanced, they are unlikely to be adopted.