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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part II International Responsibility—Development and Relation with Other Laws, Ch.10 Liability for Injurious Consequences of Acts Not Prohibited by International Law

Alan Boyle

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 06 December 2019

Subject(s):
Responsibility of states — Responsibility of international organizations — Damages — Exhaustion of local remedies — UNCLOS (UN Convention on the Law of the Sea)

(p. 95) Chapter 10  Liability for Injurious Consequences of Acts Not Prohibited by International Law

The development of the topic

The ILC’s involvement with this improbably-titled topic arose out of its deliberations on the law of State responsibility and requires some explanation in order to understand its subsequent tortured history. The word ‘tortured’ is used advisedly, this being one of the most laboured and confusing studies the ILC has ever undertaken.

Having defined the law of State responsibility as applying only to the breach by a State of its international obligations, it was then thought necessary to cater separately for harm caused without breach of obligation.1 The ILC preferred to use the term ‘liability’, rather than ‘responsibility’, to cover such cases because it believed that liability arose as a primary obligation, unlike responsibility, which concerned only the secondary obligations consequential on the breach of a primary obligation.

In principle there was nothing wrong with this distinction, but the ILC went on to assume that there could be responsibility for harmful activities only if these were prohibited, whereas liability would arise only in respect of non-prohibited or ‘lawful’ activities. Much of the early work on the topic deals with conceptual issues of this kind and, in the view of many commentators, was based on a fundamentally confused view that no other body trying to develop the law in this field seemed to share.2 In effect, the ILC appeared (p. 96) to believe that no primary obligations of protection from transboundary harm existed: it seemed unable to grasp that international law might, as in Part XII of the 1982 UN Convention on the Law of the Sea, impose obligations of regulation, diligent control, and prevention of harm even on lawful activities without either prohibiting the activity or excluding the possibility of responsibility for breach. Even in 1978 the ILC’s view of the law seemed extraordinary.

Although environmental harm was regarded from the outset as providing one example of this form of liability, the ILC initially saw the topic in broader terms.3 It was suggested at first that economic damage, arising for example on the devaluation of another State’s currency, fell within the topic. Liability was also thought to arise when harm was caused in breach of obligation but the wrongdoing State had a defence, such as necessity, which precluded responsibility. Once the difficulty of including all these categories in a single topic was appreciated, the ILC quickly decided to concentrate on the one area for which some precedents seemed to exist: transboundary harm to persons or property in or to the environment of another State.4 Even then there continued to be differences of opinion on whether the topic should cover only liability or also deal with prevention of harm and risk avoidance. It remained unclear whether activities which caused transboundary harm were or were not prohibited in international law. Nor was it clear that the cases and precedents on which the Special Rapporteurs sought to rely really did support a concept of liability for acts not prohibited by international law rather than responsibility for breach of obligation. Not surprisingly, the ILC remained uncertain about the title, content and scope of the topic. Although the first two Special Rapporteurs delivered 17 reports up to 1995, and a set of 33 draft articles was proposed in 1990 (18 of which were provisionally adopted in 1994 and 1995), the inherent problems remained unresolved and the Sixth Committee of the General Assembly continued to have great difficulty with the topic.

In 1996, the ILC appointed another working group to reconsider the topic. This group quickly produced 22 proposed articles in what might be described as a desperate act of synthesis.5 There were three elements in this draft: prevention, co-operation, and strict liability for damage. The articles on liability for damage were conceived as an integral element of the overall scheme for accommodating the conflicting interests of neighbouring States on an equitable basis, but they were avowedly more in the character of progressive development than codification, and proved too controversial. Although the ILC found the 1996 articles to be ‘a substantial advance’ on previous work, it was nonetheless decided to divide the topic into two parts and deal separately with prevention of harm and liability for harm. A new Special Rapporteur was appointed to deal with the first of these sub-topics; further work on liability would follow later. It took only one report from the new Special Rapporteur to enable the ILC to adopt draft articles at its 1998 session in New York and refer (p. 97) them to governments for comment.6 The Amended Articles on the Prevention of Transboundary Harm from Hazardous Activities were finally adopted by the ILC in 2001, and recommended to the UN General Assembly.7

The Draft Articles adopted in 2001 thus brought to an end the first phase of the project which had begun in 1978. They codify only the legal framework for regulation and management of activities which pose a risk of transboundary harm. There is little in them of relevance to liability, except for a non-discrimination principle which governs transboundary access to ‘judicial or other procedures’ for preventive remedies and redress (draft article 15) and a savings clause for obligations under other treaties or customary international law (draft article 18).

Certain governments and some members of the ILC believed, and continue to believe, that liability has been adequately dealt with in the ILC’s Articles on State Responsibility.8 Nevertheless, in 2001, largely at the behest of developing States, the General Assembly requested the ILC to resume work on liability, ‘bearing in mind the interrelationship between prevention and liability, and taking into account the developments in international law and comments by Governments’.9 Faced with an express request from the General Assembly, however unwelcome, the ILC had little choice but to agree to reinstate the topic on its agenda in 2002. The ILC proceeded quickly and in 2004 a set of draft Principles was adopted and sent to States for consultation;10 these were finally adopted in 2006 in the form of ‘Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities’.11

The essential elements of the ILC scheme can be summarized as:

(i)  prompt, adequate and effective compensation for victims of transboundary damage, broadly defined;

(ii)  no-fault liability of the operator or ‘where appropriate’ some other person or entity, supported where necessary by additional compensation funding; and

(iii)  response measures to mitigate or eliminate transboundary damage.12

If they prove acceptable, the ILC’s Principles may establish for the first time a genuinely global regime of liability for transboundary damage. Although not confined to environmental claims, these are likely to constitute the most significant category covered by the draft Principles.

(p. 98) A rationale for liability principles?

Why should the ILC address the question of liability for transboundary damage and why is its concluded work on State responsibility not sufficient for this purpose? There are at least two answers. First, it is far from clear that States are fully responsible in international law for damage to neighbouring States. Transboundary damage resulting from the activities of industry or business will not in normal circumstances be attributable to the State in international law. State responsibility will usually be based on breach of an obligation of due diligence in the regulation and control of potentially harmful activities. This will not cover damage resulting from events that are either unforeseeable or unavoidable.13 Accidents may happen however diligent the State has been. In these circumstances the State is not at fault and the loss will lie where it falls.

Secondly, even where a State is potentially responsible in international law for transboundary damage, it is also far from clear that States should constitute the only or even the principal recourse for those injured by transboundary damage. It may be simpler, quicker, and economically more efficient to make polluters or those who cause harm pay rather than States. From this perspective, State responsibility and the liability of States are and should be no more than residual sources of redress. Any scheme of liability for transboundary damage should thus address the liability of private parties as well as States.

The ILC’s 1996 Draft Articles would have made States liable for significant transboundary harm caused by an activity covered by the Articles.14 The obligation to compensate other States would thus have included harm which the source State could not prevent by exercising due diligence.15 The level of compensation would in such cases be determined by negotiation, having regard to various factors. In effect what was required, as part of a balance of interests between the parties, was equitable rather than full compensation.

However meritorious the idea may have been in theory, few governments, in whatever context, have shown any enthusiasm for accepting that no-fault liability for damage caused by activities within their jurisdiction should fall on States themselves. The ILC has not returned to this model of loss allocation. Thus, for essentially pragmatic rather than principled reasons, the question of liability of States (in whatever form) for transboundary harm not resulting from a breach of obligation has, for the moment, been laid to rest. The ILC has chosen instead to concentrate on alternative approaches, with the intention that States should make provision for other actors involved in the operation of hazardous activities to compensate transboundary damage through national law. States would, however, remain responsible for their own fault in international law: the State’s duty would not be to provide reparation but to ensure that polluters and others who cause damage do so.

(p. 99) The ILC’s 2006 Liability Principles

Certain political realities have thus limited the ILC’s room for creativity. Making States liable for all transboundary damage, or going beyond the existing limits of State responsibility as already codified, do not appear likely to become acceptable to many governments for the reasons already outlined above. Drafting a complex harmonization convention along the lines of the 1993 Lugano Convention seems unlikely to attract greater support at a global level than it has attracted in Europe. The Liability Principles sent to governments for comment in 2004 and finally adopted with some revisions in 2006 are far from radical, and in that respect they fully reflect the ILC’s traditional conservatism and caution. Principle 3 sets out the objectives:

The purposes of the present draft principles are:

(a)  to ensure prompt and adequate compensation to victims of transboundary damage; and

(b)  to preserve and protect the environment in the event of transboundary damage, especially with respect to mitigation of damage to the environment and its restoration or reinstatement.

There are two related objectives identified here: compensation for transboundary damage, and cleaning up or restoring the environment. The most significant change to the ILC’s 2004 draft is that Principles 5 and 6(1) of the 2006 text quite rightly formulate both objectives in obligatory terms.16

Three preliminary points are important when considering the ILC’s treatment of compensation for transboundary damage. First, although States themselves are not made directly liable, the commentary says that the Principles are ‘without prejudice to the rules relating to state responsibility and any claim that may lie under those rules.’17 It seems clear that the ILC envisages civil liability and State responsibility as potentially complementary regimes. The preference of States and the ILC for non-discriminatory access to national remedies, civil liability, and compensation schemes as a means of dealing with transboundary environmental nuisances is already well established.18 The view that local remedies should be exhausted when adequate and available would leave inter-State claims as a residual option to be exercised only when other remedies have been exhausted or do not exist.

However, it has been suggested that the local remedies rule is inapplicable to cases of transboundary environmental harm. The underlying idea is that the injured party must have assumed the risk of being subject to the jurisdiction of a foreign State:

… even where effective local remedies exist, it would be unreasonable and unfair to require an injured person to exhaust local remedies where his property has suffered environmental harm caused by pollution, radioactive fallout or a fallen space object emanating from a State in which his property is not situated …19

The ILC Draft Articles on Diplomatic Protection thus exclude the local remedies rule where there is no ‘relevant connection’ between the injured party and the State (p. 100) responsible.20 On this view, governments would remain free to make an inter-State claim on behalf of anyone affected by transboundary damage without first exhausting local remedies. Particularly in cases where the damage is widespread, and the victims are numerous and poor, governmental action at inter-State level may well be the only realistic option and should not be excluded. The procedures of the United Nations Compensation Commission (UNCC) for bringing compensation claims against Iraq are the most recent example of governments espousing claims on behalf of a mass of individual victims.21 Whether such claimants should be left to their local remedies would in that type of case be a matter for their own government to decide.

But in more typical cases of transboundary nuisances it is not obvious why the absence of a relevant connection with the respondent State should exclude the local remedies rule even where the injured victims would suffer no hardship in pursuing local remedies and it would be feasible to do so. This will especially be true where the victim has the choice of suing in the place where the injury has occurred or would occur, rather than in the respondent state. For reasons elaborated at some length by the present author,22 States have clearly found it desirable to encourage resort to local remedies as a means of deescalating such transboundary disputes, and the logic of this policy is implicit in Principles 10 and 16 of the Rio Declaration. The ILC accepts that the authority in support of its relevant connection requirement is limited and contradictory, and its conclusion is tentative.23 In Trail Smelter there were no local remedies that could be exhausted in Canada because of the extra-territorial location of the damage and the narrowly territorial jurisdiction of Canadian courts: inter-State arbitration was the only possibility.24 Given this admittedly shaky foundation and the absence of any compelling justification, the ILC’s blanket dismissal of the rule in transboundary pollution cases appears questionable.

Secondly, and unusually for the ILC, the final text is partly in soft law form, employing the term ‘should’ rather than ‘shall’25. The commentary explains that:

the ILC concluded that recommended draft principles would have the advantage of not requiring a potentially unachievable harmonisation of national laws and legal systems. It is also of the view that the goal of widespread acceptance of the substantive provisions is more likely to be met if they are cast as recommended draft principles.26

In its 2004 form the ILC draft would have been a wholly soft law text. States were thus given guidance on what a liability regime ‘should’ look like, but they had no obligation to make any form of redress available to injured claimants and thus no responsibility for failing to do. Due no doubt to comments from States and academic criticism the 2006 text now acknowledges that the core elements of compensation and restoration are obligatory. This (p. 101) is certainly wise: as we note below, the ILC’s own reports suggested that there were enough precedents on which to build something more than a soft law compensation principle.

Thirdly, the principles remain applicable only to physical damage caused by ‘activities which involve a risk of causing significant transboundary harm …’27 This is the same test used in the ILC’s 2001 Articles on Prevention of Transboundary Harm. The most important consequence is that, like the House of Lords’ decision on strict liability in the Cambridge Water case,28 there will be no liability where damage could not have been foreseen.29 To that extent some damage will still go uncompensated, and the innocent victims must continue to bear such losses. The focus on ‘victims’ of transboundary damage reflects the wording of Principle 13 of the 1992 Rio Declaration on Environment and Development: it raises the obvious question of who is entitled to compensation.30

The core principle: prompt, adequate, and effective compensation?

Principle 6(1) sets out the core obligation of ensuring prompt, adequate, and effective compensation:

States shall provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensure that these bodies have prompt, adequate and effective remedies available in the event of transboundary damage caused by hazardous activities located within their territory or otherwise under their jurisdiction or control.

Here we can see immediately that the ILC envisages more than simply opening up national procedures to non-discriminatory access. At the heart of its scheme is an international standard for compensation—a standard of promptness and adequacy which affects not only the compensation itself but also the procedures and remedies through which it is to be obtained.

Underlying this formulation is the understanding that non-discriminatory access to national remedies may not be enough to satisfy an international standard of access to justice.31 The ILC refers to the Trail Smelter arbitration as authority, noting that ‘the basic principle established in that case entailed a duty of a State to ensure payment of prompt and adequate compensation for any transboundary damage’.32 Moreover, in requiring ‘effective redress’, ‘adequate and effective remedies’, or ‘prompt and adequate compensation or other relief ’, Principle 10 of the 1992 Rio Declaration, article 9(4) of the 1998 Aarhus Convention, and article 235(2) of the 1982 Law of the Sea Convention all suggest that there are international standards of compensation and remedy for victims of environmental damage. The failure of a State to provide adequate redress to its own citizens for pollution or other forms of damage may in sufficiently serious cases also violate the rights to life, health, private life, property, and freedom to dispose of natural resources under (p. 102) international human rights agreements.33 An alternative foundation would draw from precedents on the taking of property in international law, making an obvious analogy with damage by pollution.34 These precedents all show that Principle 6(1) builds on existing law. This element of the ILC scheme represents its most significant contribution to the progressive development of the subject. The rest of the scheme then goes on to set out a model for transboundary liability drawn from existing civil liability conventions. These elements are essentially optional and open to implementation in a variety of ways.

Three important points about allocation of loss stand out when comparing the ILC Principles to existing civil liability and compensation schemes. First, strict liability is the universally accepted standard,35 albeit with minor variations in the permitted defences. The ILC commentary accepts the argument that hazardous activities carry inherent risks and that it would be unjust and inappropriate to require proof of fault when accidents happen. It notes the adoption of strict liability in treaties and in national law, and on this point refers to its own draft as ‘a measure of progressive development of international law’.36 Second, as the examples of the Bunker Fuel Convention and the Protocol on Liability for Transboundary Waste show, channelling liability to a single owner or operator is not always a realistic option, and the choice of ‘owner/operator liability’ without more would represent in some cases too simplistic a solution without a broader definition of these terms.37 Significantly, while the ILC scheme chooses to focus liability on operators, it also allows for alternatives. The ‘operator’ of the harmful activity should be primarily liable, not the State, but ‘where appropriate’ liability may be imposed on some other person or entity.38 In practice the ILC’s draft seems to assume that there may be more than one operator and, by implication, that liability may be joint and several. Third, while most liability schemes spread the burden of loss through additional compensation funds,39 each scheme has its own unique funding arrangements. There is no common (p. 103) pattern. In some cases, States carry the ultimate burden of residual compensation funding, as well as a residual liability in the event of operator insolvency; in others the costs are borne wholly by industry. This makes them difficult models from which to derive any general scheme of loss allocation that might secure universal agreement beyond the proposition that some such provision should be made. It may also suggest that different contexts require different solutions. Again, the ILC scheme allows for such diversity. In ‘appropriate cases’ additional compensation funding should be provided by industry, or if necessary by States.40

The ILC’s text also replicates the definition of ‘environmental damage’ in the more modern liability treaties, and is consistent with the practice of the UNCC and developments in national law.41 Thus Principle 2(a) expressly includes damage to cultural property, the costs of reasonable measures of re-instatement of the environment, and reasonable response measures. In one respect the ILC Principles are potentially more progressive, however, because Principle 2(a)(iii) envisages liability for environmental damage per se, unrelated to the cost of response or restoration measures.42 While some national laws already allow recovery of compensation for pure environmental damage, no previous liability agreement has gone this far.43 Significantly the UNCC has also found no legal basis for excluding pure environmental damage that has no commercial value.44 To that extent the approach of both bodies is comparable to the IOPC Fund’s practice of allowing reasonable reinstatement measures aimed at accelerating natural recovery of environmental damage.45 The ILC says nothing on the question of valuation of such damage, although it notes that damages awarded do not have a punitive function. It defines ‘victim’ as the person or state that suffers damage, but its Commentary notes that the term can include groups of local authorities, non-governmental organizations, or public trustees.46 To that extent a limited form of actio popularis may in some cases be required.

(p. 104) Conclusions

While the 2006 ILC Principles on Allocation of Loss as a whole cannot be viewed as an exercise in codifying customary international law, they show how the ILC has made use of general principles of law as ‘an indication of policy and principle’.47 The draft successfully reflects the modern development of civil liability treaties, without in any way compromising or altering those which presently exist, or the right of victims to sue in their own State.48 This is a notable achievement, but it may also be a double-edged attribute. On the one hand it is prudent to build on what States themselves have already negotiated. On the other, the reluctance of States to ratify those same treaties may indicate a less than wholehearted commitment to the idea of shifting the focus away from State responsibility for transboundary harm in favour of civil liability and individual access to justice. Given the unwillingness of States to extend their own liability on a no-fault basis, it is difficult to see what other choice the ILC could have made.

The ILC’s Principles are not necessarily an obstacle to an international court holding States liable without fault for transboundary damage in international law. Given that the decision is one of legal policy, an argument based on strict liability as a general principle of law cannot be dismissed. But international courts have been cautious in making use of this source of law, mainly because it constitutes a form of judicial lawmaking independent of the will of States. References to national law in the Trail Smelter case were carefully controlled by the compromis and agreed by the parties.49 Where this is not the case, it seems likely that an international court would hesitate to impose a general principle of strict or absolute liability on States, however widely evidenced in national law, in the face of the contrary evidence of State claims and treaty formulations referred to earlier. For this reason objective responsibility for breach of obligation remains a firmer foundation for a standard of State liability for environmental damage in international law. That also appears to represent the final view of the ILC.

Further reading

  • A Bianchi, ‘Harmonisation of Laws on Liability for Environmental Damage in Europe’ (1994) 6 Journal of Environmental Law 21
  • L Bergkamp, Liability and the Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (The Hague, Kluwer, 2001)
  • E Brans, Liability for Damage to Public Natural Resources (The Hague, Kluwer, 2001)
  • P W Birnie, AE Boyle, & C Redgwell, International Law and the Environment (3rd edn, OUP, 2009), 214–225, 303–326
  • J Brunnée, ‘Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection’ (2004) 53 ICLQ 351
  • RR Churchill, ‘Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems and Prospects’ (2001) 12 Yearbook of International Environmental Law 3
  • L de la Fayette, in M Bowman & AE Boyle (eds), Environmental Damage in International and Comparative Law (Oxford, OUP, 2002), ch 9
  • C McLachlan & P Nygh, Transboundary Tort Litigation (Oxford, OUP, 1996), ch 12
  • R Lefeber, Transboundary Environmental Interference and the Origin of State Liability (The Hague, Kluwer, 1996)
  • H Xue, Transboundary Damage in International Law (Cambridge, CUP, 2003), esp ch 2

Footnotes:

See ILC Yearbook 1969, Vol II, 229; ILC Yearbook 1971, Vol II(1), 200 (para 5), 203 (para 20).

See M Akehurst, ‘International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law’ (1985) 16 Netherlands YBIL 3, 8; AE Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?’ (1990) 39 ICLQ 1; M Fitzmaurice, ‘International Law as a Special Field’ (1994) 25 Netherlands YBIL 181. For more favourable views see G Handl, ‘Liability as an Obligation Established by a Primary Rule of International Law’ (1985) 16 Netherlands YBIL 49; D Magraw, ‘Transboundary Harm: the ILC’s Study of International Liability’ (1986) 80 AJIL 305; R Lefeber, Transboundary Interference and the Origin of State Liability (The Hague, Kluwer, 1996), ch 6.

See ILC Yearbook 1980, Vol II(1), 160 (paras 138–139); ILC Yearbook 1981, Vol I, 224 (para 10); and the Special Rapporteur’s first schematic outline in ILC Yearbook 1982, Vol II(1), 62; ILC Yearbook 1983, Vol II(I), 204 (para 10).

Draft art 2, reproduced in Report of the ILC, 53rd Session, 2001, A/56/10, 151. See the Special Rapporteur’s 4th and 5th Reports in ILC Yearbook 1983, Vol II(1), 201; ILC Yearbook 1984, Vol. II(1) 155 and the Survey of State Practice Relevant to International Liability for Injurious Consequences (etc.) (1984) UN Doc ST/LEG/15.

The report of the working group and their draft articles are in ILC Yearbook 1996, Vol II(1), 100–132.

PS Rao, First Report on Prevention of Transboundary Damage from Hazardous Activities, ILC Yearbook 1998, Vol II(1) 175, PS Rao, Second Report on Prevention of Transboundary Damage from Hazardous Activities, ILC Yearbook 1999, Vol II(1) 111; PS Rao, Third Report on Prevention of Transboundary Damage from Hazardous Activities, ILC Yearbook 2000, Vol II(1).

See ILC Yearbook 2001, Vol II(2), 144–170.

Report of the ILC, 55th Session, 2003, A/58/10, 114 (para 178). See also Report of the ILC, 54th Session, 2002, A/57/10, 220–227 (paras 430–457).

GA Res 56/82, 12 December 2001.

10  See Report of the ILC, 56th Session, 2004, A/59/10, 143–157 (paras 158–176); for preparatory work see Report of the ILC, 54th Session, 2002, A/57/10, 220–227 (paras 430–457); PS Rao, First Report on the Legal Regime for Allocation of Loss in Case of Transboundary Harm arising out of Hazardous Activities, Report of the ILC, 55th Session, 2003, A/CN.4/531; Report of the ILC, 55th Session, 2003, A/58/10, 103–130 (paras 154–231); PS Rao, Second Report on the Legal Regime for the Allocation of Loss in Case of Transboundary Harm arising out of Hazardous Activities, 2004, A/CN.4/540.

11  Report of the ILC, 58th Session, 2006, A/61/10, 101–182 (paras 51–67).

12  See Principles 4 and 5.

13  See eg Corfu Channel Case (United Kingdom v Albania), Merits, Judgment, ICJ Reports 1949, p 1; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 139.

14  1996 ILC draft art 5, on which see ILC Yearbook 1996, Vol II(1), 100, 270.

15  Under 1996 draft art 1 this obligation would apply both to activities where there was a risk of harm and those which merely caused harm. Cf Corfu Channel Case (United Kingdom v Albania), Merits, Judgment, ICJ Reports 1949, p 1, in which it was held that Albania both knew of the risk and could have prevented the harm. Similarly, the Trail Smelter case appears to be an example of liability for harm which was foreseeable and preventable, although it is true that the arbitral award also makes provision for future liability which is not dependent on failure to take preventive measures: Trail Smelter Arbitration (United States v Canada) (1938–1941) 1 International Environmental Law Reports 231.

16  For criticism of the 2004 draft on this point see A Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’ (2005) 17 Journal of Environmental Law 3.

17  Report of the ILC, 58th Session, 2006, A/61/10, 111 (para 7).

18  See eg 2001 Articles on Prevention of Transboundary Harm, art 15; 1997 UN Convention on International Watercourses, art 32; United Nations Convention on the Law of the Sea, 10 December 1982, 18 33 UNTS 3, art 235(2).

19  Report of the ILC, 58th Session, 2006, A/61/10, 80–1 (para 7).

20  Articles on Diplomatic Protection, General Assembly, Official Records, 61st Session, Supplement No 10, A/61/10, 16, art 15(c).

21  See M Kazazi, ‘Environmental Damage in the Practice of the UN Compensation ILC’, in M Bowman and A Boyle (eds), Environmental Damage in International and Comparative Law (Oxford, OUP, 2002) 111.

22  See P Birnie, A Boyle, & C Redgwell, International Law and the Environment (3rd edn, Oxford, OUP, 2009), 303–315.

23  Report of the ILC, 58th Session, 2006, A/61/10, 82 (para 9).

24  JE Read, ‘The Trail Smelter Dispute’ (1963) 1 Canadian YBIL 213, 222. The ILC commentary appears not to appreciate this point. In the Chernobyl disaster there were also no local remedies because there was no liability under Soviet law. But in the Sandoz pollution disaster on the Rhine, and the Handelskwekerij Case, local remedies did exist and were used.

25  See in particular Principles 4, 5(c) and (e), 6(2), 7, and 8.

26  Report of the ILC, 56th Session, 2004, A/59/10, 160, General Commentary (para 14).

27  Principles 1 and 2(c).

28  [1994] 1 All ER 53.

29  Commentary to Principle 1, para 10.

30  On which see below.

31  Compare ILA, 67th Conference Report (1996), 401–415, International Watercourses, art 2(1): ‘States, individually or jointly, shall ensure the availability of prompt, adequate and effective administrative and judicial remedies for persons in another State who suffer or may suffer damage …’

32  Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 4, 197 (para 11); see also commentary to Principle 6, 213 (para 7).

33  SERAC v Nigeria (2002) ACHPR Comm 155/96 (2002) para 69; Maya indigenous community of the Toledo District v Belize, Case 12.053, Report No 40/04, IACHR OEA/Ser.L/V/II.122 Doc 5 rev 1 (2004); Fadeyeva v Russia (App No 55723/00) ECHR Reports 2005-IV; Taskin v Turkey [2006] 42 EHRR 50, para 119.

34  See eg Sporrong and Lönnroth v Sweden (1983) 5 EHRR 617, where planning blight was held to constitute a taking of property without compensation, contrary to art 1 of Protocol 1 of the European Convention on Human Rights. The ‘prompt, adequate and effective’ standard of compensation for expropriation is not universally accepted, however. See CF Amerasinghe, ‘Issues of Compensation for the Taking of Alien Property in the Light of Recent Cases and Practice’ (1992) 41 ICLQ 22.

35  See ILC Principle 4. But the 2003 Kiev Protocol retains additional fault-based liability as provided for by national law: Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc MP.WAT/2003/1, CP.TEIA/2003/3. See also the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage 1969, 27 November 1992, arts 3 and 5(2); Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480, art 8(b); and the 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999, UN Doc UNEP/CHW.5/29.

36  Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 4, 199 (paras 15–17).

37  The 2001 Bunker Fuel Convention makes the shipowner, charterer, manager and operator jointly and severally liable: 2001 International Convention on Liability and Compensation for Bunker Oil Spills, IMO Doc LEG/CONF 12/19 (2001), 341. Under the 1999 Transboundary Waste Protocol generators, exporters, importers and disposers are all potentially liable at different stages of the wastes’ journey to its eventual destination (Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 10 December 1999, UN Doc. UNEP/CHW.5/29.

38  ILC Principle 4.

39  The 1993 Lugano Convention (Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480) and the 2003 Kiev Protocol (Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc. MP.WAT/2003/1, CP.TEIA/2003/3) are notable exceptions.

40  ILC Principle 7.

41  Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 2, 170–182 (paras 1–21). For fuller analysis of recent trends see Bowman and Boyle (eds) Environmental Damage in International and Comparative Law (Oxford, OUP, 2002).

42  Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 2, 177 (para 12); ILC Report (2006): Report of the ILC, 58th Session, 2006, A/61/10, commentary to Principle 2, 129–130 (paras 13–15); see also Special Rapporteur’s Second Report, ILC Yearbook 1999, Vol II(1), para 31.

43  Compare the 2004 Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy, art IB; 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage, art 1(6); de La Fayette, 20 IJMCL (2005) 167, at 202–205, and see generally P Bowman & A Boyle, Environmental Damage in International and Comparative Law (Oxford, OUP, 2002), 213–322.

44  UNCC F4 Claims 5th Decision (2006) para 57.

45  IOPC Fund Resolution No 3 on Pollution Damage (October, 1980). See also the claims made in respect of the Antonio Gramsci (No 2) and the Patmos, reported in IOPC Fund, Annual Report (1990) 23 and 27, and the Haven, Annual Report (1999) (para 10.2). In all three cases the Fund rejected claims for unquantified environmental damage.

46  Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 3,186–188 (paras 3–6); ILC Report (2006), Report of the ILC, 58th Session, 2006, A/61/10, commentary to Principle 2, 176–178 (paras 11–14). Compare the 2005 Antarctic Liability Annex under which states parties may sue the operator for the cost of environmental response and cleanup measures, but not for environmental damage per se. For comprehensive analysis of valuation of environmental damage and standing to sue see E Brans, Liability for Damage to Public Natural Resources (The Hague, Kluwer Law International, 2001).

47  See South West Africa, Advisory Opinion, ICJ Reports 1950, p 128, 146,148 (separate opinion of Judge Mc Nair).

48  See Principles 6(3) and 7.

49  See the Tribunal’s award at (1941) 35 AJIL 684, 698, 714ff.