Part III The Sources of International Responsibility, Ch.35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law
Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett
- Responsibility of states — State succession — Development
(p. 515) Chapter 35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law
It is possible for damage—whether to persons, to property or to the environment—to occur within the territory of a State, or in a zone outside national jurisdiction, as the result of activities which take place under the authority of another State. Is the liability of that second State engaged in the absence of any wrongful act, and in particular, in the absence of any failure to comply with the obligations of prevention incumbent upon it under international law?
A priori, the existence of so-called ‘significant’ damage, in the sense in which that term has been used by the International Law Commission (ie as referring to damage which is ‘something more than “detectable” but need not be at the level of “serious” or “substantial” ’),1 should lead to compensation for the victims. However, the work of the International Law Commission, started in 1978, was long and laborious, involving a succession of three Special Rapporteurs (Quetin-Baxter, Barbosa, and Rao).2 In fact, as was emphasized by the Institut de Droit International in its resolution on Responsibility and Liability under International Law for Environmental Damage,3 it is necessary to distinguish between two different ways of understanding the actor which bears responsibility: liability of the State; and liability of the operators of the activity in question.
According to the Institut de Droit International, which at the time referred simply to ‘liability’ (in the French text, ‘responsabilité pour simple prejudice’),4 this type of responsibility is ‘most appropriate in case of ultra-hazardous activities, and activities entailing risk or having other similar characteristics’.5
Self-evidently, the compilation of an exhaustive list of such activities poses difficulties: what of, for example, the deliberate sowing of genetically modified seeds? However, the attribution of their harmful consequences to the State in question may be justified on the basis of two considerations. On the one hand, such activities contribute to the State’s References(p. 516) economic development. On the other, it might be said that the damage caused ‘expresses in itself a manifestation of a breach by the State of its international obligations of control and supervision’.6
Nevertheless, as a matter of customary international law, there exists no general principle providing for the responsibility of the State in the absence of an internationally wrongful act, and this is so even if the damage caused is of an environmental nature. Such a principle would run counter to the customary rule according to which the actions of a person or group of persons which does not act on behalf of a State are not attributable to it. Further, the treaty precedents are very few in number and are limited to dealing with two types of activities (activities in space and civil nuclear energy), the development of which would have been hindered in the absence of a rigorous regime of responsibility. These treaties, concluded at a time when environmental considerations had made little mark on international law, nevertheless have the merit of illustrating, for the benefit of the negotiators of future treaties relating to other activities, two possible ways of engaging the liability of States for any damage (or, at the least, for any ‘significant’ damage) caused outside their territory in the absence of an internationally wrongful act.
The first mechanism involves engaging the exclusive liability of the State. The 1971 Convention on the International Liability for Damage Caused by Space Objects,7 involves an assumption of responsibility: the launching State, both where it is itself the operator and where its territory or its equipment have been used in the launch, exclusively assumes the consequences of damage caused by a space object on the surface of the earth or to aircraft in flight. The Convention even goes so far as to require, in the case of a launch by an international organization, that the State must accept joint and several responsibility with the organization if the agreed compensation is not paid to the victim within six months.
The second mechanism is the incurring of the responsibility of the State based on the idea of ‘State relay’. For example, under the 1963 Brussels Supplementary Convention8 additional to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy,9 adopted under the auspices of the OECD, the liability of the State on the territory of which the nuclear installation which has caused damage is located replaces that of the operator above and beyond the level of compensation guaranteed by the operator. Further, the Brussels Convention even provides for a certain degree of joint liability of all the States parties to the Convention to the extent that they are required to contribute to funds for the grant of supplementary compensation. That approach is taken up by the 1997 Convention on Supplementary Compensation,10 additional to the 1963 Vienna Convention on Civil Liability,11 concluded under the auspices of the IAEA.
References(p. 517) This second method, which is rightly classified by some authors as ‘deferred liability’,12 had real potential to be applied more generally, although this in fact never occurred. Despite the multiplication of incidents causing accidental harm to the environment, it is now probably unrealistic to envisage an extension of these treaty-based mechanisms to other areas of environmental harm. In that regard, it is sufficient to have regard to the evolution of the work of the ILC on liability following the provisional adoption in 1996 of a complete set of draft articles,13 or to the text which emerged out of the negotiations in relation to reparation for environmental damage caused in Antarctica in the context of the 1991 Madrid Protocol to the Antarctic Treaty.14 Although there is consensus on the extreme ecological fragility of the Antarctic region, the debate was extremely heated.15 Annex VI to the Madrid Protocol, which was finally approved in June 2005 by the 28th Consultative Meeting, is limited to liability incurred for a failure to take preventative measures in relation to environmental emergencies and above all, only envisages the objective liability of an ‘Operator’ of one of the Parties. In this regard, the notion of Operator is defined as meaning ‘any natural or juridical person, whether governmental or nongovernmental, which organises activities to be carried out in the Antarctic Treaty area’, and therefore covers State operators.16
The impossibility of establishing new treaties relating to the international liability of States in the absence of an internationally wrongful act is hardly surprising if one recalls the timid reaction of those States affected by the radioactive cloud released from the Chernobyl power station in 1986 or those affected by the consequences of the Sandoz factory accident in Basel. None of them tried to invoke the liability of the USSR or Switzerland, respectively. Further, as a matter of international practice, the only possible approach is attempting to invoke the civil liability of those responsible for the damage; this mechanism, already utilized in relation to damage caused by nuclear activities, ultimately derives from the 1969 Convention on Civil Liability for Oil Pollution Damage,17 concluded following the oil spill resulting from the shipwreck of the Torrey Canyon in 1967.18
As a result, the most recent treaty in this regard, the Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters,19 concluded in 2003 within the framework of the UN Economic Commission for Europe, provides for the liability of the operator of the activity in question. More generally, this practice has become systemic. Although a more complex mechanism for determining the party responsible was established in the particular case of References(p. 518) damage caused by activities covered by the Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal,20 which may result in the liability of the producer, the exporter, the importer or the disposer of the waste, nevertheless, its drafters retained the same logic. Accordingly, they denied any possibility of attributing the conduct causing damage to the State in which the transboundary movement of waste originated.
National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.
In that regard, it may be noted that the ILC cited Principle 16 in the preamble to the 2006 Draft Principles, and had no hesitation in qualifiying it as an ‘essential component’ underpinning the draft.21
With ‘its title which is similar to a slogan and the clearness of the logic that underpins it’ this principle ‘easily collects adhesion’.22 Of course, this adhesion comes from the victims and public opinion and, above all, from States that are concerned that their international responsibility should not be engaged other than within the traditional confines of the secondary rules on State responsibility which form part of customary international law. Accordingly, even though initially conceived by the OECD in order to determine which party had to bear the cost of preventative measures and of the fight against pollution,23 the success of its remedial function is cemented with every new catastrophe.
The preamble to the 2003 Kiel Protocol refers to the Polluter-Pays principle as being a ‘general principle of international environmental law’. Further, in a relatively small number of treaties, the import of the Polluter-Pays is implemented in a particular audacious manner manifested by the refusal to permit an arbitrary cap on the amount of compensation; in what constitutes, to date, a unique example, the drafters of the 1993 Lugano Convention24 renounced any ceiling on damages. In other treaties a minimum level of compensation References(p. 519) has been fixed.25 Further, the 2004 Protocol to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy not only constitutes a strict application of the Polluter-Pays principle, but is also particularly innovative insofar as it provides for the civil responsibility of the operator even where an accident is caused by a natural disaster.
Nevertheless, the Polluter-Pays principle is incapable on its own of responding to the risk of the insolvency of the operator or an insufficiency of its bank guarantee, the possibility that it might prove impossible to identify the operator in question, or the possible existence of some defence negating liability.26 Such problems have not been ignored; for example, the Institut de droit international proposed in 1997, albeit in cautious terms, the possibility of the complementary liability of the State. Further, in proposals made in March 1990, Special Rapporteur Barboza suggested that the ILC should resort to the liability of the State where the polluter is incapable of compensating the damage entirely or where the operator cannot be identified.27
Is recourse to State intervention the best way forward? In Principle 7 of the Draft Principles adopted on second reading in 2006, the ILC encouraged States to include joint compensation funds in future international agreements relating to ‘particular categories of hazardous activities’. It is envisaged that such funds would be financed with ‘industry and/or State funds to provide supplementary compensation in the event that the financial resources of the operator, including financial security measures, are insufficient to cover the damage suffered as a result of an incident’.28
In this regard, the International Oil Pollution Compensation (IOPC) funds have been in operation for some time. Originally created pursuant to the 1971 Brussels Convention29 adopted in order to complement the 1969 Convention on Civil Liability for Oil Pollution Damage which had been adopted two years earlier, the funds have as their aim to remedy the insufficiencies of the civil liability regime governing carriers, who benefit from limitation of liability. Insofar as contributions to the funds are required from cargo owners, ie petrol companies, its existence has been made easier due to the vitality of the market for transport of petroleum products by sea. However, the IOPC funds are exceptional; the drafters of the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (the HNS Convention)30 took a far more controversial route. Although creating a fund, State parties are authorized to assume liability themselves for the contributions payable under the Convention by receivers of substances covered by the Convention. That hardly constitutes a strict interpretation of the Polluter-Pays principle.
References(p. 520) Further reading
- J-P Beurier and A Kiss, Droit international de l’environnement (Paris, Pedone, 2000)
- W Chao, La pollution du fait des hydrocarbures (Paris, Pedone, 1994)
- P-M Dupuy, Le responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1977)
- N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999)
- J-F Dobelle, ‘Bilan des travaux du groupe Wolfrum sur le régime de la responsabilité en cas de dommages causés à l’environnement dans l’Antarctique’ (1997) 44 AFDI 716
- JG Lammers, ‘International Responsability and Liability for Damage caused by Environmental Interferences’ (2000) 31/1 Environmental Policy and Law 50;
- (2000) 31/2 Environmental Policy and Law, 94
- A Rest, ‘International Environmental Liability in the Drafts of the UN International Law Commission and the UN/ECE Task Force’ (1992) 22/1 Environmental Policy and Law 31
- J Salmon, ‘La 68ème session de l’Institut de Droit international, Strasbourg, 1997’ (1997) 39 AFDI 1187
- H Smets, ‘Le principe pollueur—payeur, un principe économique érigé en principe de droit de l’environnement’ (1993) 97 RGDIP 339
1 Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Commentary to Principle 2, para 2; Report of the ILC, 58th Session, 2006, A/61/10, 123.
2 For a summary of the Commission’s work, see in particular 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 (2003).
3 Article 5, Institut de Droit International, Resolution on ‘Responsibility and Liability under International Law for Environmental Damage‘, Strasbourg Session, 4 September 1997, available at <http://www.idi-iil.org/>.
13 ‘Report of the Working Group on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law’, Report of the ILC, 48th Session, Annex I, ILC Yearbook 1996, Vol II(2), 100–132.
18 JG Lammers, ‘International Responsability and Liability for Damage caused by Environmental Interferences’ (2000) 31/1 Environmental Policy and Law 50 and (2000) 31/2 Environmental Policy and Law 94.
21 Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Commentary to the Preamble, para 2, Report of the ILC, 58th Session, 2006, A/61/10, 115.
22 N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 104.
25 See 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; the 1997 Protocol to the 1963 Vienna Convention on Civil Liability for Nuclear Damage, and the 2004 Protocol to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy.