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Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes

  • Sean D. Murphy (a1)

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At the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, governments decided to cooperate “in an expeditious and more determined manner” to develop international law regarding liability and compensation for transnational environmental damage. UNCED, however, did not decide whether this development should proceed broadly through codification of principles or rules encompassing all types of transnational environmental damage or more narrowly through the establishment of liability and compensation regimes tailored to specific issues of environmental damage.

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1 Rio Declaration on Environment and Development (June 14, 1992), Principle 13, UN Doc. A/CONF.151/5/Rev.l (1992), reprinted in 31 ILM 874, 878 (1992).

2 Agenda 21: Program of Action for Sustainable Development, Rio de Janeiro, UN Doc. A/CONF.151/26 (3 vols. 1992).

3 Stockholm Declaration on the Human Environment (June 16, 1972) (section I of the Report of the United Nations Conference on the Human Environment), UN Doc. A/CONF.48/14 & Corr.l (1972), reprinted in 11 ILM 1416 (1972) [hereinafter Stockholm Declaration].

4 Id., Principle 22, 11 ILM at 1420.

5 See, e.g., the work of the International Law Commission cited infra note 95.

6 For an analysis of this incident, see Sylvia F. Liu, Comment, The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste, 8 J. Nat. Resources & Envtl. L. 121 (1993).

7 Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal, Mar. 22, 1989, UN Doc. UNEP/IG.80/3 (1989), reprinted in 28 ILM 657 (1989) [hereinafter Basel Convention]. For the U.S. Government notice regarding entry into force of the Basel Convention, see 57 Fed. Reg. 20,602 (1992).

8 For an excellent analysis of the Convention, see Katharina Kummer, The International Regulation of Transboundary Traffic in Hazardous Wastes: The 1989 Basel Convention, 41 Int’l & Comp. L.Q. 530 (1992); see also David J. Abrams, Note, Regulating the International Hazardous Waste Trade: A Proposed Global Solution, 28 Colum. J. Transnat’l L. 801 (1990); Patricia W. Birnie & Alan E. Boyle, International Law and the Environment 332–34 (1992); Marguerite M. Cusack, Comment, International Law and the Transboundary Shipment of Hazardous Waste to the Third World: Will the Basel Convention Make a Difference?, 5 Am. U.J. Int’l L. & Pol’y 393 (1990); David P. Hackett, An Assessment of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, id. at 291; Kathleen Howard, Note, The Basel Convention: Control of Hazardous Wastes and Their Disposal, 14 Hastings Int’l & Comp. L. Rev. 223 (1990); Winfried Lang, The International Waste Regime, in Environmental Protection and International Law 147 (Winfried Lang, Hanspeter Neuhold & Karl Zemanek eds., 1991), Alexandre Kiss, The International Control of Transboundary Movement of Hazardous Waste, 26 Tex. Int’l L.J. 521 (1991); Kenda Jo M. McCrory, Comment, The International Exportation of Waste: The Battle Against the Path of Least Resistance, 9 Dick. J. Int’l L. 339 (1991); Michelle M. Vilcheck, Comment, The Controls on the Transfrontier Movement of Hazardous Waste from Developed to Developing Nations: The Goal of a “Level Playing Field,” 11 Nw. J. Int’l L. & Bus. 643 (1991); Ibrahim J. Wani, Poverty, Governance, the Rule of Law, and International Environmentalism: A Critique of the Basel Convention on Hazardous Wastes, 1 Kan. J.L. & Pub. Pol’y 37 (1991).

9 Section 1004(5) of the Resource Conservation and Recovery Act defines “hazardous waste” as

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

42 U.S.C. §6903(5) (1988).

10 40 C.F.R. pt. 261 (1992). Under these regulations, to be hazardous, wastes must either exhibit one of four hazardous characteristics (ignitability, corrosivity, reactivity or toxicity) or be listed as hazardous.

11 Daniel Mazmanian & David Morell, Beyond Superfailure: America’s Toxics Policy for the 1990s 81 (1992). About half of all hazardous wastes are inorganic liquids and sludges generated by the chemical industry and petroleum refineries.

12 See, e.g., William R. Mangun, A Comparative Analysis of Hazardous Waste Management Policy in Western Europe, in Dimensions of Hazardous Waste Politics and Policy 205, 208 (Charles E. Davis & James P. Lester eds., 1988); Mohan A. Prabhu, Toxic Chemicals and Hazardous Wastes: An Overview of National and International Regulatory Programs, 11 Int’l Envtl. L. Rep. (BNA) 687, 692 (1988) (discussing definitions of hazardous wastes by various developed countries).

13 Code of Practice on the International Transboundary Movement of Radioactive Waste, International Atomic Energy Agency Doc. GC(34)/RES/530 (Sept. 21, 1990). In this code of practice, the IAEA decided to “keep the question of international transboundary movement of radioactive waste under active review, including the desirability of concluding a legally binding instrument under the auspices of the IAEA.”

14 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 UST 2403, 1046 UNTS 120.

15 See, e.g., Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15, 1972, 932 UNTS 3; Convention for the Protection of the Marine Environment of the Baltic Sea Area, Mar. 22, 1974, reprinted in 13 ILM 546 (1974) (prohibiting all dumping of hazardous wastes with certain exceptions listed in Annex V).

16 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983). The Convention will enter into force in November 1994.

17 Annex I to the Basel Convention, supra note 7, lists the waste streams and constituents. Annex III lists the characteristics.

18 In the United States, the EPA has been criticized for inadequate generation of certain types of hazardous waste data and imprecise measurement techniques. See, e.g., U.S. General Accounting Office [hereinafter GAO], Hazardous Waste: EPA’s Generation and Management Data Need Further Improvement, GAO/PEMD-90-3 (1990); idem., Hazardous Waste: Data Management Problems Delay Epa’s Assessment of Minimization Efforts, GAO/RCED-91-131 (1991).

19 OECD, The State of the Environment (1991). For estimates of hazardous and special wastes generated in selected countries, see UNEP, Environmental Data Report 345 (1991). Other estimates of worldwide production of hazardous wastes range as high as 500 million tons per year. Christoph Hilz, The International Toxic Waste Trade 21 (1992).

20 Nathaniel C. Nash, Chileans Pay Dearly for Economic Growth, N.Y. Times, Nov. 10, 1991, §4, at 6.

21 F. A. Uriarte, Hazardous Waste Management in ASEAN, in Hazardous Waste Management (S. P. Maltezou, Asit K. Biswas & Hans Sutter eds., 1989). For example, it is estimated that the production of hazardous wastes in South Korea increased from 12.2 million tons in 1985 to 21 million tons in 1989. The World Environment 1972–1992: Two Decades of Challenge 264 (Mostafa K. Tolba & Osama A. El-Kholy eds., 1992).

22 The World Environment 1972–1992, supra note 21, at 268.

23 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong., 2d Sess. 43 (1992) (environmental documentation submitted by the Department of State to accompany transmittal to the Senate of the Convention) [hereinafter Senate 1992 Hearing]. In prior years, the United States exported 141,664 tons (1989), 137,602 tons (1988) and 98,960 tons (1987) of hazardous wastes. All U.S. hazardous waste exports to Mexico are for recycling and consist primarily of electric arc furnace dust (captured by air pollution control devices), from which zinc is recovered. For information on the U.S. waste trade with Canada and Mexico, see United States Waste Trade with Mexico and Canada: Hearing Before the Subcomm. on Environment, Energy, and Natural Resources of the House Comm. on Government Operations, 102d Cong., 1st Sess. (1991); Stephen M. Lerner, Comment, The Maquiladoras and Hazardous Waste: The Effects Under NAFTA, 6 Transnat’L Law. 255 (1993); Barbara Scramstad, Comment, Transboundary Movement of Hazardous Wastes from the United States to Mexico, 4 Transnat’L Law. 253 (1991). Countries receiving hazardous wastes other than Mexico and Canada included Belgium, Brazil, Finland, Japan, South Africa, Spain, Sweden, the United Kingdom, and Germany. Senate 1992 Hearing, supra, at 23 (statement of Dr. Harvey Alter, U.S. Chamber of Commerce).

24 Report of the Secretary-General, Development and International Economic Cooperation: Environment (Illegal Traffic in Toxic and Dangerous Products and Wastes), UN Doc. A/44/362, at 7–8 (1989).

25 See UNEP, supra note 19, at 335–36 (indicating that 20% of the global trade goes from developed to developing countries, and providing dates and amounts of shipments to developing countries); see also Nathaniel C. Nash, Latin Nations Getting Others’ Waste, N.Y. Times, Dec. 16, 1991, at A10.

26 Mostafa K. Tolba, Saving Our Planet: Challenges and Hopes 114–16 (1992).

27 GAO, Hazardous Waste: Limited Progress in Closing and Cleaning Up Contaminated Facilities, GAO/RCED-91–79, at 2 (1991).

28 See Center for Investigative Reporting & Bill Moyers, Global Dumping Ground: The International Traffic in Hazardous Wastes 1–14 (1990) (sharply criticizing the conduct of the global hazardous waste trade, particularly that of the United States).

29 International Export of U.S. Waste: Hearing before a Subcomm. of the House Comm. on Government Operations, 100th Cong., 2d Sess. 392–448 (1988) (submission of Greenpeace International) [hereinafter House 1988 Hearing]; see generally Jim Vallette, The International Trade in Wastes: A Greenpeace Inventory (1989).

30 Hilz, supra note 19, at 25.

31 Report of the Secretary-General, supra note 24, at 7–8.

32 Current Report, Missing Drums of Dioxin Waste From Seveso Found in Barn in Northeastern French Village, 6 Int’l Envtl. L. Rep. (BNA) 257 (1983); Current Report, Drums of Dioxin Return to Switzerland, Discussion Continues Over Final Disposal, id. at 289.

33 Current Report, German Firm Admits Illegal Dumping of Industrial Wastes in Belgium in 1983, 7 Int’l Envtl. L. Rep. (BNA) 104 (1984).

34 For more details on these and other incidents, see generally Center for Investigative Reporting & Moyers, supra note 28, chs. 1–3; House 1988 Hearing, supra note 29; Vallette, supra note 29.

35 See generally The Implications of the Industrial Disaster at Bhopal, India: Hearing before the Subcomm. on Asian and Pacific Affairs of the House Comm. on Foreign Affairs, 98th Cong., 2d Sess. (1984).

36 The Bhopal incident does raise important questions about the responsibilities of a state that provides hazardous technologies to another state. See Ved P. Nanda & Bruce C. Bailey, Export of Hazardous Waste and Hazardous Technology: Challenge for International Environmental Law, 17 Denv. J. Int’l L. & Pol’y 155 (1988); see also Anthony D’Amato & Kirsten Engel, State Responsibility for the Exportation of Nuclear Power Technology, 74 Va. L. Rev. 1011 (1988).

37 The export of hazardous wastes and subsequent import of tainted food products by industrialized countries has been called a “boomerang effect” or, in the context of toxic pesticides, a “circle of poison.” See House 1988 Hearing, supra note 29, at 373–74 (statement of Bonnie Ram, Federation of American Scientists).

38 See, e.g., Côte d’lvoire (Ivory Coast) Law on Toxic and Nuclear Waste, Law No. 88–651 (July 7, 1988), reprinted in 28 ILM 391 (1989).

39 Senate 1992 Hearing, supra note 23, at 23 (statement of Jim Vallette, Greenpeace International).

40 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, Jan. 30, 1991, reprinted in 30 ILM 775 (1991) (not yet in force). Both the Bamako Convention and the Fourth ACP/EC Convention, infra note 41, may be considered to be regional or multilateral agreements that add more stringent requirements to those in the Basel Convention, supra note 7, which is permitted under Article 11 of the latter. For a comparison, see C. Russell H. Shearer, Comparative Analysis of the Basel and Bamako Conventions on Hazardous Waste, 23 Envtl. L. 141 (1993); see also J. Wylie Donald, Note, The Bamako Convention as a Solution to the Problem of Hazardous “Waste Exports to Less Developed Countries, 17 Colum. J. Envtl. L. 419 (1992).

41 Fourth ACP/EC [Lomé] Convention, Dec. 15, 1989, Art. 39, reprinted in 29 ILM 809, 819–20 (1990). The parties to the Lomé Conventions come from two groups: the member countries of the European Community and countries from Africa, the Caribbean and the Pacific (ACP). The earlier Lomé Conventions deal with special trade relations and cooperation in various areas.

42 OECD Council Decision and Recommendation on Transfrontier Movements of Hazardous Waste, OECD Doc. C(83)180 (Feb. 1, 1984), reprinted in 23 ILM 214 (1984); Council Directive 84/631 of 6 December 1984 on the Supervision and Control within the European Community of the Transfrontier Shipment of Hazardous Wastes, 1984 O.J. (L 326) 31.

Previously, various efforts had been made to set precautionary standards for safe transport of dangerous goods. In 1957, a United Nations ECOSOC Committee of Experts on the Transport of Dangerous Goods developed “Recommendations on the Transport of Dangerous Goods,” which have been widely implemented through such regional and global agreements as the European Agreement Concerning the International Carriage of Goods by Road, Sept. 30, 1957, 619 UNTS 77; the Regulations Concerning the International Carriage of Dangerous Goods by Rail; the International Maritime Dangerous Goods Code; and the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods (Sept. 30, 1957), Annex 18 to Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295.

43 OECD Council Decision and Recommendation on Exports of Hazardous Waste from the OECD Area, OECD Doc. C(86)64 (June 5, 1986), reprinted in 25 ILM 1010 (1986); Council Directive 86/279 of 12 June 1986 Amending Directive 84/631/EEC on the Supervision and Control within the European Community of the Transfrontier Shipment of Hazardous Wastes, 1986 O.J. (L 181) 13.

44 International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, reprinted in 12 ILM 1319 (1973), as modified by Protocol Relating to the International Convention for the Prevention of Pollution from Ships, June 1, 1978, reprinted in 17 id. at 546 (1978).

45 Annex III entered into force in 1992. To achieve uniform implementation to the extent possible, IMO states agreed to use the International Maritime Dangerous Goods Code, supra note 42, as the means of implementing Annex III. The code lists some 600 substances as marine pollutants and sets out detailed requirements for their carriage. See Current Report, MARPOLs Annex III to Enter Into Force, Following U.S. Acceptance of Provisions, 14 Int’l Envtl. L. Rep. (BNA) 397 (1991).

46 42 U.S.C. §6938 (1988). Regulations implementing this law appear at 40 C.F.R. §§262.50–.58 (1992). Typically, the U.S. exporter provides EPA’s Office of International Activities with written notification, which is transmitted to the Department of State. The Department cables the information to the Embassy in the importing country, which provides a translated version to that country’s government. The consent or denial returns by the same channel.

47 Agreement of Cooperation Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances, Nov. 12, 1986, U.S.-Mex., TIAS No. 11,269, Annex III to Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area, Aug. 14, 1983, TIAS No. 10,827, 1352 UNTS 67; Agreement Concerning the Transboundary Movement of Hazardous Wastes, Oct. 28, 1986, U.S.-Can., TIAS No. 11,099.

48 Cairo Guidelines and Principles for the Environmentally Sound Management and Disposal of Hazardous Wastes, UNEP/GC/DEC [Governing Council Decision] 14/30 (June 17, 1987).

49 See supra note 7.

50 On the transmittal to, and consideration by, the U.S. Senate of the Convention, see Message from the President of the United States Transmitting the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, with Annexes, Done at Basel on March 22, 1989, in S. Treaty Doc. 5; 102d Cong., 1st Sess. (1991); Senate 1992 Hearing, supra note 23; Report of the Committee on Foreign Relations on the Basel Convention, S. Exec. Rep. No. 36, 102d Cong., 2d Sess. (1992). Having been assured by the executive branch that the United States would not ratify the Convention until implementing legislation was in place, the Senate granted advice and consent to ratification on August 11, 1992. 138 Cong. Rec. S12,292 (daily ed. Aug. 11, 1992).

The Council of the European Community decided to deposit the EC instrument of approval to the Basel Convention, Council Decision 93/98 of 1 February 1993, 1993 O.J. (L 39) 1, and adopted Council Regulation 259/93 of 1 February 1993 on Supervision and Control of Shipments of Waste within, into and out of the European Community, 1993 O.J. (L 30) 1, which will become directly applicable in member states on May 6, 1994. Under the regulation, the export of wastes for disposal from EC member states to non-EC states is prohibited, except for exports to European Free Trade Association states in certain circumstances (Art. 14). Exports of wastes for recovery operations from EC member states to non-EC states are governed by the three-tiered control system adopted by the OECD, infra note 56, if the importing state is a party to the Basel Convention, is a member of the OECD, or has concluded an agreement or arrangement with the exporting state for environmentally sound management of the wastes; otherwise, the export is prohibited (Art. 16). In accordance with the Fourth ACP/EC (Lomé) Convention, supra note 41, all waste exports to ACP countries are prohibited, except for the return of processed wastes to an ACP country of origin (Art. 18).

51 See supra note 8.

52 Such assistance in other areas is not unprecedented. See, e.g., Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 UST 1087, 993 UNTS 243 [hereinafter CITES]; Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 UNTS 231.

53 Hilz, supra note 19, at 113.

54 Id. at 74.

55 Exporting wastes across the border to Canada from the northern United States is sometimes considered more economical than transporting them to other parts of the United States, on the basis of transportation costs alone. See Senate 1992 Hearing, supra note 23, at 50 (environmental documentation submitted by the U.S. Department of State to accompany the Basel Convention).

56 Id. at 19 (statement of Dr. Harvey Alter, U.S. Chamber of Commerce). U.S. imports and exports of precious metal wastes totaled $1.08 billion in 1989, $1.41 billion in 1990, and $1.28 billion in 1992. Id. at 23 (statement of John C. Bullock, International Precious Metals Institute). Maintaining recovery operations was a critical concern of the OECD countries during negotiations of the Basel Convention. Just before it entered into force, OECD countries adopted a three-tiered system of controls (creating “green,” “amber,” and “red” lists) for hazardous wastes destined for recovery or recycling. OECD Council Decision on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations, OECD Doc. C(92)39 (Mar. 30, 1992). This control system deviates from the procedures in the Basel Convention, but is compatible with environmentally sound management of hazardous wastes, and therefore is permissible under Article 11 of the Convention.

57 See Peter H. Sand, International Cooperation: The Environmental Response, in Reserving the Global Environment: The Challenge of Shared Leadership 236, 269 (Jessica Tuchman Mathews ed., 1991) (arguing that alternative mechanisms should be pursued). Increasingly, attention is also being paid to the imposition of sanctions and to techniques for international verification and monitoring of countries’ conduct.

58 Statement by Dr. Mostafa K. Tolba, then Executive Director of UNEP, to a UNEP meeting of senior government officials expert in environmental law, Rio de Janeiro 5 (Oct. 30, 1991) (on file with author).

59 Supra note 48.

60 Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels, Oct. 10, 1989, Doc. ECE/TRANS/79 (the ECE consists of representation from Europe and North America).

61 Supra note 40, Art. 12.

62 The International Maritime Organization is drafting a convention on liability and compensation for damage from hazardous and noxious substances carried by sea. See IMO Legal Committee, Draft International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, IMO Doc. LEG 67/3 (May 18, 1992) [hereinafter Draft HNS Convention].

63 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, June 21, 1993, reprinted in 32 ILM 1228 (1993).

In addition, Article X of the London Dumping Convention, supra note 14, states that the parties will develop procedures for the “assessment of liability and the settlement of disputes regarding dumping”; a conference is scheduled for 1994 to discuss efforts to improve the Convention.

64 Agenda 21, supra note 2, paras. 20.7(b), 20.35.

65 UNEP Basel Convention Interim Secretariat, Note of the Secretariat on Draft Articles of a Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movement of Hazardous Wastes and Their Disposal, Doc. UNEP/CHW.1/5 (July 7, 1992).

66 For a useful topology of approaches to international liability regarding offshore oil development, see David A. Caron, Liability for Transnational Pollution Arising from Offshore Oil Development: A Methodological Approach, 10 Ecology L.Q. 641 (1983).

67 See Sand, supra note 57, at 270.

68 Response from Governments to Questionnaire on Liability and Compensation, Doc. UNEP/CHW/WG.1/INF/1 (May 15, 1990).

69 See text at notes 32–34 supra.

70 For an examination of conflict-of-laws problems in the international setting from the U.S. perspective, see Andreas F. Lowenfeld, International Litigation and Arbitration (1993); Lea Brilmayer & James A. Martin, Conflict of Laws: Cases and Materials 785–860 (3d ed. 1990).

71 See, e.g., 15 U.S.C. §§22, 25 (1988) (antitrust); 15 U.S.C. §§77v, 78aa (securities).

72 For some U.S. courts, the “minimum contacts” test arising from International Shoe Co. v. Washington, 326 U.S. 310 (1945), calls for heightened scrutiny of fairness when a nonresident alien is involved. See Ronan E. Degnan & Mary Kay Kane, The Exercise of Jurisdiction Over and Enforcement of Judgments Against Alien Defendants, 39 Hastings L.J. 799, 805 (1988).

73 International notice and service may be governed by bilateral instruments or multilateral instruments, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 UST 361, 658 UNTS 163.

74 See, e.g., In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, 634 F.Supp. 842 (S.D.N.Y. 1986), modified on appeal, 809 F.2d 195 (2d Cir. 1987) (dismissing to Indian forum claims by Indian victims based on toxic gas leaked from U.S.-owned Indian company); Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

75 See, e.g., Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, as amended, 1990 O.J. (C 189) 1 (harmonizing rules of jurisdiction and procedures for recognition and enforcement of judgments among EC countries); Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 1988 O.J. (L 319) 9 (harmonizing such rules and procedures among EC countries and European Free Trade Area countries).

76 The degree to which these exceptions exist varies according to the internal law of the enforcing state. In the United States, enforcement of foreign judgments is governed not by federal law, but by the laws of the several states. The National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1962 adopted a Uniform Money Foreign Judgments Recognition Act codifying state rules applied by the majority of courts in the United States. 13 U.L.A. 261 (1986). The Uniform Act served as the basis for chapter 8 of the Restatement (Third) of the Foreign Relations Law of the United States, although the Restatement does not limit itself to money judgments. The Restatement asserts that a U.S. court must deny enforcement if: (a) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with due process; or (b) the court that rendered the judgment did not have jurisdiction over the defendant in accordance with the law of the rendering state and certain specified jurisdictional rules. Restatement (Third) of the Foreign Relations Law of the United States §§421, 481(2) (1987) [hereinafter Restatement].

For a survey of various countries’ rules relating to enforcement of foreign judgments, see Enforcement of Foreign Judgments Worldwide (C. Platto ed., 1989) (published by the International Bar Association). For details on the European Community and certain countries, see John Fitzpatrick, Comment, The Lugano Convention and Western European Integration: A Comparative Analysis of Jurisdiction and Judgments in Europe and the United States, 8 Conn. J, Int’l L. 695 (1993); Michael L. Novicoff, Blocking and Clawing Back in the Name of Public Policy: the United Kingdom’s Protection of Private Economic Interests Against Adverse Foreign Adjudications, 7 Nw. J. Int’l L. & Bus. 12 (1985); Peter Hay, Comment, The Recognition and Enforcement of American Money-Judgments in Germanythe 1992 Decision of the German Supreme Court, 40 Am. J. Comp. L. 729 (1992); Michael H. Brenscheidt, The Recognition and Enforcement of Foreign Money Judgments in the Federal Republic of Germany, 11 Int’l Law. 261 (1977); Kurt H. Nadelmann, French Courts Recognize Foreign Money Judgments: One Down and More to Go, 13 Am. J. Comp. L. 72 (1964); Enrique Dahl, Enforcement of American Judgments in Spain, 5 B.U. Int’l L.J. 29 (1987); Philip J. Loree, Jr., Note, The Recognition and Enforcement of United States Judgments in the Canadian Common-Law Provinces: The Problem of in Personam Jurisdiction, 15 Brook. J. Int’l L. 317 (1989); Joost Blom, The Enforcement of Foreign Judgments in Canada, 57 Or. L. Rev. 399 (1978); Jose Daniel Amado, Recognition and Enforcement of Foreign Judgments in Latin American Countries: An Overview and Update, 31 Va. J. Int’l L. 99 (1990); John McDermott, A Survey of Methods for the Enforcement of Foreign Judgments and Foreign Arbitral Awards in the Asia-Pacific Region, 12 Loy. L.A. Int’l & Comp. L.J. 114 (1989); Takao Sawaki, Recognition and Enforcement of Foreign Judgments in Japan, 23 Int’l Law. 29 (1989).

77 Amlon Metals, Inc. v. FMC Corp., 775 F.Supp. 668 (S.D.N.Y. 1991).

78 The District Court for the Southern District of New York found that it had no jurisdiction (1) under the Alien Tort Statute, 28 U.S.C. §1350 (1988), because the complaint contained no clear allegation of a violation of the law of nations, or of a treaty; and (2) under the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. §6972(a)(1)(B) (1988), because it does not provide a remedy for actions causing imminent and substantial endangerment abroad. 775 F.Supp. 668 (S.D.N.Y. 1991). If the United States had been a party to the Basel Convention at the time of the export and the defendant could be shown to have violated the requirements of the Convention for documenting waste exports, a different result might have been reached under the Alien Tort Statute.

One commentator supports extraterritorial application of the U.S. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), infra note 108, to allow foreigners to sue in U.S. courts for exports of hazardous wastes. Peter Obstler, Toward a Working Solution to Global Pollution: Importing CERCLA to Regulate the Export of Hazardous Waste, 16 Yale J. Int’l L. 73 (1991).

79 The interim secretariat became a permanent one in December 1992.

80 Managing Hazardous Wastes: Newsletter of the Basel Convention, No. 3, Apr. 1993, at 4.

81 Basel Convention, supra note 7, Art. 4(4).

82 Id., Art. 9(5).

83 The Bush administration’s implementing legislation, entitled Hazardous and Additional Waste Export and Import Act of 1991, was introduced as H.R. 2398, 102d Cong., 1st Sess., 137 Cong. Rec. H3279 (daily ed. May 20, 1991), and as S. 1082, 102d Cong., 1st Sess., 137 Cong. Rec. S5934 (daily ed. May 15, 1991).

84 Basel Convention, supra note 7, Arts. 13, 16.

85 On diplomatic protection after the “exhaustion of local remedies,” see Elettronica Sicula, S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, 42–48 (July 20); Restatement, supra note 76, §713 comment f & reporters’ note 5; Claim of State Responsibility, 1978 Digest §1, at 1208–17; Claim of State Responsibility, 1977 Digest §1, at 672–74 (referencing relevant ILC commentary); Interhandel Case (Switz. v. U.S.), 1959 ICJ Rep. 6, 27–29 (Judgment on preliminary objections of Mar. 21); The Ambatielos Claim (Greece v. UK), 12 R.I.A.A. 83 (1956); 3 Marjorie M. Whiteman, Damages in International Law 1558–59 (1943).

86 Basel Convention, supra note 7, Art. 4(1).

87 Id., Art. 4(2)(e).

88 Id., Art. 4(2)(c), 4(7)(a).

89 Cases typically referred to on the question of international environmental liability include Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1907 (compromis establishing tribunal), 1911, 1965 (1941) (finding that no state has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another; under Article IV of the compromis, id. at 1908, the tribunal was applying “law and practice followed in dealing with cognate questions in the United States of America as well as international law and practice”); Gut Dam Arbitration/Settlement (U.S. v. Can.), reprinted in 4 ILM 468 (1965) (compromis establishing tribunal), 8 ILM 118 (1969) (U.S. agent’s final report on the tribunal, which found that under the U.S.-Canada agreement to construct the dam, Canada was liable to compensate U.S. citizens for damage caused by the dam); Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4 (Apr. 9) (finding Albania responsible for damage caused to the United Kingdom for activities undertaken within Albanian territory of which it knew or ought to have known but failed to disclose to the United Kingdom).

90 Stockholm Declaration, supra note 3, Principle 21. Principle 22 requires states to cooperate in the further development of international law on liability and compensation for victims of pollution and extraterritorial damage. See also Restatement, supra note 76, §601:

A state is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control

(a) conform to generally accepted international rules and standards for the prevention, reduction, and control of injury to the environment of another state or of areas beyond the limits of national jurisdiction; and

(b) are conducted so as not to cause significant injury to the environment of another state or of areas beyond the limits of national jurisdiction.

91 Günther Handl, State Liability for Accidental Transnational Environmental Damage by Private Persons, 74 AJIL 525, 527 (1980).

92 Id. at 564; Pierre-Marie Dupuy, La Responsabilité Internationale des Etats pour les domnages d’origine technologique et Industrielle (1976); L. F. E. Goldie, Liability for Damage and the Progressive Development of International Law, 14 Int’l & Comp. L.Q. 1189, 1200–07 (1965). But see Riccardo Pisillo-Mazzeschi, Forms of International Responsibility for Environmental Harm, in International Responsibility for Environmental Harm 15, 28 (Francesco Francioni & Tullio Scovazzi eds., 1991); Günther Doeker & Thomas Gehring, Private or International Liability for Transnational Environmental DamageThe Precedent of Conventional Liability Regimes, 2 J. Envtl. L. 1 (1990). According to Doeker & Gehring:

It is … not yet clear, in the absence of treaties, that states can be held absolutely or strictly liable for their damaging activities, even if they engage in ultrahazardous enterprises, or those with a foreseeable risk of damage, such as operating nuclear or other power stations, using ships to transport oil and other hazardous or noxious cargoes, disposing of toxic wastes, exploiting seabed resources or outer space etc.

Id. at 2.

93 Basel Convention, supra note 7, Art. 20 & Ann. VI.

94 Id., Art. 4(2).

95 Since 1978, the UN International Law Commission has been engaged in an effort to codify principles of state liability for internationally lawful acts (e.g., operation of a nuclear power plant) that have injurious transboundary consequences. A state’s liability in this regard is referred to as a “primary obligation,” in that the duty of reparation is not dependent on the breach of some other obligation. Although the ILC’s effort initially contemplated various forms of transboundary injuries —such as economic and monetary injuries—it was later limited to environmental matters—i.e., activities with physical transboundary consequences affecting the use or enjoyment of territory or other areas within the control of states. To date, there have been nine reports produced by Special Rapporteur Julio Barboza, the most recent of which are: Report on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by Law, UN Doc. A/CN.4/450 (1993) (ninth report); UN Doc. A/CN.4/443 (1992) (eighth report); UN Doc. A/CN.4/437 (1991) (seventh report).

This effort, which has not yet finalized any draft articles, has its supporters and its critics. See, e.g., Michael B. Akehurst, International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, 16 Neth. Y.B. Int’l L. 3 (1985); Alan E. Boyle, State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?, 39 Int’l & Comp. L.Q. 1 (1990); Ian Brownlie, System of the Law of Nations: State Responsibility (Part I) 49–50 (1983); Daniel Barstow Magraw, Transboundary Harm: The International Law Commission’s Study of “International Liability,” 80 AJIL 305 (1986). For a highly critical view of the ILC’s work on state responsibility generally, see Philip Allott, State Responsibility and the Unmaking of International Law, 29 Harv. Int’l L.J. 1, 1 (1988) (“There is reason to believe that the Commission’s long and laborious work on state responsibility is doing serious long-term damage to international law and international society.”).

96 See Developments in the Law: International Environmental Law, 104 Harv. L. Rev. 1484, 1499–1500 (1991) (“Publicists” efforts at codifying standards of conduct notwithstanding, international liability remains an empty abstraction”); see also C. Wilfred Jenks, The Prospects of International Adjudication 225–315 (1964) (assessing PCIJ and ICJ decisions regarding the proof necessary to establish customary rules and general principles of international law).

97 See, e.g., Sanford E. Gaines, International Principles for Transnational Environmental Liability: Can Developments in Municipal Law Help Break the Impasse?, 30 Harv. Int’l L.J. 311, 313 (1989); Developments in the Law: International Environmental Law, supra note 96, at 1506.

98 For instance, the general principle expressed in Corfu Channel, 1949 ICJ Rep. 4, and similar cases, that a state may not use its territory in a manner that causes harm to another state is often ascribed greater significance than appears warranted. A central feature of Corfu Channel was not the act of damage, but rather Albania’s failure to warn or give notice to the United Kingdom. Id. at 22. See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 112 (June 27). Where the damaged country has not only received notice but consented to the activity giving rise to the damage, the liability equation changes dramatically.

99 See, e.g., Karen A. Mingst, Evaluating Public and Private Approaches to International Solutions to Acid Rain Pollution, 22 Nat. Resources J. 5, 13 (1982).

100 Even extensive publicity, such as attended the Chernobyl accident in the Soviet Union, may not impel states to press international liability claims. See Günther Handl, Transboundary Nuclear Accidents: The Post-Chernobyl Multilateral Legislative Agenda, 15 Ecology L.Q. 203, 222–24 (1988).

101 For a brief discussion of the “soft law” option in international law, and references to related literature, see Geoffrey Palmer, New Ways to Make International Environmental Law, 86 AJIL 259, 269–70 (1992).

102 The Cairo Guidelines, supra note 48, provide in paragraph 29:

States should ensure that provision is made in their national laws and regulations for (a) liability, (b) insurance and (c) compensation and/or other remedies for damage arising from the management of hazardous wastes, and they should take such steps as are necessary to ensure the compatibility and, where appropriate, the harmonization of such laws and regulations.

103 With respect to hazardous substances generally, see OECD Governing Council Recommendation on Information Exchange Related to the Export of Banned and Severely Restricted Chemicals, OECD Doc. C(84)37 (Apr. 4, 1984); Cairo Guidelines, supra note 48; London Guidelines for the Exchange of Information on Chemicals in International Trade, as amended, Doc. UNEP/GC/DEC 15/30 (May 25, 1989); FAO International Code of Conduct on the Distribution and Use of Pesticides, 23 FAO/CONF/RES 10/85 (Nov. 28, 1985) (amended in 1989 to include prior informed consent). Specifically with respect to liability and compensation claims, see OECD Governing Council Recommendation for the Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, OECD Doc. C(77)28 (May 23, 1977).

104 Convention on the Protection of the Environment between Denmark, Finland, Norway, and Sweden, Feb. 19, 1974, 1092 UNTS 279, reprinted in 13 ILM 591 (1974). The Convention entered into force on May 10, 1976.

105 See p. 56 infra.

106 See text at and note 76 supra.

107 Stephen C. McCaffrey, Private Remedies for Transfrontier Pollution Damage in Canada and the United States: A Comparative Study, 19 U.W. Ont. L. Rev. 35 (1981).

108 In the United States, the statutory or common laws of many of the states permit recovery by the government of “natural resources” damages, as do certain federal statutes, such as the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9607(a)(4)(C) (1988), the Clean Water Act, 33 U.S.C. §1321 (1988), and the Oil Pollution Act of 1990, 33 U.S.C. §2706 (Supp. II 1990). Yet means of determining the value of natural resources can vary considerably. See Frank B. Cross, Natural Resources Damage Valuation, 42 Vand. L. Rev. 269 (1989).

109 See GAO, International Environment: International Agreements Are Not Well Monitored, GAO/RCED-92-43 (1992) (criticizing the lack of reporting by countries on their compliance with eight major international environmental agreements).

110 Doeker & Gehring, supra note 92, at 16.

111 Article 6(11) of the Basel Convention, supra note 7, states that transboundary movements of hazardous wastes “shall be covered by insurance, bond or other guarantee as may be required by the State of import or any State of transit which is a Party.”

112 International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 UNTS 3; amended by Protocol of Nov. 19, 1976, reprinted in 16 ILM 617 (1977) (revising unit of account); amended by Protocol of May 25, 1984, reprinted in 15 J. Mar. L. & Com. 613 (1984) (raising limits of compensation payable). This Convention is associated with an international fund scheme, see text at and notes 138–40 infra. There are currently 71 parties to the 1969 CLC (the United States is not a party).

Another convention is designed to ensure compensation for victims of oil pollution from offshore operations. Convention on Civil Liability for Oil Pollution Damage from Exploitation of Seabed Mineral Resources, Dec. 17, 1976, reprinted in 16 ILM 1450 (1977). Operators are strictly liable for oil pollution damage up to set limits; suits may be brought in courts of the licensing state or of any party in which damage occurred. The Convention is restricted to areas of the North Sea, Baltic Sea and North Atlantic. So far, no state has ratified it, perhaps because of the establishment for North Sea offshore operations of a voluntary compensation scheme, the “Oil Pollution Liability Agreement,” which provides more compensation.

The development of the oil pollution conventions has been influenced by other voluntary liability and compensation schemes. The Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution, Jan. 7, 1969, reprinted in 8 ILM 497 (1969) (TOVALOP) (amended several times), provides for owners’ liability parallel to liability under the 1969 CLC. The Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution, Jan. 17, 1971, reprinted in 10 ILM 137 (1971) (also amended several times), is similar to the fund scheme associated with the 1969 CLC, infra notes 138–40, and provides compensation supplementary to that under TOVALOP. To date, no similar scheme has developed among hazardous wastes exporters.

113 Supra note 112.

114 Id., Art. 10.

115 The “Paris Convention” regime was developed by the OECD and thus is not global in scope. It consists of: Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 UNTS 251, reprinted in 55 AJIL 1082 (1960) (amended in 1964, 1968 & 1982) (Paris Convention); Convention Supplementary to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy, Jan. 31, 1963, reprinted in 2 ILM 685 (1963) (amended in 1964 & 1982) (Supplementary Convention). The Paris Convention channels liability to the operator of a nuclear installation, strictly and exclusively, for nuclear damage arising from an incident. The operator must maintain insurance or other financial security. There is a cap on financial liability, which may be changed by national laws so long as it stays above a set minimum. Suits against the operator must be brought in a court in the state where the nuclear installation is situated. The Supplementary Convention provides another layer of compensation to be paid from public funds of the state where the installation is situated. It also provides a third layer of compensation financed by public funds of all the states party to the regime. The same court allocates the funds for all three layers. There are currently 14 states party to the Paris Convention (11 are also parties to the Supplementary Convention), all of which are Western European members of the OECD (the United States is not a party).

The “Vienna Convention” regime on liability for nuclear damage was developed by the International Atomic Energy Agency and is global in scope. It consists of: Convention on Civil Liability for Nuclear Damage, May 21, 1963, 1063 UNTS 265, reprinted in 2 ILM at 727; Optional Protocol Relating to the Compulsory Settlement of Disputes, May 21, 1963. The Vienna Convention channels liability for nuclear damage to the operator of the installation, absolutely and exclusively. Unless it is a state, the operator must maintain insurance or other financial security. States that license nuclear operators guarantee payment of compensation beyond what is available from insurance. States may impose a cap on financial liability, which must be above a set minimum. Suits against the operator must be brought in a court in the state where the installation is situated. Currently, 14 states are party to the regime; several have no nuclear installations (the United States is not a party).

These two regimes are now tied together in the Joint Protocol Relating to the Application of the Vienna and the Paris Conventions of 21 September 1988, reprinted in 42 Nuclear L. Bull. 56 (1988). So far no serious nuclear incident has occurred in the territorial jurisdiction of the regimes that would trigger liability and compensation.

In addition, the Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, Dec. 17, 1971, reprinted in 10 ILM 130 (1971), was concluded even though operators were already liable under the Paris and Vienna Convention regimes. The central purpose of the 1971 Convention was to make the operator exclusively liable and thus eliminate the financial exposure of shipowners under traditional maritime law, which would have impeded the carriage of nuclear material. There are currently 14 parties to this Convention, most of which are Western European (the United States is not a party). The Convention on the Liability of Operators of Nuclear Ships, May 25, 1962, reprinted in 57 AJIL 268 (1962), sought to create uniform liability rules for operators of nuclear ships. This Convention would enter into force if just two states deposited instruments of ratification. But nuclear propulsion never became commercially feasible for private vessels and those states using nuclear-propelled warships refuse to accept application of an essentially private law regime to their sovereign vessels.

116 Jean-Marie Devos, Liability of Transactors for the Movement of Hazardous Wastes, in Transfrontier Movements of Hazardous Wastes 249, 250 (OECD 1985):

Apart from its deliberately exceptional nature, the liability regime for nuclear damage applies within a particularly restricted context involving a very limited number of parties. Those parties are, in most cases, public or semi-public agencies and thus in the last resort liability is borne by the authorities or by the State as such. None of the above elements are present in the case of operations for the movement or disposal of waste.

117 Supra note 112.

118 Supra note 60. Under this Convention, the carrier (i.e., the registered owner or the operator of the road vehicle, inland vessel or railway) is liable for damage caused during the transport, subject to limits. Other claims outside the Convention may not be brought against the carrier or any other person engaged in the transport. This Convention has not yet entered into force.

119 Draft HNS Convention, supra note 62, Art. 4.

120 See Rüdiger Lummert, Liability of the Generator and the Disposer of Hazardous Wastes, in Transfrontier Movements of Hazardous Wastes, supra note 116, at 230, 231.

121 Arts. 3 & 6 of the Paris Convention, and Art. 2 of the Vienna Convention, supra note 115.

122 Article 3 of the 1969 CLC, supra note 112, forecloses actions against employees and representatives of the shipowner; Article 4 of the 1984 Protocol to that Convention, supra note 112, forecloses actions against several other types of potential parties, such as bareboat charterers and persons involved in salvage operations or preventive measures. Other entities may still be sued. For instance, in the litigation following the 1978 grounding of the supertanker Amoco Cadiz in French territorial waters, those exposed to liability included not only the shipowner (Amoco Transport Co.), but also the organization in charge of operating the Amoco Cadiz (Amoco International Oil Co.) and the parent company of both the shipowner and the operator (Standard Oil Co.). Since the United States is not a party to the 1969 CLC, the U.S. court in that case applied French law, although it maintained that, had the 1969 CLC been applied, the result would have been the same. In re Oil Spill by the Amoco Cadiz Off the Coast of France on March 16, 1978, 1984 Am. Mar. Cases 2123, 2190–91 (N.D. 111.). After 14 years, the litigation ended in January 1992 with a total award to the claimants of $205 million. In re Oil Spill by the Amoco Cadiz Off the Coast of France on March 16, 1978, 954 F.2d 1279 (7th Cir. 1992).

123 See text at note 138 infra.

124 42 U.S.C. §§9601–9675(c) (1988).

125 Both governmental and nongovernmental entities may respond. However, a private cause of action to recover the “necessary cost of response” is limited to recovery of response costs “consistent with the national contingency plan,” the federal Government’s general guidelines for actions and remedies for releases of hazardous substances. 42 U.S.C. §9607(a)(4)(B) (1988); 40 C.F.R. §300.3(2) (1992).

126 42 U.S.C. §§9604, 9607 (1988).

127 O’Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989); United States v. Monsanto, 858 F.2d 160 (4th Cir. 1988); United States v. Chem-Dyne Corp., 572 F.Supp. 802 (S.D. Ohio 1983).

128 E. Donald Elliot, Superfund: EPA Success, National Debacle?, Nat. Resources & Env’t, Winter 1992, at 11, 12 (former EPA General Counsel noting that for each cleanup site, “a total of twenty-eight calendar quarters (not months), or seven full years, is spent on a complex, legalistic, and bureaucratic process of extended study and assessment of the site; review, negotiation, and compilation of the legal record; and design of the remedy”) (emphasis in original); see Mazmanian & Morell, supra note 11, at 27–51.

129 GAO, Hazardous Waste: Much Work Remains to Accelerate Facility Cleanups, GAO/ RCED-93-15, at 18–19 (1993). The delays are not solely due to the CERCLA liability regime. Even in the best of circumstances, defining the nature and extent of the contamination and determining appropriate action can take years. Id. at 3–4.

130 Keith Schneider, New Debate Over the Environment: Is U.S. Policy Misguided?, N.Y. Times, Mar. 21, 1993, at A30 (noting that programs to clean up toxic or radioactive wastes will consume more than one-quarter of the roughly $38 billion spent by the U.S. Government for all environmental protection in 1993); Jan P. Acton, Lloyd S. Dixon, Deborah Drezner, Laura Hill & Steven Mckenney, Superfund and Transaction Costs: The Experiences of Insurers and Very Large Industrial Firms (Rand 1992).

131 See Richard A. Epstein, Two Fallacies in the Law of Joint Torts, 73 Geo. L.J. 1377, 1386 (1985):

The vice of current law is that it creates a discontinuity in the anticipated costs facing the firm. Where pollution is zero, liability is zero; but where pollution is infinitesimal, liability is then complete. In such a world, it becomes extremely difficult to choose the right course of private behavior. Why worry about taking precautions if the benefit will go to other users of the waste site? Instead, the optimal strategy, which some firms will follow, is to save by reducing precaution costs. Here the savings that any one firm achieves could be substantial, and the loss that it creates will be borne not by it, but by other firms.

132 Supra note 62.

133 The number of insurers writing pollution insurance for hazardous waste owners and operators, the number of policies written, and the total pollution liability coverage decreased dramatically in the United States during the 1980s. At the same time, the average premium for such insurance rose as much as 11 times from 1982 to 1988. GAO, Hazardous Waste: The Cost and Availability of Pollution Insurance, GAO/PEMB-89-6, at 3 (1988).

134 See Kenneth S. Abraham, Environmental Liability and the Limits of Insurance, 88 Colum. L. Rev. 942, 957–60 (1988) (discussing impact of this U.S. approach, as well as retroactivity provisions).

135 Doeker & Gehring, supra note 92, at 7 (“States with a strong private-owned industry (primarily western states), are still not prepared to accept liability for damage arising out of private activities under their control.”). However, in the context of liability for nuclear damage, supra note 115, the state licensing the operator does provide funds for compensation under the second layer.

136 See text at note 174 infra.

137 For example, the U.S. failure to ratify the 1969 CLC and its subsequent amendments, supra note 112, was largely due to congressional reluctance to accept limitations on financial recovery, which do not exist in the tort laws of the several states of the United States.

138 Dec. 18, 1971, 1110 UNTS 57, reprinted in 11 ILM 284 (1972); amended by Protocol of Nov. 19, 1976, reprinted in 16 ILM 621 (1977) (revising the unit of account); amended by Protocol of May 25, 1984, reprinted in 15 J. Mar. L. & Com. 623 (1984) (raising the limits of compensation payable). Any state that is a party to this Convention must also be a party to the 1969 CLC. There are currently 47 parties to the 1971 Convention (the United States is not a party).

139 The annual costs of the secretariat range from $750,000 to $900,000 and are paid from the oil fund. See The Effectiveness of International Environmental Agreements 421 (Peter H. Sand ed., 1992).

140 Id. at 415.

141 Supra note 62.

142 UNEP Basel Convention Interim Secretariat, supra note 65; UNEP, Note of the Executive Director on the Establishment of an International Fund for Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, Doc. UNEP/CHW.1/11 (Sept. 1, 1992).

143 42 U.S.C. §9611(a) (1988).

144 See Michael Weisskopf, Administrative Costs Drain “Superfund,” Wash. Post, June 19, 1991, at Al (according to information obtained from the EPA, nearly one-third of the $200 million spent by the U.S. Government between 1988 and mid-1991 to clean up hazardous waste sites has gone to administrative expenses); see generally Jan P. Acton, Understanding Superfund: A Progress Report (Rand 1989).

145 Mar. 29, 1972, 24 UST 2389, 961 UNTS 187. This Convention has some 100 parties, including the United States.

146 Id., Art. 5.

147 Id., Art. 6.

148 W., Art. 14.

149 Id., Art. 19.

150 This is the approach taken on a noncompulsory basis in the Basel Convention, supra note 7, Ann. VI, Art. 3.

151 UN Convention on the Law of the Sea, supra note 16, pt. XV.

152 Id., Art. 298 (excepted categories include disputes concerning military activities and those in respect of which the Security Council is exercising its functions).

153 Id., Arts. 286 & 293. The potential forums are (1) the International Tribunal for the Law of the Sea; (2) the International Court of Justice; (3) an arbitral tribunal constituted under Annex VII of the Convention; and (4) for certain kinds of disputes, a special arbitral tribunal constituted under Annex VIII of the Convention.

154 See text following notes 105 & 115 supra.

155 See Doeker & Gehring, supra note 92, at 16 (“States seem to accept a fully-fledged international liability only in areas where issues of global and military importance prevail over economic and civil aspects. In areas where economic aspects prevail they obviously favour private solutions of the liability problem.”).

156 See pp. 44—45 supra.

157 For a discussion of UNCED and prospects for the future, see Agenda 21 and Unced Proceedings: The Road to Rio (Nicholas A. Robinson, Parvez Hassan & Francoise Burhenne-Guilmin eds., 1992); Rio Conference on Environment and Development, 22 Envtl. Pol’y & L. 204 (1992); Richard N. Gardner, Negotiating Survival: Four Priorities After Rio (1992).

158 The Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, TIAS No. 10,541, reprinted in 18 ILM 1442 (1979), has led to protocols on monitoring emissions of air pollutants in Europe, and on limiting sulfur and nitrogen emissions.

169 Convention for the Protection of the Ozone Layer, Mar. 22, 1985, TIAS No. 11,097, reprinted in 26 ILM 1529 (1987); Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, reprinted in id. at 1550; Adjustments and Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer, June 29, 1990, reprinted in 30 ILM 537 (1991). On scientific evidence of the success of the agreements, see Boyce Rensberger, After 2000, Outlook for the Ozone Layer Looks Good,Wash. Post, Apr. 15, 1993, at Al.

160 The 1986 ban was imposed pursuant to a 1982 agreement by the International Whaling Commission.

161 The ivory trade ban was a product of CITES, supra note 52.

162 UNEP’s overall program has led to programs on ten seas that are together shared by some 120 states. The programs provide for data gathering, cooperative long-term planning, and the negotiation of binding agreements covering an array of issues. See Peter H. Sand, Marine Environment Law in the United Nations Environment Programme (1988).

163 House 1988 Hearing, supra note 29, at 16—27 (statement of John C. Martin, EPA Inspector General).

164 See Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity 80 (1989) (arguing that not only has international practice shown that compensation is rarely given, but that it is difficult to quantify damage to the natural environment and to assess damages to individuals and groups, in particular future generations).

165 For a discussion of how different institutional mechanisms can be used in this regard, see W. Kip Viscusi, Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety, 6 Yale J. Reg. 65 (1989); see also Steven Shavell, Liability for Harm vs. Regulation of Safety, 13 Legal Stud. 357 (1984) (arguing that regulatory approach is better than liability approach where the government is in a better position to assess the risk, when private parties may not be able to provide compensation for the full amount of the harm, and when private parties will likely escape suit for the harm they produce).

166 See David J. Bederman, Comment, Dead in the Water: International Law, Diplomacy, and Compensation for Chemical Pollution at Sea, 26 Va. J. Int’l L. 485 (1986).

167 The 1993 survey conducted by the Basel secretariat received responses from only 19 parties. Ten parties reported no incidents of harm from transboundary movements. One reported three minor incidents of harm, which were paid for by the exporter. One party reported an incident of harm that required it to spend $400,000, but did not indicate whether efforts were made to recoup the cost from the exporter or others responsible for the movement. The remaining parties indicated a lack of information or did not respond to the survey. UNEP Basel Secretariat, Report on the Factual Basis Received from the Parties to the Basel Convention on the Subject of Liability and Compensation for Damage Resulting from the Transboundary Movements of Hazardous Wastes and Their Disposal, Doc. UNEP/CHW.1/WG. 1/1/2 (1993).

168 A U.S. government official noted in testimony to Congress:

I am concerned about the possibility of exporting hazardous waste to a country which does not manage it safely, or may not respond effectively to an accident. Prior consent of the government of the receiving country would not protect us from receiving some portion of the blame for the situation. We would almost certainly be expected to help solve the problem, perhaps at a substantial cost.

House 1988 Hearing, supra note 29, at 259, 266 (statement of Frederick M. Bernthal, Assistant Secretary of State).

169 The legislation introduced by the Bush administration, supra note 83, was not passed because it was linked to the authorization of appropriations for the Resource Conservation and Recovery Act, a separate issue that was never resolved during that administration. The Clinton administration is expected to propose similar legislation to implement the Basel Convention in 1994.

170 It is possible for an export from state A to state B to cause damage to state C, even where C was not transited. Whether such a circumstance is frequent enough that it should be taken into account by a liability regime is another issue on which adequate data are lacking.

171 Basel Convention, supra note 7, Art. 6. Hence, this is not the same situation as when the cattle raiser inflicts uncompensated harm on his neighbor’s crops. See Ronald H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). We are starting from a position of contractually allocated benefits.

172 Guido Calabresi, The Costs of Accidents—A Legal and Economic Analysis 135–52 (1970).

173 Handl, supra note 91, at 531–35.

174 On creating economic incentives for waste management, both domestic and international, see All That Remains: A Survey of Waste and the Environment, Economist, May 29, 1993, at 58.

175 The tension between international environmental controls and international trade is now a major issue in foreign relations, as is the impact of national environmental controls on global trade competitiveness. See, e.g., Agora: Trade and Environment, 86 AJIL 700 (1992) (contrasting views on international approaches to environmentally sustainable development); Richard B. Stewart, Environmental Regulation and International Competitiveness, 102 Yale L.J. 2039 (1993) (describing how U.S. firms seeking to compete internationally are disadvantaged by the open-ended sweep of U.S. environmental liability, and advocating more innovative, flexible regulatory tools, such as market-based mechanisms and environmental contracting).

176 On cooperation by powerful states with less-powerful states due to “complex interdependence,” see Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (1984); Robert O. Keohane & Joseph Nye, Power and Interdependence: World Politics in Transition (2d ed. 1989) (arguing that under conditions of complex interdependence, powerful states are likely to find themselves strategically constrained in relation to other less-powerful nations because of the proliferation and diversity of the relations between them). For a succinct discussion, see Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335, 342–54 (1989). For application of this theory to U.S.-Mexico hazardous wastes management, see Stephen P. Mumme, Complex Interdependence and Hazardous Waste Management Along the U.S.-Mexico Border, in Dimensions of Hazardous Waste Politics and Policy 223 (Charles E. Davis & James P. Lester eds., 1988). Some observers, however, believe that the strongest international regimes, including for the hazardous wastes trade, are only developed on a nonglobal level. See Gareth Porter & Janet Welsh Brown, Global Environmental Politics 87 (1991).

177 The “exporter” could be the generator. The term here is used in the same sense as in the Basel Convention, to mean any person under the jurisdiction of the state of export who arranges for hazardous wastes to be exported. Basel Convention, supra note 7, Art. 2(15).

178 Supra note 62.

179 See text at and note 25 supra.

180 Basel Convention, supra note 7, Art. 4(3).

181 1969 CLC, supra note 112, Art. 5(2).

182 Id., Arts. 5(3), 6(1).

183 The IJC was established under Article VII of the Treaty Relating to the Boundary Waters and Questions Arising Along the Boundary, Jan. 11, 1909, U.S.-Can., 36 Stat. 2448, 12 Bevans 319 (entered into force May 5, 1910).

184 For the United States, see section 7004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6974 (1988). For OECD countries generally, see OECD Council Decision/Recommendation on Provision of Information to the Public and Public Participation in Decision Making Processes Related to Prevention of, and Response to, Accidents Involving Hazardous Substances, OECD Doc. C(88)85 (July 8, 1988), reprinted in 28 ILM 277 (1989).

185 Agenda 21, supra note 2, chs. 8, 28, 36, 40.

186 Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, reprinted in 30 ILM 802 (1991).

187 See supra note 111.

188 UNEP, Register of International Treaties and Other Agreements in the Field of the Environment, Doc. UNEP/GC.16/Inf.4 (1991).

* This article was written during a leave of absence, with support from the Council on Foreign Relations and the University of Virginia. The views expressed herein are those of the author and do not necessarily reflect the views of the U.S. Government. The author acknowledges the helpful critiques of the Journal’s anonymous referees.

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Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes

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