Introduction

This chapter explores civil liability doctrines in United States law relevant to an international liability regime for war-caused environmental damage. Those doctrines come from two separate but related fields: the common law of torts and the statutory law of environmental protection. To varying degrees they both shift the burden of environmental damage from innocent or random victims to those engaging in or benefiting from the damage-causing activity. In environmental law circles, this is often called the “polluter pays” principle. Clearly, neither set of doctrines was designed to provide compensation for war-caused environmental damages. Moreover, their use for that purpose would have to contend with countervailing doctrines of sovereign immunity and justification. Nevertheless, the principles behind the doctrines – deterrence of damage-causing conduct, provision of fairness between those damaged and those damaging, and maximization of public wealth – may be appropriate as a starting point from which to devise such an international regime. A treaty establishing an international regime could deal with the sovereign immunity and justification defenses.

While principles behind tort and pollution control legal doctrines may be relevant underpinnings for an international compensation regime for war-caused injury, this chapter concludes that another concept developed in United States environmental statutes provides the most practical alternative: a remediation fund derived from assessments on weapons, ammunition, and other war material. Such assessments could be on a sliding scale, with proportionately higher charges on weapons with the greatest potential to damage the environment. Such a mechanism would avoid much of the fact-finding inherent in most tort law, the regulatory rigidity of pollution control law, and the high transaction costs of both regimes.