¹ With respect to terminology, in comparison to State responsibility, ‘international liability refers more generally to mechanisms for compensating and otherwise remedying harm caused by states or other actors, whether or not the harm resulted from the breach of an international obligation’. See Berwick, TA ‘Responsibility and Liability for Environmental Damage: A Roadmap for International Environmental Regimes’ (1998) 10 Georgetown Int'l Envtl L Rev 257, at 259.Google Scholar

² Note that the goal of this contribution is to tease out themes and issues, rather than to offer a detailed review of various liability regimes.Google Scholar

³ See Chorzow Factory case, [1928] PCIJ Rep, Ser A, No 17.Google Scholar

⁴ For an overview see Brunnée, J ‘The Responsibility of States for Environmental Harm in a Multinational Context—Problems and Trends’ (1993) 34 Cahiers de Droit 825.Google Scholar

⁵ See Bodansky, D and Crook, JR ‘Symposium: The ILC's State Responsibility Articles—Introduction and Overview’ (2002) 96 AJIL 773, at 777.Google ScholarSee also Hafner, G and Pearson, HL ‘Environmental Issues in the Work of the ILC’ (2000) 11 Yearbook of Int'l Env Law 3, at 15–23.Google Scholar

⁶ Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, at 43, UN Doc A/56/10 (2001); available at <http://www.un.org/law/ilc/reports/2001/2001report.htm> (last visited 25 Sept 2003) [hereinafter State Responsibility Draft].+(last+visited+25+Sept+2003)+[hereinafter+State+Responsibility+Draft].>Google Scholar

⁷ UN GA Res 56/83, para 3 (12 Dec 2001). For a detailed discussion of the considerations behind this approach, see DD Caron ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’ (2002) 96 AJIL 857, at 861–6.Google Scholar

⁸ For an overview, see Birnie, P and Boyle, AInternational Law and the Environment (2nd ednOxfordOUP 2002), at 181–200.Google Scholar

⁹ See Hanqin, XTransboundary Damage in International Law (CambridgeCUP 2003), at 286.Google Scholar

¹⁰ See, in particular, Trail Smelter Arbitration (1931–1941) 3 RIAA 1905;Google ScholarLake Lanoux Arbitration, (1957) 12 RIAA 281;Google ScholarCosmos 954 Claim (1979) 18 ILM 899;Google ScholarCase Concerning the Gabcikovo-Nagymaros Project [1997] ICJ Rep 7;Google ScholarNuclear Tests cases [1973] ICJ Rep 99 (Interim Measures), [1974] ICJ Rep 253 (Merits);Google ScholarAdvisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 66.Google Scholar

¹¹ See Barcelona Traction case [1970] 1 ICJ Rep 3;Google ScholarState Responsibility Draft, above n 6, Arts 42, 48.Google ScholarFor a discussion, see Peel, J ‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context’ (2001) 10 RECIEL 2.Google Scholar

¹² As Birnie, and Boyle, , above n 8, at 192, suggest, the answer to this question depends in part on the underlying primary rules.Google ScholarSee also Boyle, A ‘Reparation for Environmental Damage in International Law: Some Preliminary Problems’, in Bowman, M and Boyle, A (eds) Environmental Damage in International and Comparative Law (OxfordOUP 2002) 17.Google Scholar

¹³ Scovazzi, T ‘State Responsibility for Environmental Harm’ (2001) 12 Yearbook of Int'l Env Law 43, at 51.Google Scholar

¹⁴ Consider in this context the uphill battle that the plans by Tuvalu to sue Australia for its failure to address climate change would face. See BBC News Online, ‘Tiny Pacific Nation Takes on Australia’ available at <http://news.bbc.co.Uk/2/low/asia-pacific/1854118.stm> (last visited 26 Sept 2003).+(last+visited+26+Sept+2003).>Google Scholar

¹⁵ See Bodansky, D ‘Customary (and not so Customary) International Environmental Law’ (1995) 3 Indiana Journal of Global Legal Studies 105.Google Scholar

¹⁶ Scovazzi, , above n 13, at 55.Google Scholar

¹⁷ See Birnie, and Boyle, , above n 8, at 189.Google Scholar

¹⁸ This all said, it must be emphasized that the quest for clarification of the law of State responsibility is nonetheless important. For the time being, its main contribution may not be where one would expect it—in the facilitation of interstate claims. Rather, it may be found in the progressive strengthening of the conceptual structure of international law. Such structural improvements will progressively shift the parameters of international environmental law, and progressively strengthen the hands of States seeking to negotiate solutions to environmental concerns.Google Scholar

¹⁹ While the topic was cast in general terms, transboundary environmental harm quickly emerged as a central issue. See Hafner, and Pearson, , above n 5, at 23.Google Scholar

²⁰ Ibid, at 23–4.

²¹ See Boyle, A ‘State Responsibility and Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?’ (1990) 39 ICLQ 1.CrossRefGoogle ScholarDupuy, P-M ‘The International Law of State Responsibility: Revolution or Evolution?’ (1989) 11 Mich J Int'l L 105, at 113.Google Scholar

²² Ibid, at 109–12.

²³ Ibid, at 117; Handl, G ‘Liability as an Obligation Established as a Primary Rule of International Law: Some Basic Reflections on the International Law Commission's Work,’ (1985) 16 Netherlands Int'l L J 49, at 56–9;Google ScholarBirnie, and Boyle, , above n 8, at 182.Google Scholar

²⁴ See Rao, PSFirst report on the legal regime for allocation of loss in case of transboundary harm arising out of hazardous activities, UN Doc A/CN.4/531 (21 Mar 2003), para 33;Google ScholarHafner, and Pearson, , above n 5, at 25.Google Scholar

²⁵ The UN General Assembly took note of the Articles, and asked the ILC to proceed with its work on liability. See ibid, para 36.

²⁶ See ibid, para 24 (‘the trend of requiring compensation is pragmatic rather than grounded in a consistent concept of liability’), and para 37 (concluding that the Commission would ‘better deal with the allocation of loss among different actors involved’).

²⁷ Ibid, para 16.

²⁸ Ibid, para 3.

²⁹ Ibid, para 114.

³⁰ Ibid, para 152.

³¹ See Liability and Compensation Regimes Related to Environmental Damage: Review by UNEP Secretariat (2002), at 15; available at <http://www.unep.org/DEPI/LiabilityandCommpensation.asp> (last visited 7 Oct 2003).+(last+visited+7+Oct+2003).>Google Scholar

³² Lugano Convention, reprinted in (1993) 32 ILM 1228.Google Scholar

³³ However, the convention does provide for a number of defences to liability. Ibid, Art 8.

³⁴ Ibid, Art 12.

³⁵ The fact that the Lugano Convention has not entered into force is particularly striking given that it requires only three ratifications to do so. See Daniel, A ‘Civil Liability Regimes as a Complement to Multilateral Environmental Agreements: Sound International Policy or False Comfort?’ (2003) RECIEL 225, at 227.Google Scholar

³⁶ See Gehring, T and Jachtenfuchs, M ‘Civil Liability for Transboundary Environmental Damage: Towards a General Liability Regime’ (1999) 14 Eur J Int'l L 1.Google Scholar

³⁷ Paris Convention, 956 UNTS 251.Google Scholar

³⁸ Vienna Convention, 1063 UNTS 265.Google Scholar

³⁹ The Paris Convention was complemented by the Brussels Supplementary Convention, 1041 UNTS 358; the Vienna Convention was supplemented by Protocol to Amend the Vienna Convention, reprinted in (1997) 36 ILM 1462, and the Convention on Supplementary Compensation for Nuclear Damage, reprinted in (1997) 36 ILM 1473. Neither the protocol nor the supplementary convention to the Vienna Convention are in force.Google Scholar

⁴⁰ Civil Liability Convention, 973 UNTS 3.Google Scholar

⁴¹ International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1110 UNTS 57.Google Scholar

⁴² (1992) Protocol to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969.Google ScholarReprinted in Birnie, PW and Boyle, ABasic Documents on International Law and the Environment (OxfordOUP 1995), at 91. (1992) Protocol to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971. Reprinted in Birnie and Boyle op cit, at 107.Google Scholar

⁴³ A further draft protocol to the Fund Convention is under discussion. See Churchill, RR ‘Facilitating (Transnational) Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems, and Prospects’ (2001) 12 Yearbook of Int'l Env Law 3, at 19.Google ScholarThe US is not a party to the amended conventions. In view of the Exxon Valdez disaster, it enacted more stringent national standards for the compensation of oil pollution damage. See Rao, , above n 24, paras 55–60.Google Scholar

⁴⁴ Civil Liability Convention, above n 40, Arts I and II. See Rao, , above n 24, paras 52–4.Google Scholar

⁴⁵ See Churchill, , above n 43, at 9–10, 19.Google Scholar

⁴⁶ See Handl, G ‘Territorial Sovereignty and the Problem of Transnational Pollution’ (1975) 69 AJIL 50.CrossRefGoogle Scholar

⁴⁷ See Brunnée, J ‘The Kyoto Protocol: Testing Ground for Compliance Regimes’ (2003) 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 255, at 262–5.Google Scholar

⁴⁸ More than 30 years ago, the Stockholm Declaration on the Human Environment called upon States to ‘co-operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction’. See Principle 22, Stockholm Declaration on the Human Environment, reprinted in (1972) 11 ILM 1420.Google ScholarIn 1992 Principle 13 of the Rio Declaration on Environment and Development reiterated the call. See Rio Declaration on Environment and Development, reprinted in (1992) 31 ILM 876.Google Scholar

⁴⁹ Basel Convention, reprinted in (1989) 28 ILM 657.Google Scholar

⁵⁰ Ibid, Arts 4.1(c) and 6.

⁵¹ Initial work was undertaken, in 1990 and 1991, by a UNEP ad hoc working group. Upon entry into force of the Basel Convention, the Conference of the Parties directed the working group to continue its work on the liability protocol. See GFS Soares and EV Vargas ‘The Basel Liability Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal’ (2001) 12 Yearbook of Int'l Env Law 69, at 71–2.Google Scholar

⁵² Basel Liability Protocol, text available at <http://www.basel.int>..>Google Scholar

⁵³ See Soares, and Vargas, , above n 51, at 72.Google Scholar

⁵⁴ See Basel Liability Protocol, above n 52, Art 2.Google Scholar

⁵⁵ See ibid, Art 4. For an overview on the various other options for channeling liability, see Soares and Vargas, above n 51, at 86–8. Note in this context that one contentious negotiating issue revolved around the extent to which generators of waste should be included in the range of potentially liable persons. While Art 6 of the Basel Convention, above n 49, envisages waste generators as within the circle of possible notifiers, generators will frequently pass wastes to other operators who then act as notifiers. This raised the concern that generators could escape liability by passing wastes off to other entities. See Long, JA ‘Hazardous Materials and Energy: Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal’ (1999) Colo J Int'l Envtl L & Pol 253, at nn 38–40.Google Scholar

⁵⁶ Basel Liability Protocol, ibid.

⁵⁷ Maximum liability varies according to the amount of waste involved, and depending on whether the notifier or disposer is the liable party. See Basel Liability Protocol, ibid, Art 12 and Annex B.

⁵⁸ Ibid, Art 13.

⁵⁹ Basel Liability Protocol, ibid, Art 14.

⁶⁰ Ibid, Art 15.1. Developed countries, including Australia, Canada, and Germany, had rejected calls for the creation of a compensation fund. See Long, above n 55, at n 15.

⁶¹ See Soares, and Vargas, , above n 51, at 101. In particular, African countries expressed their disappointment with this outcome.Google Scholar See ibid, at 103.

⁶² Basel Liability Protocol, above n 52, Art 5.Google Scholar

⁶³ Ibid, Art 12.1.

⁶⁴ Information available at <http://www.basel.int/ratif/ratif.html#protocol> (last visited 25 Nov 2003). For a review of potential impediments to entry into force, see Daniel, , above n 35, at 230–1.+(last+visited+25+Nov+2003).+For+a+review+of+potential+impediments+to+entry+into+force,+see+Daniel,+,+above+n+35,+at+230–1.>Google Scholar

⁶⁵ For an overview, see Shibata, A ‘The Basel Compliance Mechanism’ (2003) 12 RECIEL 183.Google Scholar

⁶⁶ Reprinted in (1992) 31 ILM 1333. See Art 13. The convention entered into force on 19 Apr 2000.Google Scholar

⁶⁷ Reprinted in (1992) 31 ILM 1312. See Art 7. The convention entered into force on 6 Oct 1996.Google Scholar

⁶⁸ See <http://www.unece.org/env/civil-liability/status_cl.html> (last visited 29 Sept 2003).+(last+visited+29+Sept+2003).>Google Scholar

⁶⁹ See Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, Arts 4 and 5. Text available at <http://www.unece.org/env/civil-liability/documents/protocol_e.pdf>. For an overview, see <http://www.unece.org/env/civil-liability/welcome.html> (last visited 29 Sept 2003)..+For+an+overview,+see++(last+visited+29+Sept+2003).>Google Scholar

⁷⁰ Reprinted in (1992) 31 ILM 818. See Art 14.2. As of 26 Sept 2003, the convention had 187 parties.Google ScholarSee <http://www.biodiv.org/world/parties.asp> (last visited 29 Sept 2003). For an overview of the liability discussions, see Daniel, above n 35, at 231–3.+(last+visited+29+Sept+2003).+For+an+overview+of+the+liability+discussions,+see+Daniel,+above+n+35,+at+231–3.>Google Scholar

⁷¹ Reprinted in (2000) 39 ILM 1027. See Art 27. As of 26 Sept 2003, the protocol had 63 parties.Google ScholarSee <http://www.biodiv.org/world/parties.asp> (last visited 29 Sept 2003).+(last+visited+29+Sept+2003).>Google Scholar

⁷² See Cook, K ‘Liability: “No Liability, No Protocol”’ in Bail, C et al. (eds) The Cartagena Protocol on Biosafety: Reconciling Trade in Biotechnology with Environment and Development? (LondonEarthscan 2002) 371, at 373.Google Scholar

⁷³ Ibid. Notwithstanding the open-textured wording, this provision now appears to be understood as requiring the development of a liability regime within 4 years.

⁷⁴ For an overview, Cook, , above n 72. Information on the work relating to ‘Liability and Redress’ is available at <http://www.biodiv.org/biosafety/liability.asp> (last visited 29 Sept 2003).+(last+visited+29+Sept+2003).>Google Scholar

⁷⁵ Information available at <http://www.biodiv.org/biosafety/signinglist.aspx?sts=rtf&ord=dt> (last visited 29 Sept 2003).+(last+visited+29+Sept+2003).>Google Scholar

⁷⁶ Text available at <http://www.pops.int/documents/convtext/convtext_en.pdf>. The Stockholm Convention requires fifty ratifications for entry into force (Art 26). It has received 151 signatures and thirty-eight ratifications. Information available at <http://www.pops.int/documents/signature/signstatus.htm> (last visited 29 Sept 2003)..+The+Stockholm+Convention+requires+fifty+ratifications+for+entry+into+force+(Art+26).+It+has+received+151+signatures+and+thirty-eight+ratifications.+Information+available+at++(last+visited+29+Sept+2003).>Google Scholar

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⁷⁸ For an overview on the issues raised in the liability discussion, see the report of the Stockholm Convention Workshop on Liability and Redress, ibid.

⁷⁹ Text available at <http://www.pic.int/en/>. The Rotterdam Convention requires fifty ratifications for entry into force (Art 26). As of 23 Sept 2003, it had received seventy-three signatures and forty-eight ratifications. Information available at <http://www.pops.int/documents/signature/signstatus.htm> (last visited 29 Sept 2003)..+The+Rotterdam+Convention+requires+fifty+ratifications+for+entry+into+force+(Art+26).+As+of+23+Sept+2003,+it+had+received+seventy-three+signatures+and+forty-eight+ratifications.+Information+available+at++(last+visited+29+Sept+2003).>Google Scholar

⁸⁰ Reprinted in (1991) 30 ILM 1461. Art 16 of the protocol requires that parties develop an annex on ‘rules and procedures relating to liability’ for damage caused by activities in Antarctica.Google Scholar

⁸¹ The eighth offering built on the basic models of existing nuclear and oil pollution liability regimes, but also pushed beyond these precedents. It would have provided for strict, unlimited, operator liability; defined damage as any harmful effect above the de minimis range; required operators to take precautionary and response measures; required operators to contribute to a compensation fund where damage is irreparable; required non-state operators to carry insurance; provided for residual state liability in cases where States fail to meet their commitments under the protocol; created a dispute settlement regime. See Wolfram, R ‘Environmental Protection of Icecovered Regions’, in Morrison, FL and Wolfram, R (eds) International, Regional and National Environmental Law (The HagueKluwer Law International 2000) 329, at 336–7.Google Scholar

⁸² See de La Fayette, L ‘The Concept of Environmental Damage in International Liability Regimes’, in Bowman, and Boyle, (eds), above n 12, at 178–81. The US has proposed a much more limited liability regime, which would hold parties liable only for failure to take response action following an environmental emergency.Google Scholar

⁸³ Note that only one agreement exists that focuses on (primary) State liability, the 1972 Convention on International Liability for Damage Caused by Space Objects (1921) UNJYB 111. As we have seen, to the extent that they do so at all, other agreements provides only for residual forms of State liability.Google Scholar

⁸⁴ On trends pertaining to the compensation of environmental damage, see the detailed review in Sands, P ‘Liability for Environmental Damage and the UNEP Working Group of Experts—Introductory Article by the Rapporteur’, in Timoshenko, A (ed) Liability and Compensation for Environmental Damage (UNEP 1998) 1.Google Scholar

⁸⁵ See, eg, Rao, , above n 24, para 150.Google Scholar

⁸⁶ However, Churchill, points out, that some of the amendments and updates to these regimes are not yet in force.Google ScholarSee Churchill, , above n 43, at 31. And see above n 39.Google Scholar

⁸⁷ Ibid.

⁸⁸ See ibid, at 32.

⁸⁹ See, eg, Röben, B Baker ‘Civil Liability as a Control Mechanism for Environmental Protection at the International Level’, in Morrison, and Wolfrum, (eds), above n 81, 821, at 821–7.Google Scholar

⁹⁰ See Cook, , above n 72, at 373–4.Google Scholar

⁹¹ For a comprehensive, and critical, assessment, see Bergkamp, LLiability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (The HagueKluwer Law International 2001).Google Scholar

⁹² Some commentators suggest that (domestic) liability regimes can promote cost internalization, but often result in delayed clean-up or do not achieve deterrence objectives due to difficulties in identifying the polluter, insufficient insurance, or insolvent polluters. See Boyer, M and Porrini, D ‘The Choice of Instruments for Environmental Policy: Liability or Regulation?’, in Swanson, T (ed) An Introduction to the Law and Economics of Environmental Policy: Issues of Institutional Design (AmsterdamElsevier 2002) 245.Google Scholar

⁹³ See Churchill, , above n 43, at 39.Google Scholar

⁹⁴ See Proposal for a Directive of the European Parliament and the Council on environmental liability with regard to the prevention and remedying of environmental damage, COM (2002) 17 final [2002] OJ C 151 E/132.Google ScholarFor detailed discussions see Bergkamp, L ‘The Proposed Environmental Liability Directive’ (2002) European Envtl L Rev 294 (Part I), 321 (Part II);CrossRefGoogle ScholarMeyer-Koenecke, M ‘The Proposal for a Directive on Environmental Liability’ (2003) Envtl L Network Int'l Rev 4.Google Scholar

⁹⁵ See Austin, D and Alberini, AAn Analysis of the Preventive Effect of Environmental Liability (2001) see <http://europa.eu.int/comm/environment/liability/preventive_final.pdf> (last visited 10 Feb 2004).+(last+visited+10+Feb+2004).>Google Scholar

⁹⁶ See Sergerson, K (ed) Economics and Liability for Environmental Problems (Burlington, VT Ashgate 2002), at xxii.Google Scholar

⁹⁷ See Rao, , above n 24, para 119.Google Scholar

⁹⁸ However, even here observers have highlighted varying effectiveness. Rao, , above n 24, paras 136–7, contrasts the experience in the Amoco Cadiz case (13 years of litigation, high burden of proof, award of one-tenth of amount claimed) with that of the Tanio case, which proceeded after the oil pollution fund had come into existence (nearly a hundred claimants, receiving nearly 70 per cent of the amount claimed within 3 to 5 years of the incident).Google Scholar

⁹⁹ Brunnée, , above n 4.Google Scholar