A Few Reflections on State Responsibility or Liability for Environmental Harm

A lot has been written on the subject of State responsibility / liability for environmental harm. However, in the recent years, the debate has not been as robust as immediately after the rendering of the Judgment of the International Court of Justice in Certain Activities Carried Out By Nicaragua In the Border Area (Costa Rica v. Nicaragua) Compensation Owed By The Republic Of Nicaragua To The Republic Of Costa Rica  (Diane Desierto,  ‘Environment: The ICJ Compensation Judgment in Costa Rica v. Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean’, EJIL: Talk!). The debate concerning State responsibility / liability for environmental damage, although without doubt very scholarly, seems to me has been somewhat conducted in a piecemeal fashion, without a holistic, all -inclusive approach, which would consider the type and structure of international environmental law norms (how their special features and characteristics influence State responsibility / liability).

In my view, further consideration should be given of the role and the added value of the 2001 ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities and especially 2006 Draft Principles on the Allocation of Loss in Case of Transboundary Harm Arising out of Hazardous Activities in the context of civil liability regimes, which are based on very similar principles.  My reflections in this post are prompted by a webinar organised by the Public International Law Group of University of Brunel on Current Issues in International Responsibility and Dispute Settlement on 24^th February 2023. These reflections are meant to signal complex problems and outline their contours rather than aspire for in-depth analysis.

In my view, there are several questions concerning the legal character of norms of international environmental law, which are not fully analysed and still require a more profound and detailed approach, as it has a direct effect on responsibility. One such example is an analysis of obligations of conduct and result within the context of norms of international environmental law. It is commonly accepted that the obligations of international environmental law are these of conduct related to due diligence and a positive duty. However, the development of international environmental law and the expanding number of relevant judicial decisions require more investigation of what is the content of such an obligation of conduct and related concepts.  For example,  in the Urgenda case, the Dutch Supreme Court considered that positive obligations under Articles 2 (the right to life) and 8 (the right to respect for one’s private life, family life and home) of the ECHR were the basis for taking all appropriate measures to implement reduction commitments to prevent climate change (Medes Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris Agreement and Positive Obligations under the European Convention on Human Rights’,  Neth Int Law Rev 68, 121–155 (2021).

It is without doubt that international environmental law obligations are obligations of prevention. However, the relationship between due diligence and the obligations of prevention of transboundary harm is very complex and still unresolved (Leslie-Anne Duvic-Paoli, ‘The Prevention Principle in International Environmental Law’, Cambridge University Press (2018)). This problem has been very well illustrated by the ICJ Merits Judgment in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), I.C.J. Reports 2015, p. 665. The Court did not clarify the relationship between due diligence (procedural principle of conduct) and the substantive principle of prevention ‘or the broader question about the relationship between procedural and substantive obligations under environmental law’ (Rumiana Yotova, ‘The Principles of Due Diligence and Prevention in International Environmental Law’, The Cambridge Law Journal, vol.75, No.3 (November 2016), pp.445-448).

The inherently bilateral character of international law and ensuing State responsibility have not been entirely suitable to redress environmental damage. Some concepts such as common concern of humankind, which relate to climate change and biodiversity, presuppose an interest of the whole community of states. This is in effect coterminous with obligations erga omnes and erga omnes partes. These obligations result in a variety of approaches and their content in relation to international environmental law is anything but clear (See Leslie-Anne Duvic-Paoli above).

From a procedural point of view article 48 of the Articles on State Responsibility (ASR) recognises locus standi of States which are not directly injured but seek to bring a claim on behalf of the community of States and in relation to the obligations erga omnes and erga omnes partes. Additionally, after the ICJ judgment in Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (ICJ Reports, 2014, p.226) and the Advisory Opinion of the International Tribunal for Law of the Sea (ITLOS) on Responsibilities and obligations of States with respect to activities in the Area (ITLOS Reports, 2011, p.10), the redress of community interests has become more of a reality, albeit not without vexing questions, based on multilateral treaties. Interestingly, the Court has not at all mentioned in the Whaling case obligations erga omnes partes. There is a host of unaddressed and still unresolved issues concerning the practical application of obligations erga omnes to environmental law within the paradigm of State responsibility. Furthermore, as a rule, the courts have also traditionally been cautious in allowing claims by States who have acted as a representative claimant of the international community but have not themselves suffered environmental harm (See Leslie-Anne Duvic-Paoli above).

A further question which complicates the responsibility / liability for environmental harm is the distinction between liability ex delicto (based on a wrongful act) and sine delicto (deleterious acts resulting from lawful activities). The International Law Commission (ILC) also struggled with this difference, in particular in relation to liability emanating from hazardous activities such as nuclear power plants. These considerations prompted the ILC to begin with the 1978 Articles on Liability for Injurious Consequences of Acts Not Prohibited by International Law. This approach was, however, almost uniformly criticized as fundamentally misconceived. The key complaint of the critics was that in the law of State responsibility the issue is not whether the relevant activity as such is unlawful but whether the home State fulfils its due diligence duty to avoid causing transboundary harm.

In 2001, the ILC adopted the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities and in 2006 the Draft Principles on the Allocation of Loss in Case of Transboundary Harm Arising out of Hazardous Activities in the context of civil liability regimes. The 2006 Draft Principles are based on the civil liability of an operator, rather than State responsibility. The State is obliged to make sure that the civil liability of an operator is implemented. These obligations relate to the area of response measures, such as obtaining from an operator necessary information and the prompt notification to all States that are affected or likely to be affected (Principle 5(a)). The questions arise what the practical significance of the 2001 Draft Articles and 2006 Draft Principles is if they, to a great extent, copy existing civil liability regimes relating to nuclear energy and oil pollution. The complex nexus of treaties concerning nuclear energy (the Paris/Brussels Conventions, the Vienna Convention and the Convention on Supplementary Compensation) is structured in the same way as the 2006 Draft Principles. The latest amendments to the regime in force from the 1^st January 2022, regarding nuclear liability made several changes in relation to the expansion of the definition of nuclear damage, the geographical scope of the coverage of the Paris Convention, allowing affected persons in more countries to be compensated and most importantly, the key improvement to the Supplementary Convention, the increase of public funds made available in case of nuclear accidents. The Convention is based on three tiers, but the significant feature of this regime is the large contribution of State parties to public funds.

The many amendments to these Conventions indicate that they are a ‘living instrument’. Both the 2001 Draft Articles and 2006 Draft Principles are based on the status quo of all the Conventions of the time of drafting. However, these Conventions as evidenced by practice have developed and moved forward. Therefore, we can ask what the added value of the ILC’s Drafts is, what new do they add to the existing regimes of nuclear activities and oil pollution, since the basic principles of the Conventions and the ILC Drafts are the same. The role of public funds and the role of the state on these regimes, should in my view, be more extensively analysed.

The final issue raised in this blog is the issue of compensation for environmental damage. There are several problems related to this issue within the context of classical State responsibility. For example, article 35 ASR on restitution focuses on the restoration of the status quo ante. The ILC certainly considered environmental harm to fall into a category of financially assessable damage, as the commentary to the ASR suggests by singling out pollution as one of the areas in which States may seek compensation for harm suffered. However, in many cases, environmental harms are irreversible, and hence restitution will be impossible. As a result, restitution may not always be an option or may have to be complemented by compensation in order to ensure full reparation. The ILC has acknowledged that actual damage would often extend to such environmental values such as biodiversity, amenity, or so-called ‘non-use values’, which are as a matter of principle, no less real and compensable than damage to property, though they may be difficult to quantify. Similarly, it is unclear whether notional or non-market-based value to depleted resources would be covered under the formulation of ‘financially assessable damage’ such as extinction of endangered wildlife. The complexities of the environmental harm assessment had been very well documented by the 2018 ICJ case, which although considered as pioneering, included findings which were subject to critique mostly based on the lack of transparency in the Court’s methodology and the absence of experts (see Desierto, as well as Jason Rudall, Compensation for Environmental Damage under International Law,  Routledge, 2020).

This short overview of responsibility / liability for environmental harm only signals certain questions which perhaps merit further investigation. As suggested, the approach to responsibility / liability for environmental harm should be holistic, based on primary norms i.e., principles underlying international environmental law with secondary norms of State responsibility.  For example, the role and legal nature of due diligence in general and in international environmental law is still a puzzling area as evidenced by leading publications (Jorge E. Viñuales, ‘Due Diligence in International Environmental Law: A Fine-grained Cartography’, in Heike Krieger, Anne Peters, Leonhard Kreuzer (eds.) Due Diligence in the International Legal Order, OUP, 2020). The question may even be posed whether due diligence is a primary or secondary rule of international law (Richard Mackenzie-Gray Scott,’ Due diligence as a secondary rule of general international law’, LJIL (2021).  In my view, further research should also be conducted relating to the 2001 and 2006 ILC Drafts in light of their usefulness for States’ practice, in the context of civil liability regimes.  The existing Conventions such as on International Liability for Damage Caused by Space Objects , has been only invoked once and the Lugano Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, has never entered into force, which indicate certain problems in implementation and the States’ States reluctance ‘towards the generalization of such principles’,  (Sandrine Maljean-Dubois, ‘International Litigation and State Liability for Environmental Damages: Recent evolutions and perspectives’).

Finally, the expanding number of different international and national judicial fora which deal with environmental harm should be more robustly explored, such as human rights courts and investment arbitrations (Desierto, Rudall),  in order to avoid fragmentation in respect to responsibility / liability for environmental harm.