The Responsibility of States For Environmental Harm

In general sense principles of international law imposing liability on actors for their illegal acts, or for the adverse consequences of their lawful activities, are relatively well developed at a general level. Environmental damage known as damage to the environment, which has been defined in treaties and other international acts to include four possible elements:

a) Fauna, flora, soil, water, and climatic factors

b) Material assets,

c) The landscape and environmental amenity and

d) The interrelationship between the above factors.

In this State liability refers here to the liability of international persons under the operation of rules of international law of state responsibility. State have long recognised the role of liability for environmental damage, as well as the gaps and inadequacies which exist. principle 22 of Stockholm declaration recognised gaps and called on states to cooperate to develop further the international law regarding liability and compensation for victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction [1]. The 1982 world charter for nature did not directly address liability ,although it called for degraded areas to be rehabilitated and for individuals to have access to means of redress when their environment has suffered damage or degradation. [2]

The Rio declaration reflects the limited progress which has occurred since 1972 .it emphasises the development of national rules addition to the further development of international rules for all adverse effects of environmental damage including, implicitly, liability for damage to the environment itself.

The most elementary mechanism for managing compliance with international law is provided by the collection of customary norms relation to state responsibility. These secondary or subsidiary rules of international law set out the consequences of unlawful action, including the situations in which states may invoke a breach of international law pursue a remedy. [3] For which Principles of state responsibility constituted the baseline enforcement system when public international law begun to engage with environmental concerns by applying general rules to situations involving environmental harm such as the obligation to ensure that activities with in one state do not damage the territory or nationals or other states.

Principles of state responsibility

Article 1 of the ILC articles on responsibility of states for internationally wrongful acts expresses the basic principle that an internationally wrongful act by a state entails the international responsibility of that state [4] . In relation to any international claim concerning environmental matters it is therefore essential first to identify the relevant international obligation that has been breached.

Discussion of state responsibility for environmental harm often revolves around examples such as the Trail Smelter case [5] scenario there industrial activities in Canada caused damage to the environment across the border in the united States. However , the law of state responsibility is of much broader application and will operated whenever there has been a breach of an international obligation whatever its source. It functions as a type of international civil liability for wrongful action and as such has both corrective functions (by establishing a system of remedies, including compensation and preventative objectives by deterring wrongful behaviour.

The mere fact that a wrongful act has been identified does not necessarily mean that there is a remedy, because only injured states possess standing to invoke the responsibility of a state that has violated international law. [6] A state will be injured in the relevant sense if the obligation infringed was owed to that state individually. There will also be an injury if the obligation breached was owed to a group of states or the international community as a whole and the breach specially affected the injured state. [7] These principles apply reasonably well to situations such as the trail smelter case involving Trans boundary damage to the environment of another state, or to damage to global commons areas that also involves discernible impact upon one or more states. In this regard an example given by the ILC is pollution on the high seas, in violation of article 194 of the LOS convention, which specially affects one or more coastal states by damaging coastal environments.

The articles on state responsibility seek to deal with this in article 48,under which a state that is not injured may none the less invoke the responsibility of another state if the obligation breached is owed to a group of states ,including that state, and is established for the protection of a collective interest ,or the obligation is owed to the international community as a whole. [8]

For the extent that there are application ‘erga omnes’ obligations relating to an environmental matter there therefore exists the potential for any state to initiate a complaint or a type of action popularis. [9] In such circumstances the invoking state can be seen to be acting not only in its own capacity but also as an agent on behalf of a group of states such as all parties to a multilateral environmental agreement or the international community as a whole so as to uphold a customary obligation relating to the global environment.

While the ILC acceptance in principle of public interest international environmental claims is to be welcomed, there is limited evidence to suggest that it has accepted by states as part of customary international law. [10] Even if is ultimately recognised as part of customary international law a host of subsidiary issues will need to be addressed in order to ensure that the action popularis is responsive to challenges of environmental compliance .for instance, a state not directly affected by environmental harm would be permitted under current rules seek only very limited remedies namely cessation and satisfaction and pure environmental harm would attract no obligation of restitution or compensation. In such circumstances a claim would be largely without object in an enforcement and compliance sense as it would impose no real sanction for wrongful behaviour.

there is the unresolved question of whether standing should be limited to states among or whether the general law of state responsibility should be developed to reflect practice in some specific contexts, most notably human rights regimes, which permits non state actors to invoke state responsibility. The ILC was not prepared to accord non actors such rights in article 48, which substantially weakens the capacity of the articles on state responsibility to deal with major environmental problems of global concern [11] .

Beyond the limitations deriving from standing rules more general problems are encountered in deploying the law of state responsibility to promote compliance with international environmental law. As with all systems of liability it is inherently reactive relying upon states to take action where there has been a breach of an international obligation ,by which time permanent damage may already have been caused to the environment . And where damage is relied upon to make out a claim, it will need to be established both that the invoking state has been injured in the relevant sense and that the injury was caused by the delinquent state . This may be exceptionally difficult to prove to the requisite legal standard in many situations. These difficulties are further compounded for complex global environmental problems such as climate change, in relation to which it is next to impossible to identify a causal linkage between the actions of a particular state is failing to restrain greenhouse gas emissions, and damage caused to the environment of other nations.

Breach of treaty

Many environmental agreements or more general regimes that include in their coverage environmental matters specify procedures through which parties may respond to breaches of the regime. [12] where there is no such procedure or there treaty specific machinery proves ineffective ,states may turn to general options presented under the law of treaties ,as codified by the 1969 Vienna convention on the law of treaties(VCIT), [13] to enforce obligations applicable under environmental treaties.

Under the VCIT a party to a multilateral treaty specially affected by a breach may suspend the treaty’s operation as between itself and the violating party. [14] Additionally all parties to an environmental agreement may, by unanimous agreement, effectively exclude the defaulting state by suspending or termination the operations of the treaty in whole or in part. [15] both of these enforcement strategies rely on there having been a material breach that is repudiation of the treaty or violation of a provision of the treaty essential to the accomplishment of its object or purpose . these are onerous criteria to meet as illustrated in the ‘Gabvikova Nagymaros project case’ [16] , where the ICJ held that a joint development treaty continued to operate not with standing several significant breaches of its provisions by both parties , in any event it is highly questionable whether excluding a state from an environmental treaty will serve its long term interests. By way of example , the expulsion of Japan from the 1946 international convention for regulation whaling for violation the commercial whaling moratorium by its thinly disguised scientific whaling programmes would probably leave its activities almost wholly unregulated on the international plane. [17] Suspending or termination treaty membership is therefore unlikely to be an appropriate response in many environmental regimes where the widest participation and the greatest degree of cooperation is required to achieve an environmental objective.

Interstate dispute settlement

A breach of an environmental norm, treaty based or customary will allow states to pursue a claim through available dispute settlement procedure. With the UN charter prohibition on the use of force and limited circumstances in which countermeasures may be deployed these procedures now comprise the classical mechanism of enforcement in public international law. Article33 of the UN charter catalogues the main methods of settlement, namely negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement and resort to regional agencies or arrangements. [18] Each of these has had some role to play in environmental dispute settlement.

Consultation and negotiation – the term consultation is generally used to describe discussions between states prior to an activity that may generate a dispute. Where there is a likelihood of significant interference with shared natural resources it appears that states are under a positive obligation to engage in preliminary consultation before implementing a project that will have this effect. this was seen in the Lake Lanoux Case [19] where the tribunal held that France was required to consult with Spain in stream river user. The importance of consultations was also seen in the Fisheries Jurisdiction Cases in which it was held that all sates with an interest in fisheries surrounding Iceland were under an obligation to keep under constant review the marine living resources of the waters and to work together to adopt agreed measures for conservation and equitable allocation.

Where consultations have not taken place or are unsuccessful and a dispute does arise then the parties may seek to reach a negotiated settlement. as with consultation, negotiation may take a variety of forms and be carried out in many different fora. In almost all environmental instruments negotiation or consultation is presented as the initial method of dispute settlement.

Mediation – In the process of mediation a third party takes an active role in the settlement process. Mediation none the less remains firmly under the control of the parties and is therefore a diplomatic procedure that does not lead to a binding determination by a mediator according to legal criteria although many environmental treaties present mediation as an option for dispute settlement, it does not appear to have been used in dealing with any environmental dispute.

Conciliation – conciliation bears many similarities to mediation, the third party is expected to take a more active, formal and neutral role. Much like mediation, it does not normally lead to a determination that is binding on the parties; however some environmental instruments require that parties must consider the conciliation report in good faith. In addition, conciliation usually proceeds according to somewhat flexible criteria rather than involving the exclusively legal standards to the dispute.

It may be carried out by a single conciliator a panel of conciliators or an international body such as a permanent commission established by an environmental agreement. Bodies that principally operate as arbitral tribunal may also have the capacity to engage in environmental conciliation. [20]

However, despite its evident potential, conciliation does not appear to have been used in an environmental case. The closest a state has come to utilising conciliation was in 1995 when New Zealand reportedly considered invoking the conciliation procedure in the Biodiversity convention in response to a fresh round of French nuclear tests in the Pacific.

Commissions of inquiry and fact finding – inquiry and fact finding are interchangeable terms to describe a process of independent investigation of disputed facts and issues. This may involve a variety of activities including site visits, the examination of witnesses, and the evaluation of written and oral submissions made by the parties themselves. Several examples of inspection procedures are found in environmental agreements such as the NCP established by the 1987 Montreal Protocol on substances that deplete the Ozone layer which empowers the implementing committee with the consent of the party involved to undertake information gathering. [21] Another example is the system of inspection established by the Madrid Protocol which provides in article 14 for inspections of stations and other facilities by designated observes in order to promote the protection of the Antarctic environment and dependent and associated ecosystems, and to ensure compliance with this protocol. [22]

Fact finding commission are to be composed of members nominated by the parties, who are in turn responsible for selecting a chair person. Such commission may adopt reports by majority vote, rather than consensus in which findings and recommendations are made for an equitable solution of the dispute.A similar system is found in the ILC draft articles on prevention of transbounday harm from hazardous activities. Where a dispute over transboundary harm cannot be resolved through consultation or negotiation within a period of six months, the articles provide that a party to a dispute may invoke compulsory fact finding procedures to be carried out by an impartial commission.

Arbitration and judicial settlement – international adjudication by arbitration or judicial settlement is distinguished from the other dispute settlement mechanisms already described by several important characteristics. The critical differences are found in the role of the third party judges or arbitrators who sit above rather than between the parties, the process of decision making according solely to legal and not political criteria and the result and effect of decisions binding upon the parties and having a potential influence on the development of the law.

States have preferred to utilise these judicial mechanisms over other traditional systems of inter state dispute settlement such as mediation or conciliation and the engagement by a range of courts with environmental questions suggests that adjudication is a popular option for dealing with such disputes [23] . However when a broader view is taken it becomes apparent that there is a strong trend away from inter state dispute settlement systems altogether in favour of treaty based institution such as NCPs which are more administrative than judicial. The effect of this is to introduce a degree of imbalance in international governance arrangements for environmental matters. [24] While there is a range of limitations to any court engaging with environmental issues, courts provide a modality for disinterested dispute settlement where public recognition. [25] This fact is recognised the world over in domestic settings, where courts are increasingly charged with upholding environmental laws and regulation. This means that for all the virtues of new approaches to managerial types of dispute settlement there remains a role for judicial determinations of international environmental question.

Conclusion

After going through the principal of state responsibility and inter-state dispute settlement the researcher come to the conclusion that state responsibility is a well established principle of international law, and it’s recognised under article 1 of the ILC Draft article on state responsibility. No single instrument sets forth generally applicable international rules governing state liability for environmental damage, although the international law commission and some regional organisation have prepared draft instruments to establish rules of general application. The rules concerning the liability of states for environmental damage, such as they exist, must be considered by reference to treaties, under customary international law, or bye operation of general principle of law.

The rules of international law governing liability for environmental damage must still be considered to be in their early phases of development, particularly in relation to rules of state liability. States remain reluctant to put in place rules which have the potential to impose significant constraints on the conduct of potentially hazardous activities, as well as being aware of significant costs to the public sector. And inter state dispute settlement systems tend to be process oriented, in promoting peaceful relations regardless of the outcome, rather than goal oriented, in seeking to achieve a substantive improvement in compliance.