|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|Issues in international environmental law|
|5. State responsibility, liability, and remedial measures under international law: new criteria for environmental protection|
The Law of State Responsibility1 emerged in the international legal order as a concept basically meant to operate in an ex post facto manner and has generally followed the characteristics of the law of torts in domestic legal systems. The very idea of injury on which this aspect of the law was based assumed that an unhappy event had already taken place before the operation of responsibility. The restrictive nature of this body of law was further revealed by the requirement of a causal link between the injury and an official act or omission attributable to the state in question. In addition, the doctrine only applied when such an act or omission was wrongful, that is, contrary to a precise obligation under international conventional or customary law. This was not always easy to establish, particularly in view of the vagueness that has occasionally accompanied the consolidation of a rule of law in the international order.
Rationae materiae, the Law of State Responsibility was conceived in a limited manner. It initially protected personal rights and later evolved to protect economic rights of nationals of other states. Given the limited scope of international relations at the time of these legal developments, it was quite natural that the law would cover only those aspects in which contacts among nations were more frequent, and hence where conflicts were most likely to arise.
In this context it is hardly surprising that the remedies attached to the operation of responsibility were equally of a limited value. In essence, remedies purported to lead to restitutio in integrum where at all possible through compensation or other forms of reparation. Unilateral or anticipatory remedial action has never been favoured in international law in view of the risk of abuse involved, which has meant an even more limited availability of remedies. Needless to say, procedural arrangements have in general been slow and drawn out.
None of the above detracts from the useful role of State Responsibility under international law and the manner in which it has helped to solve many disputes among states and redress the rights of individuals that may have been affected by unlawful acts or omissions. In spite of its many shortcomings, the law specifically applicable to international claims, including those related to property and other economic rights, bears witness to the important developments and improvements that have taken place in this field.
The primary problem affecting the operation of the Law of State Responsibility is that since this body of law became consolidated in the early part of the century, the nature and extent of international relations have dramatically changed. Occasional international interactions among individuals have given way to a global economy. Rights that might have been considered as appertaining to foreign nationals are today a part of the law of human rights applicable to all without distinction. Distant events that previously escaped attention because they did not fall within the domain of exclusive national jurisdiction are today the concern of humankind as a whole. Industrialization, resource exploitation, and development have prompted environmental effects of a global nature that were unknown in the past.
Most of these changes have had an impact on the Law of State Responsibility, both in terms of its material content and its procedural arrangements. The law has not been static and has not remained frozen in time; it has evolved significantly, albeit not in every respect. Many of the responses to the violation of economic rights of individuals, or more broadly, the protection of human rights, are the re suit of the evolution of the Law of State Responsibility. 1 his evolution has led to new conceptual insights, introduced a greater degree of flexibility in its operation, and allowed for new and more effective remedial measures.
This chapter examines specifically the changing conditions arising from the need to ensure adequate environmental protection in the international domain, and the impact this has had on the Law of State Responsibility. It is through this perspective that one can best realize to what extent there has been an evolution in this body of law and to what extent some of its prevailing shortcomings still remain.