|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|
International liability for acts not prohibited by international law involves a rather stringent form of responsibility-liability, which in turn has a strong impact on the nature and extent of remedial measures in the field. It follows that the debate about the present state of international law on this point has been most lively.
First, it should be noted that the much discussed decision of the International Law Commission in 1976,66 referred to above (which lists among international crimes those relating to the breach of an international obligation of essential importance for the safeguarding and preservation of the human environment), has to be understood more as an expression of concern in line with the Stockholm Conference than as a radical departure in terms of the consequences attached to the breach of such an obligation.
The work of the International Law Commission on "International Liability"67 reveals a cautious approach to the state of international law on the matter. On the one hand the separation of liability for acts not prohibited by international law from State Responsibility is indicative of the policy of attaching a legal consequence - liability even to international lawful activities, yet on the other hand State Responsibility could well apply to extra-hazardous operations,68 thus also attaching a legal consequence to activities that are not, per se, unlawful. In this regard the remedial aspect of the law would not be different under either approach. What is of importance is that international law is accepting legal consequences for a variety of activities that may result in an adverse impact upon the environment.
The "compound 'primary' obligation" identified by the International Law Commission in its schematic outline on "international liability" refers to four basic duties: prevent, inform, negotiate, and repair.69 The emphasis is on preventive measures as well as the new obligation to notify and consult. However, it is surprising that the failure to comply with the first three duties mentioned is not regarded as wrongful and, consequently, no action can be brought against such failure; only the failure to make reparations is ultimately identified with a wrongful act and, hence, engages the State's responsibility.70
It follows that from the perspective of the International Law Commission, there is really not much difference between international liability and state responsibility, since the ultimate test of wrongfulness in both lies in the failure to make a reparation. While it is true that under international liability the initial activity can be lawful and under state responsibility normally it will be unlawful (although neither excludes both lawful and unlawful activities), the two are equated in terms of the end result.
It has been rightly observed that one consequence of the International Law Commission approach could "allow a state to persist in an unlawful act even without the consent of the injured state, as long as the acting state pays monetary reparations to the injured state."71 In the field of environmental protection this result would be utterly unacceptable and self-defeating, which is why there has been an emphasis on both preventive measures and new developments that require that pollution be terminated and allow all states to bring actions to this effect.
Although there has also been debate about whether the Trail Smelter decision involved, in addition to its pioneering invocation of international liability, an element of international responsibility given that a wrongful act had been committed, it is quite clear that the effect of the decision never would have allowed the harmful activity to persist. As noted above it ordered the smelter to "refrain" from such activity and put in place a regime for the control of emissions.72 This result is in line with the emerging consensus that international law ought to provide adequate protection of the environment.
Another element of the debate prompted by the International Law Commission's work is the method of determining reparation. The schematic outline favours the method of reparation determined by a "balance-of-interests" test, which takes into account the shared expectations of the states involved, a number of principles and factors, and the extent to which the duties to prevent, inform, and negotiate have been complied with.73 This approach offers the advantage of introducing an element of flexibility that allows the weighing of the different circumstances of the case, but, on the other hand, it involves greater subjectivity. The alternative test of strict liability is in a sense more objective, because the harmful result will be separated from the intention of the state and even from the fact of having discharged the relevant duties. Again this last approach is more in line with the needs of environmental protection.