|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|Issues in international environmental law|
|6. Law and global environmental management: some open issues|
In spite of the shift of emphasis to preventive norms and operational schemes, and in spite of the fundamental shortcomings pointed out earlier, compensatory remedies retain their importance, both as a deterrent -especially where states or transnational enterprises notoriously sensitive to public opinion are concerned - as well as to repair harm once it has occurred. It has also been noted that progress has been made to tighten tort law as it applies to environmental and other major risks, as well as in private and public international law. There nevertheless remain some critical areas in which international law needs further adjustment.
Conflict of laws
Major instances of environmental harm, whether or not accidental, are likely to have transfrontier connotations. The sources of the damage, or the persons responsible for it, may be in countries other than those where the damage occurs: there may be victims or defendants from several countries, and so on. Among the accidents that occurred in recent decades, many, if not most, gave rise to litigation before civil courts, involved private plaintiffs and defendants, and were governed by private law. Chernobyl, Seveso, and the more recent Rhine pollution cases never came before the courts and were not resolved by reference to any legal norms and processes, but the Torrey Canyon, Amoco Cadiz, Exxon Valdez, and Bhopal disasters did, as well as earlier Rhine pollution cases. In fact, private litigation has been, and may be expected to remain, the first and principal resort for victims of environmental harm.
As regards the choice of courts, the tendency has been to bring jurisdiction closer to the victims. Problems nevertheless remain where damage is caused (or manifests itself) in several countries or - as on the high seas - outside the jurisdiction of any country. Also, victims will evidently seek the forum that applies the law most favourable to them. The "forum shopping" that surrounded the Bhopal litigations12 is a case in point: The Indian victims wanted to proceed before American, and the American co-defendant before Indian courts. A similar situation occurred in the Amoco Cadiz litigation, where the American courts, unlike the tendency of the courts manifested in the Bhopal case, accepted jurisdiction. Since the current tendency is to apply the substantive law most favourable to claimants,13 the choice of forum might, in the long run, be expected to lose some of its importance. The fact remains, however, that a number of critical issues - e.g., the availability of collective remedies; type and measure of damages; statute of limitations; distribution of a limited fund (e.g., covered by insurance, or in bankruptcy proceedings), etc. - are seen as procedural questions governed by the law of the court. A solution may be found, in the long run, by treaty provisions or - in a more utopian perspective - the day an international tribunal will be created to hear also claims by and against private parties. Until then, however, the jurisdictional ballet surrounding claims for environmental damage is likely to continue.
Piercing the corporate veil
A second important issue, dramatically exposed in the Bhopal case, concerns the responsibility of parent companies for the civil liability of subsidiaries -whether based on fault or derived from a no-fault rule. The tendency, at least in American law, is to "pierce the corporate veil" and recognize the responsibility of the parent. This occurred in the Bhopal case, although it appeared that the parent company itself had also been negligent. At any rate, the issue re mains open in many jurisdictions, inhibiting the effectiveness of civil-law remedies for large-scale environmental damage in situations where potential defendants, whether or not qualifiable as multinational enterprises, seek to insulate themselves from liability by "one-ship corporations" or by hiding behind a web of subsidiaries and holding companies.
A third major area in which the law must be expected to grow concerns the availability of collective remedies - e.g. class actions, or actions by communities rather than by private claimants - as well as the representation of the interests of future generations. Meanwhile, if no workable solutions are found under domestic or treaty law, there will always remain - as a last resort for foreign collective claims state responsibility under public international law.
The responsibility of states under public international law - not only for environmental damage attributable to their own acts or omissions but also for damage that can be led back to private sources on their territory or subject to their control - is recognized by legal doctrine and jurisprudence of relatively recent date (derived from the Trail Smelter arbitration, the Lake Lenoux and Corfu Channel and subsequent cases),14 as well as by some treaties dealing with potentially hazardous activities. State responsibility is obviously also a corollary of the new norms, soft or hard, that impose on states specific and explicit obligations to prevent environmental damage. In fact, it must be assumed that the breach or non-observance of an agreed safety norm or preventive obligation constitutes fault (and an abuse of sovereignty rights) from which there flows a direct responsibility of the state concerned as long as damage and a causal link are demonstrated. Some doubts have been raised as to whether this responsibility is objective or based on fault; where a prohibition has been violated, however, or a specific treaty obligation accepted by the state concerned was breached, the question would appear to be academic, provided of course that the treaty obligation was clear and unambiguous.
It should be remembered, in this context, that the responsibility of the state is in principle direct and primary, although the claimant state may represent injuries to persons (nationals or residents) and property within its jurisdiction, as long as these claimants have exhausted local remedies. There is also another type of state responsibility, however - subsidiary and not primary -assumed under particular treaty norms, e.g. in the nuclear liability conventions and, presumably, where under general or treaty law, a state has the obligation to ensure prompt, equitable, and non-discriminatory compensation but the victims are not, in fact, able to recover.
Beyond this, one major issue relating to environmental harm continues unresolved: it concerns the responsibility of states for allowing the export (often by or through subsidiaries of powerful transnational enterprises) of polluting or dangerous technology, substances, and equipment that result in environmental harm. Relatively little attention has been paid to this issue by legal doctrine. The US Restatement of Foreign Relations Law simply takes the position that product liability does not extend to international law.15 Yet the question is by no means moot - Seveso, Bhopal, and the export to or disposal of toxic waste in developing countries of Africa or the Caribbean are cases in point. To the extent that the country of origin could in fact regulate such exports, or is actually encouraging them, equity clearly calls for an affirmative duty and consequent responsibility.
This issue - even if couched only in terms of an obligation to regulate, while the problem of liability for compensation is limited to a generic obligation to "cooperate" - is squarely raised by the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, and by an earlier EEC directive on the same subject16 that requires authorization by the exporting country and a formal notification of and authorization by the country of destination, even when it is not a member of the European Community. Quite apart from the fact that the Basel Convention has not yet entered into force, and that the EEC directive is not applied with great diligence, both recognize that the exporting country has an affirmative duty of care not only to other member countries but to the international community at large. Should such an affirmative duty of supervision and control, and responsibility of the state where it is remiss in living up to it, extend also to the export of inherently dangerous equipment or technology, especially when encouraged by official export credits, and when the exports are directed to developing countries notoriously unable to apply adequate safety norms? And what about turnkey contracts for environmentally substandard plants, or the export of pharmaceuticals, insecticides, and herbicides that do not meet the safety standards in the exporting country? No doubt a norm involving the responsibility of the exporting state may seem utopian at the present stage - and would be opposed by powerful economic lobbies. It does, however, touch on a reality that cannot be ignored in the perspective of global environmental management.
Responsibility for harm to the global commons
Lastly, there remains the problem of responsibility for damage to the global commons. Specifically: what indemnities are due, and who may claim them, for damage to environmental values that cannot be related to the sphere of sovereignty of any state (or to the interest of its citizens) but that are recognized as the objects of protection under customary international law ormore often - under treaty law? Antarctica, the high seas, the atmosphere, and outer space are examples. The endangered fauna and flora are others- as may conceivably be the preservation of genetic diversity seen as a distinct object of environmental concern.
Treaties generally include settlement-of-disputes clauses that allow the parties - i.e., member states - to submit claims for their violation to an impartial procedure of conciliation and arbitration. The Convention on the Law of the Sea - which has not yet entered into force - goes much further, by establishing a tribunal open not only to states, but also to private claimants and even to non-governmental organizations. Beyond this, the International Court of Justice has recognized, in its obiter dictum in the Barcelona Traction case17 that there exist basic obligations to the international community as a whole (erga omnes) that can consequently be asserted by any state. It may be assumed that this would apply also to serious harm to the global commons. And in the future, the legitimation to present such claims may be extended to intergovernmental organizations concerned with the environment.
Indemnities for damage to the global commons (as distinguished from the local commons, with respect to which claims by community organizations are increasingly- though not always fully - recognized by the courts) may conceivably be claimed by non-governmental bodies or by the state -including foreign states - also in tort proceedings before ordinary courts. If, as may often still be the case, their legitimation to present such claims is denied, the only avenue remains state-to-state litigation under public international law.
As regards the nature and amount of the compensation that might be claimed for harm to the global commons, it must be assumed that it would cover only the actual cost of reparation, reposition, and containment of the environmental damage (e.g., the cost of depollution and salvage of the affected fauna and flora and the cost of reasonable preventive measures). Beyond this, of course, there remain injunctive remedies, and penal sanctions under internal and perhaps - in the future - under international law; it has thus been suggested that international sanctions might include special fines or contributions channelled to a global environment fund.