11. The new law of state responsibility: improvement and caution

The present discussion about the global environment does not proceed in a vacuum, rather it is closely related to the evolution of environmental concerns throughout the century and consequently to the state of international environmental law. The question that remains to be answered is whether the evolution that has been described meets the requirements of global environmental problems, and if not, then to what extent further developments should be introduced in the applicable international law.

From the discussion so far it is clear that international law is not as obsolete as has been supposed by some authors since it has shown a remarkable capacity to adapt in response to new situations and concerns. Furthermore, a number of its approaches and rules - even among the most traditional - are of interest for the solutions required in the new dimension of environmental concerns. But there are of course also important shortcomings. The major issues in this context will be discussed next.

Sovereignty and international cooperation

It is obvious that solutions for global environmental questions require increased international cooperation, both regionally and globally. International law has long subjugated national sovereignty to this end, particularly in the environmental field. In this regard there are no major conceptual difficulties. A different proposition altogether is that which advocates the virtual elimination of national sovereignty in this field;¹²⁵ however, neither international law nor the political will of states is quite ready for this radical step. The expanding scope of international environmental law is the best evidence of the progress made by international cooperation.

Sources of global environmental law

Concern has been repeatedly expressed that as a source of environmental law, treaties are inadequate in view of the time lags between signature and entry into force, the occasional need to adopt national implementing legislation, and above all that consensus or unanimity in their negotiation often results in the lowest common denominator substantively.¹²⁶ While this criticism is valid to a large extent, it overlooks the important fact that most of the basic principles of modern environmental law have emerged not so much from treaties but from case-law, general principles of law, declarations of principles, and customary law.

Thus there is great flexibility as to the sources of the law that may be used to fashion new approaches, such as the development of general principles, adoption of declarations, preparation of a framework convention to be supplemented by means of protocols and other agreements, or the recourse to regulatory instruments adopted by international institutions that might be established. The limit to this flexibility is not related to the form of the various legal instruments but to their substantive policy content, which must be generally acceptable to states, economic agents, and public opinion, in both the developed and the developing world.

A new basic legal principle

As a result of the evolution of international law a new basic legal principle can today be identified: the acceptance in state practice of responsibility for environmental damage. This means in fact that there is a legal obligation not to degrade the environment. However difficult it might be to put this principle into operation, the fact is that it has already been established under international law and a number of domestic legal systems.

A number of new corollary obligations have gradually been attached to this principle: the duty to notify and consult, the need to obtain prior consent of other states for given activities, state responsibility for given activities of private operators, and development of early-warning mechanisms and environmental-impact assessments.¹²⁷ Most of these obligations are preventive, thus responding to the new emphasis of international law on this point. The fact that many of these obligations operate only in the context of specific treaties or subject matters does not alter the trend toward a more generalized application. In the course of this evolution it is quite probable that additional obligations will emerge, such as information sharing, forecasting, and monitoring.

These are the bases on which the primary rules have been developing at a rapid pace. It is unlikely, however, that a comprehensive agreement dealing with all aspects of the environment will be achieved in the short or medium term, unless it were of a very general nature and built on successive compromises, which could well de feat its original purpose.¹²⁸ It is more likely that the law will continue to develop piecemeal within the context of specific areas or issues; however, the cumulative effect of such developments represents significant progress across the board.

Developing the law of state responsibility

In addition to the role played by traditional rules of state responsibility, new conceptual and normative approaches have been developed, a number of which attend specifically to the needs of environmental protection. A first major development is that due diligence is no longer equated with fault, such that now failure to observe due diligence will amount to a violation of the substantive obligation under primary rules and hence engage responsibility regardless of fault. An important consequence of this development is that it will often provide the basis of responsibility for the activity of private operators.

A second fundamental development is related to the effect of strict liability: in addition to delinking responsibility from fault, it goes one step further in that it may also engage responsibility in spite of due diligence having been observed. Precisely because of this very innovative characteristic, strict liability is only found today in specific conventional regimes, but it could well become generalized in the future.

A third major area of development relates to state liability for acts not prohibited by international law, which is the natural outgrowth of the developments just described. Here responsibility is delinked from the traditional requirement of international law that the act be unlawful in nature. It is not difficult to foresee that this approach will be gradually and increasingly applied to environmental questions.

A fourth area of important development concerns the question of damage. As mentioned above, one point of view holds that damage is no longer a constitutive element of responsibility, there being damage implicit in the violation of the primary obligation. Certainly damage need not be of an economic nature. The environment thus becomes a protected value on its own merits and eventually damage will not need to be proved. The net result is that the operation of responsibility or liability becomes very efficient as compared to traditional standards.

Extending the protection of the affected interest

Obligations erga omnes are beginning to emerge in the environmental field and might even become the basis of a rule of jus cogens. This latter development, however, will take some time to materialize. Similarly, the effort to typify an international crime does not meet with general approval today.¹²⁹ There have been proposals for declaring environmental harm a delicta juris gentium, like piracy, and even to establish some form of international criminal court to deal with the matter,¹³⁰ but this is not quite a realistic or feasible approach. The concept of actio popularis as such will also take time and it is not currently favoured by international law. However, a number of steps are being taken to facilitate claims, particularly in terms of equal access to domestic courts and related issues. Problems such as concurrent claims, the intervention of international institutions, the distribution of compensation, and others will be solved without much difficulty on the basis of precedents or technical rules. The following additional developments could be encouraged to make the operation of responsibility and liability more timely and effective:

- Assign responsibility and liability directly to the operator in given activities, as is evident in the Antarctic minerals regime.

- Require subsidiary state liability when the private operator cannot meet its obligations.

- Establish unlimited liability for given activities, while allowing for limited liability in relation to each basic component or segment: for example, the operator, the insurance company, special funds, and the state.

- Enlarge limits of liability presently affecting international funds or other potential sources of compensation.

- Introduce "product liability" to extend responsibility to the ultimate source of harm.

- Require environmental assessment in project financing or other major actions.

- Develop insurance and financial guarantees such as environmental bond posting.

- Develop appropriate rules on jurisdiction so as to easily identify and have recourse to the competent forum, with particular emphasis on the establishment of international claims commissions.

- Eliminate the requirement of exhausting local remedies in given situations or emergencies.

- Abolish immunity from legal process.

- Develop shared liability schemes among private operators.

-Establish liability for wrongful enforcement measures.

- Expand the definitions of pollution and environmental damage to include large ecosystems.

- Develop alternative methods of compensation for when the entity involved in environmental damage obtains relief on the ground of natural disaster or other exceptional circumstances.

New directions of the law

In one way or the other, examples of all of the above can be found in contemporary international law and the related domestic legal developments. Thus the critical step is not to design new concepts or mechanisms, but rather to ensure a more generalized application of such rules beyond the conventional regimes that have established them. This may be accomplished either by enacting additional or more comprehensive regimes or by developing general principles of law and customary international law.

There are, however, new conceptual developments and specific measures that are only beginning to enter the domain of international law or have only limited precedent in the law related to environmental protection.¹³¹ The three most important new concepts in international environmental law are those related to intergenerational equity, the relationship with human rights, and the security dimension of environmental protection. All three are at the very heart of the preventive emphasis that international law has assumed.

The broader conceptual framework that has evolved is leading to the discussion of new types of measures or approaches:

- Inspection, verification, and enforcement are becoming the keys to successful compliance with the law, more so than the ex post facto sanction of responsibility and liability. In all these matters international law is most experienced.

- Early-warning systems are being increasingly recognized as an effective mechanism for prevention and minimizing damage to the environment.

- Monitoring of the environment is also an increasingly accepted approach since it provides appropriate information for triggering the warning steps and, eventually, emergency responses.¹³² However, monitoring involves the danger of encroaching upon legitimate decisions or actions appertaining to national sovereignty and thus requires very balanced implementation. To this end international cooperation can be harmonized with national monitoring. In addition, cooperative arrangements and plans can easily be developed for monitoring common spaces and extended to planetary monitoring systems.

- Assistance in the field of environmental protection is beginning to develop as a new type of measure. In part this approach relates to technical assistance and emergency assistance, including the establishment of appropriate international centres. However, assistance also relates in part to the major problem of industrial reconversion and its enormous costs. In this last dimension it is basically a problem of financial assistance.

- The role of scientific advisory bodies is being enhanced in the context of these new developments and is particularly relevant as to warning, monitoring, and delivering assistance.¹³³ Since this approach was used in the Trail Smelter case, it has been repeatedly applied to numerous conservation and environmental regimes. Beyond any doubt this role will continue to develop. In addition, useful suggestions have been made for the establishment of similar expert bodies in international environmental law.¹³⁴

- Recourse to scientific bodies also relates to the concern that environmental regimes be adapted and updated in light of new scientific knowledge and experience. Adaptation by means of protocols, annexes, and other procedures is also an expression of this concern.

- Licensing in accordance with environmental criteria has been applied in a few regimes, such as endangered species¹³⁵ and dumping of wastes.¹³⁶ Suggestions are being advanced to establish an international licensing system much broader in nature and extent.¹³⁷ Controlling individual private corporations by means of this environmental regulatory mechanism has also been suggested.¹³⁸ While Justified in very specific circumstances, this approach should be used with the greatest of caution since it could well lead to some "world environmental governance" scheme that would not only run counter to national sovereignty concerns but also impinge on the freedom of private enterprise and market economies that characterize the world today.

- International auditing procedures based on reporting by states has also been suggested as a kind of preventive measure, following the model of the International Labour Organisation and human rights regimes.¹³⁹ Failure to comply with the agreed standards could trigger a process of economic or legal sanctions, including the request of an injunction from a judicial organ. It should be noted, however, that sanctions of this type have never been successful in international law. Thus it may be more effective to rely either on the preventive mechanisms outlined above, including compliance and enforcement, or on the traditional sanction of international law requiring payment of compensation.

- Establishing international funds for the payment of compensation is another of the major trends of the law in this field. This approach can also help meet the new requirements of intergenerational equity. The limited experience with existing funds shows that there is a trend to relax the limits of compensation and other restrictions originally envisaged. In addition to an oil-pollution fund,¹⁴⁰ the World Heritage Fund,¹⁴¹ and the trust funds established by UNEP for the marine environment,¹⁴² there are a number of proposals for extending the practice to other areas: the Antarctic minerals regime,¹⁴³ the World Atmosphere Fund proposed by the 1988 Toronto Conference,¹⁴⁴ the control of carbon dioxide emissions, and the maritime carriage of certain substances.¹⁴⁵

Existing international funds are normally financed by means of contributions. By contrast, a number of national funds are being financed by levies on the pertinent activities: 36 states in the United States have established funds for contingencies related to hazardous wastes financed by those generating the waste or storing jt,¹⁴⁶ and France applies an air-pollution charge for certain emissions of sulphur dioxide.¹⁴⁷ Other funds rely on severance taxes on coal, oil and gas, minerals, and timber.¹⁴⁸ Relying on this experience, some have proposed that the World Atmosphere Fund be partly financed by a levy on fossil-fuel consumption and that other funds should apply levies on emissions of greenhouse gases, movement of tropical timber, and other related activities.¹⁴⁹ Here again the greatest caution should be used for the same reasons explained above.