|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|
In many instances environmental damage will affect the territory of a given state and thus provide the legal basis for the exercise of claims. Increasingly, however, damage extends to areas beyond national jurisdiction and thus becomes global in nature. This situation prompts the question of who shall be entitled to a claim, demand the termination of the activities in question, and eventually receive compensation. Because of the need to avoid competing claims and the lack of institutions representing the interest of the international community, international law has so far been reluctant to recognize an actio popularis, requiring instead a direct legal interest on the part of states.
As the Italian document correctly points out, this situation could lead to the unacceptable result of leaving a case of serious damage without any remedy.48 International law has begun to react to this new challenge in several ways. Firstly the public interests of the world community are gradually being recognized since the Barcelona Traction case.49 The violation of obligations erga omnes would provide legal standing to all states to react. Secondly, the concept of jus cogens also provides a legal ground for the action of states not directly damaged. And finally, the rules of the Law of Treaties on the breach of a multilateral treaty equally allow for the action of all states concerned.50 In addition, the work of the International Law Commission on the codification of the Law of State Responsibility follows a similar orientation.51
While lacking judicial or arbitral precedents, the view has been expounded to the effect that any state may bring a claim to redress the violation of an obligation owed to the international community as a whole and request that the threat of environmental damage be terminated.52 If this approach were adopted, a number of problems would still remain, but most of them could be handled by developing technical legal rules. Concurrent claims can eventually be harmonized by means of a balancing of interests, as seen to an extent in the field of antitrust laws and concurrent jurisdictions. International institutions could eventually be empowered to proceed on behalf of the international community, thus avoiding numerous individual claims. The beneficiary of compensation could also be determined as the process of institutionalization progresses in the environmental field. Precedents for solutions along these lines already exist in the regimes created for the marine environment and the Antarctic.
The apportionment of responsibility also reflects the evolution of the law. When two or more states are involved in an activity giving rise to responsibility, the ensuing liability will be apportioned among them.53 This principle also justifies the apportionment of responsibility between a state and private operators under its control, or the operation of subsidiary liability in given instances. This limited extension of responsibility is the initial reaction of the international legal system to the fact that every passing day, it is more difficult to identify a single source of given forms of pollution. What international law has not yet done, but could very well do in the near future, is to extend responsibility beyond the state undertaking an activity to reach the entity ultimately responsible for pollution (for instance, the manufacturer of defective equipment).54 This corresponds to what is known in domestic law as "product liability."
Given that international law has been broadening the definition of pollution and environmental processes in order to include large ecosystems and that the emphasis has clearly been put on the development of preventive measures, the consolidation of the obligation to notify and consult has been, as noted above, another major development.55 While consensus on this point could not be attained at the Stockholm Conference,56 principally because of the concern of delaying development projects in an excessive manner, gradually such obligations have become accepted. These obligations were finally consolidated in the aftermath of the Chernobyl accident in the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986).57 The policy of major lending institutions evaluating the environmental effects of projects applying for financing has also helped to reduce the concern about excessive delays referred to above.58
Most of these developments have arisen out of specific areas of environmental interest and concern, such as the marine environment, Antarctica, outer space, nuclear-test bans, weather modification, and others. Some of these areas will be examined individually below, focusing on their historical development and on their potential to evolve into the corpus juris gentium including treaties, customary law, and general principles of law. It is this broader corpus that is now beginning to be applied to large-scale climatic changes in the world.
Domestic law has also had a major input into this process of material change. From United States domestic law come the procedural arrangements for the participation of foreign states in the domestic planning process or the presentation of claims.59 In fact, under both the Clean Water Act60 and the Clean Air Act,61 a foreign state can participate, on conditions of reciprocity, in hearings for the revision of a state implementation plan in order to eliminate adverse consequences for that foreign state. Also under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,62 a foreign claimant may assert a claim in given circumstances as if it were a United States claimant. Some of these arrangements are of evident interest for international law.
Another development of interest under domestic law is the requirement of an environmental-impact statement for major actions, including occasionally the effects on the global commons. Actions of this kind are envisaged, for example, in the United States National Environmental Policy Act (1969),63 the Executive Order on Environmental Effects Abroad of Major Federal Actions of 1979,64 and the policy of the Nuclear Regulatory Commission.65