Liability and Compensation Regimes Related to Environmental ...

Liability and Compensation Regimes Related to Environmental ...

LIABILITY AND COMPENSATION REGIMES RELATED TO ENVIRONMENTAL DAMAGE Ricardo Crespo Contents 1. General Backround 2. State Responsability 3. Sate Responsability and State Liability 4. Liability in international conventions 5. Civil Liability Regimes 6. Conclusions General Backround

Numerous cases of severe damage to the environment that have affected the territory of countries all over the world. Global risk. commons are at

1984 Bhopal disaster, 1986 gas leak Chernobyl nuclear power plant accident.

1986 Basel chemical spill into the Rhine Cyanide spill in the year 2000 from the Baia Mare mine in northwestern Romania. Marine oils pill incidents that have caused massive damage to the coasts of a number of countries. Common examples include: Land contamination as a consequence of industrial

accidents. Improper handling and disposal of waste; Water contamination as a result of various causes including discharge of untreated industrial effluents; Loss of biodiversity due to a wide variety of impacts including habitat loss and introduction of alien species. Tort Law In general, concepts of liability and compensation stem from the principles of tort law in which a wrongful act causing injury permits the injured

party to obtain compensation, usually in the form of money damages, through a private civil action against the person who caused the injury. Questions Who should be held responsible for environmental harm? Who should pay for the costs involved in pollution clean-up and restoration of the damaged

environment? What should be the standards for acceptable cleanups? Legal liability is one way of forcing major polluters to repair the damage that they have caused, to pay for those repairs or to compensate someone for the damages if the damage cannot be repaired. Liability is a necessary to ensure that persons

responsible for non-compliance resulting in environmental damage face the prospect of having to pay for restoration of the affected environment or compensating for the damage caused. Types of Liability Civil liability operates on the level of national law, and creates a relationship between the person liable and the person injured by conduct for which he/she is held responsible. State responsibility, operates on the plane of public international law. It creates a relationship not between two or more individuals but between two or more states. The state, rather than a private individual, must provide a remedy

for damage that occurs as a consequence of a breach of an international legal obligation established by treaty or rule of customary international law. State liability : has been developed chiefly by the United Nations International Law Commission (ILC), usually refers to the responsibility that a state faces for harm occurring as a consequence of a lawful activity, independently of whether there was any violation of an international norm. Polluter Pays Principle (PPP) Liability can be seen as a mechanism for implementing the Polluter Pays Principle (PPP).

The PPP was originally adopted by the Organization for Economic Cooperation and Development (OECD) in 1972, contemplates the internalization of pollution-control costs. 1992 Rio Declaration (Principle 16) National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into

account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. STATE RESPONSIBILITY AND THE ENVIRONMENT The law of state responsibility is customary international law, developed by state practice and international judgments. Enforcement

of public international law is rather limited because states participate on voluntary basis and reciprocal obligations, customary international law is binding on the states, as it is evidence of generally accepted state practice and opinion iuris accepted as law. The concept of state responsibility only covers the case of breach of the states own obligations owed to another state or states. These obligations extend to the duty to ensure that activities undertaken by private parties do not cause

harm to the territory of other states, as indicated by the Trail Smelter Arbitration, but do not include the responsibility of the private parties themselves. The latter is the object of civil liability regimes, which are designed to allow private individuals or organizations causing transboundary environmental harm to be held responsible for such damage. The concept of state responsibility makes an obligation for states to act in conformity with the international agreements or customary law. Since the concept of state responsibility is applicable to the

field of environment, the breaches of treaty or customary international law allow the injured state to lodge claim against injuring (violating) state whether by way of diplomatic action or by way of recourse to international mechanism where such are in place with regard to the subject matter at issue. Most important principles of environmental protection are imposed by customary international law. One of those principles is the principle of state sovereignty over its territory and natural resources, which is a fundamental and the

most important principle of international law in general. Throughout the history states could use their own natural resources in the way they want regardless of the impact to the territory of another state. is clear that this principle is no longer absolute . The limitation of territorial sovereignty is the obligation of states, not to act as to injure the rights of other states. State sovereignity also the principle of good

neighbourliness as well as the principle of state responsibility for causing the environmental damage in case that damage occurs. It Principles of Good Environmental Governance derived from the Rio Conference Intergenerational Sustainable Equity Use

Precaution Polluter pays Good neighbourliness Equity and fairness Principles of Customary International Environmental Law ( Ius Cogens) Decision of the ICJ December 2015, Case between Costa Rica and Nicaragua: 4 main principles of International Environmental Law: 1. Due Diligence ( Part XII Law of the Sea. Environmental protection of the marine environment)

2. Prevention: ( Part XII Law of the Sea) 3. Cooperation : Notification and Consultation. 4. Prior Environmental Impact Assessment: Pulp Mills CaseArgentina vs. Uruguay 2010. Prevention and Due Diligence should be reflected with Cooperation and EIA. Potential Principles of Customary International Environmental Law 1 . Precautionary Principle or Approach ( Principle 15 Rio Declaration). Additional manifestation of due diligence in environmental matters. 2. Public participation: ( Principle 10 Rio Declaration) 3. Principle of contemporeignity in the application of environmental norms. Treaties whether they refer to

environmental issues or not , have to be interpreted in the light of existing environmental norms at the time of the application of the treaty. (Opinion of Judge Weeramantry in the Gabikovo Nagymaros Project case 1997) Classical principles of international law Two potentially contradictory notions Principle of territorial integrity recognizes the right of states to be free of interference from

others Principle of territorial sovereignty recognizes the freedom of states to do as they like within their own territory. Principle 21 of the Declaration adopted by the 1972 Stockholm Conference on the Human Environment

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. 1992 Rio Declaration (Principle 2) States have, in accordance with the Charter of the

United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. Principle was repeated by Principle 2 in Declaration on Environment and Development, adopted by the 1992 Conference held in Rio de Janeiro.

Two most important soft-law instruments that have dealt with state responsibility for transboundary harm. Principle 22 of the Stockholm Declaration provides that states are to ...cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.

Principle 13 of the Rio Declaration called on States to develop national law regarding liability and compensation for victims of pollution and other environmental damage (Principle 13) States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.

Those principles are now included in various other binding and non-binding international instruments. They can be found in the relevant provisions of Article 194 (2) of the Convention on Law of the Sea (1982) and the Convention on Biological Diversity in Article 3. The decision in the Trail Smelter

arbitration is one of the most cited decisions by courts and tribunals in the field of state responsibility and the environment. The dispute was between United States and Canada because of the air pollution coming from the Canadian factory and causing the damage to crops in the United States. Trail Smelter arbitration: The tribunal decided: that under the principles of international law, as well as the law of the

United States, no state has the right to use or permit the use of its territory in such manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence This ban of causing harm to other state has been repeated in some other cases. In the Corfu Channel case in 1949. In this case United Kingdom suffered loss of human lives and damage to

their vessels because the explosions of mines in Albanias territorial sea. The International Court of Justice stressed that it was Albanias obligation to notify and warn about those mines. Court held Albania responsible, set the compensation and declared that obligation of each state is not to allow knowingly its territory to be used for acts contrary to the rights of other states. In the Lac Lanoux case, the dispute was between Spain and France about using the lake by France for generating electricity. It was needed to redirect part of the water to

another river. Spain claimed that it would affect the interest of Spanish users of river. The tribunal decided there was a principle which prohibits the upstream state from alerting the waters of a river in such a fashion as seriously to prejudice the downstream state. In the advisory opinion to UN General Assembly on the Legality of the Threat or Use of Nuclear Weapons the International Court of Justice stated that:

The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of corpus of international law relating to

the environment. The ICJ also recognized in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and in the Gabcikovo Case that: the existence of the general obligation of states to ensure that activities within their jurisdiction and control

respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment. Separate opinion of Vice-President WeeramantryIn the Gabikovo Nagymaros Project case (1997) concerning the controversy between Hungary and Slovaquia on the construction of a dam on the Danube River: We

have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating states, International environmental law will need to proceed beyond weighing rights and obligations within a closed compartment of individual State self interest, unrelated to the global concerns of humanity as a whole Gabikovo Nagymaros Project case Separate opinion of Vice-President Weeramantry: States that both the right to development and the right to environmental protection are principles currently forming part of the corpus of international law. They could operate in collision with each other

unless there was a principle of international law which indicated how they should be reconciled. That principle is the principle of sustainable development which, according to this opinion, is more than a more concept, but is itself a recognized principle of contemporary international law. Gabikovo Nagymaros Project case Separate opinion of Vice-President Weeramantry:The Court, as representing the main

forms of civilization, needs to draw upon the wisdom of all cultures, especially in regard to areas of international law which are presently in a developmental phase. Among the principles that can be so derived from these cultures are the principles of trusteeship of earth resources, intergenerational rights, protection of flora and fauna, respect for land, maximization of the use of natural resources while preserving their regenerative capacity, and the principle that development and environmental protection should go hand in hand. Conditions for state responsibility. Existence

of the international obligation or duty between two states. An act that violates that obligation Loss or damage that resulted from an unlawful act. It is always crucial to identify the international obligation which has been breached. The real problem of this concept is that state responsibility does not provide any duty for compensation for damage resulted from activities that are not prohibited by international law. Three main steps to raise a claim for

damages under international law: 1.Identifying the damaging activity attributable to a state 2. Proving the causal link between act and the damage. 3. Determining either a violation of international law or a violation of a duty of care (due diligence). Difference between State responsibility and State liability Two different legal concepts.

State responsibility asserts that a state that violates an international obligation has to repair harm caused to another state. According to Kiss and Shelton the Trail Smelter case is the basis for the discussion on responsibility and liability environmental law but it left open the question of whether a state executing due diligence would be liable if transfrontier harm results despite the State's best efforts. In the Trail Smelter case the tribunal did not clarify whether the state is liable only for

intentional, reckless or negligent behaviour (fault based conduct) or it should strict liability be applied. Therefore, in the international environmental law it is necessary to distinguish responsibility, which arises upon breach of an international obligation and liability for injurious consequences of lawful activities. State responsibility represents the consequence of, and sanction against, nonperformance by states of their international

obligations. (Brian D. Smith, State Responsibility and the Marine Environment, (Oxford University Press, 1988) p. 6 ). Objective theory of state responsibility: Just a violation of international law is relevant for the existence of state responsibility, regardless of the fault of the state. The ground for state responsibility depends on the content of an international obligation. Fault

responsibility theory: The supporters of the fault (culpa) theory took the Corfu Channel case as an example to justify their point of view. In this case the Court declared that a state which knows that a minefield has been located in its territorial waters would be obliged to notify states of its existence. However, the court did not mention fault (culpa) explicitly as a relevant condition for state responsibility, but supporters of the fault theory claimed that this was a clear proof that fault ( culpa) is a relevant element for the state responsibility. Obligations

which require no element of fault are those obligations entailing strict responsibility, responsibility for failure to achieve a required or to prevent a prohibited result without consideration of intent or diligence. Kiss and Shelton note that the legal consequences of environmental harm cover both state responsibility for violation of international law and liability for harm caused by activities allowed by a state. The latter is strict or absolute liability. States have historically showed great reluctance to

initiate proceedings even where environmental damage is very severe. The decision not to invoke the responsibility of the Soviet Union regarding the Chernobyl disaster is an example of that reluctance. After the explosion in the nuclear reactor, the radioactive cloud crossed the air above Sweden, Germany, Austria, Switzerland, Italy and the ex Yugoslavia. States accepted only to cooperate, but no other obligation was imposed. The Chernobyl disaster has shown that

states are afraid of possible liability of their own acts in the future. As the states refused to accept liability for transboundary harm, it shifted to civil liability and transposed the liability to the 'operator' or person in control of a hazardous activity. The difference between state responsibility

and state liability is that liability is based on the creation of risk . The reasoning behind this claiming is that the state creating risk and benefiting from the risk shall also incur the consequences in case harmful injury occurs even for lawful acts. Why should states be strictly liable for activities carried out, not by themselves but by private person on their territory. The

private persons who economically benefit from those activities should carry liability in a form of civil liability. Only in case of 'partial or total default the state should have subsidiary liability. In case of damage resulting from hazardous activities, state responsibility will be entailed only when rules on international law establish obligatory standards of safety to a state on whose territory the activities are carried out and the state has failed to

impose or to control. Due diligence means that the states are required to adopt legislative and administrative controls applicable to public and private conduct, with the objective to effectively protect other states and the global environment. Due diligence When the activity involves a risk of significant transboundary damage, the state is required to take all necessary measures to prevent it. By definition, due diligence is an obligation of conduct, not an

obligation of result. Due diligence is related to the principle of exclusive competence of a state on its own territory. If the activity which may have transboundary harm is performed by an individual on its territory, the state on whose territory the activity is performed must make sure to take measures for protection and control in order to prevent the harmful effects. State liability is defined as liability of state under public international law and civil liability means the liability of a natural or

legal person under the domestic legislation including the legislation established to implement the provisions of international treaty obligations. State responsibility and liability in international conventions 1982 Montego Bay Convention on the Law of the Sea, whose article 235 provides that: ...1. States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable

in accordance with international law... 1972 Convention on International Liability for Damage caused by Space Objects Establishes rules and procedures for damage caused by space objects and ensures the prompt payment of full and equitable compensation to victims of such damage. Establishes a regime of absolute liability for the launching state for damage caused by its space

object on the surface of the earth or to aircraft flight. State responsibility for environmental harm is a highly complex and rather controversial issue that has been the subject of ongoing discussions reflected in the 2001 set of draft articles on Responsibility of States for Internationally Wrongful Acts, developed by

the UN International Law Commission, after decades of study. Although articles refer to state responsibility in general terms, the articles are applicable to cases of State Liability for Lawful Acts The

International Law Commission has been working on the issue of International Liability for Injurious Consequences arising out of Acts Not Prohibited by International Law (Prevention of Transboundary Damage from Hazardous Activities) as a question of customary international law since 1977. According to the draft articles, states should take all appropriate measures to prevent significant transboundary harm or at any

event to minimize the risk thereof, and states concerned shall cooperate in good faith and, as necessary, seek the assistance of one or more competent international organizations in preventing significant transboundary harm or at any event in minimizing the risk thereof The International Law Commission adopted, at its

56th session in 2004, the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm arising out of Hazardous Activities. This is a set of eight principles, meant to apply to transboundary damage caused by activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences. State Liability for Lawful Acts Occur only if an international instrument

specifically provides for liability. Only very few international agreements do so: The Convention on International Liability for Damage caused by Space Objects provides for absolute liability without a wrongful act for damage caused on the surface of the Earth or to aircraft in flight (article II) and for fault responsibility for other kinds of damage (article III). State Liability for Lawful Acts Some

bilateral agreements: - 1964 Agreement between Finland and the Union of Soviet Socialist Republics (USSR) on Common Waterways, which provides that a contracting party that causes damage in the territory of the other contracting party through activities carried out in its own territory shall be liable and pay compensation While state responsibilities for environmental harm, as well as international liability for non wrongful acts are often discussed, states have seldom made recourse to

either of them. - Among other reasons: The difficulty of ascertaining the full extent of damages. The fact that often the damage to the environment cannot be fully remedied. The difficulty of establishing a causal link between the activity that allegedly caused the damage and the damage suffered. The rigidity of traditional forms of international responsibility and of dispute settlement mechanisms and therefore the preference for informal

mechanisms for settling environmental disputes. The concern about establishing precedents in a very delicate field of international relations. For these reasons, transboundary environmental cases are often resolved on an inter-personal level rather than among states, that is through recourse to private rather than public international law. This implies that the polluter and the victim appear directly before the competent domestic authorities. The transnational element present in these

cases can, however, give rise to problems of jurisdiction, choice of the applicable law, and enforcement of judgments, leading states to enter into treaties regulating the liability of private individuals for environmental harm. Civil Liability Regimes for Environmental Damage Prerequisites: There are one or more identifiable actors (polluters). 2) The damage is concrete and quantifiable, and

3) It is possible to establish a causal link between the damage and the actions of the identified polluter. 1) It is much easier to establish personal liability for activities such as industrial accidents, hazardous waste disposal, or water pollution from distinct point-sources such as end of pipe discharge of pollutants than it is for diffuse sources of pollution. Diffuse sources of pollution: Agricultural or urban runoff (non-point sources), acid rain or automobile pollution where

it is difficult or impossible to link the negative environmental effects with the activities of specific individual actors. Civil liability regimes can apply at the national and the international levels. Types of Civil Liability for Environmental Damage Fault liability. If liability is based on fault (wrong doing) the plaintiff must prove that the perpetrator acted with intent or that he/she acted negligently or without due care. Strict liability. If liability is strict, fault need not be

established. No intention to violate a duty of care or a norm and no negligence need be shown in a case to prevail. The plaintiff need only prove the causal link between the action of the alleged perpetrator and the damage. Strict liability regimes typically do provide for some defenses: A person may be exonerated from liability if: The damage was caused by: An act of God (or natural disaster), -An act of war,

Or by the interference of a third party. Strict liability has become an increasingly common form of liability for environmental harm. For example Art.- 396 of the Ecuadorian Constitution (2008) states that strict liability applies for environmental damages. The rationale for strict liability is that an actor that profits from potentially harmful or inherently dangerous activities should be liable for damage that occurred as a result of the harmful activity, an application of the Polluter Pays Principle.

The distinction between strict liability and fault liability is not always clearcut. - Some strict liability systems allow defendants to avoid liability if they can demonstrate that they have used the best available technology to control pollution or that they have complied with their environmental permits . Absolute liability. Absolute liability differs from strict liability because it allows no

defenses to the perpetrator apart from an act of God. This type of liability is rarely imposed, and only for what are deemed ultra-hazardous activities, such as nuclear installations. Scope and Threshold of Environmental Damage In addition to traditional types of damage such as personal injury or property damage, environmental cases may result in damage to the environment itself (so-called pure

environmental damage). Damage is measured by the costs of remediating or restoring the impaired environment. Examples of pure environmental damage are damage to biodiversity or natural resources. An example of regime that recognizes damage to natural resources as such is the USA Comprehensive Environmental Response, Compensation and Liability Act of 1980, which covers damage for injury or loss of natural resources.

Article 72 of the Ecuadorian Constitution (2008) states that Nature has the right to be restored. Other examples: Italian Law N. 349/1986, art. 18 that establishes liability for natural resource damages. EUDirective 2004/35/EC on Environmental Liability: Damage to biodiversity. Contamination of sites can for instance take the form of contamination of soil, surface water or ground water, independent from whether or not human health or private

property is affected. Liability regimes for environmental damage normally contain clean-up standards and clean-up objectives. Clean-up standards: used to evaluate whether clean-up of a contaminated site is necessary. The main criterion for this decision is usually whether the contamination leads to a serious threat to human health or the environment. Clean-up objectives: identify the quality of soil and water that is acceptable for the type of economic activity that will be carried out at the particular location after clean up. Clean-up objectives may be established based on future land uses, the type of

technology available to remedy the contamination and cost considerations. Thresholds A number of civil liability instruments establish a threshold, beyond which environmental damage is deemed significant and therefore justifies the imposition of liability, although this level may vary significantly from one country to another. Article 289: Ecuadorian environmental Code: The National Environmental authority will determine the scope and criteria to characterize and

evaluate the environmental damage as well as the different preventive and restoration measures. Who is Liable? Cornerstone of an effective liability regime. In most conventions, the operator or owner, typically the person who exercises control over an activity, is liable. This is consistent with the Prevention and PolluterPays Principles, because it provides an incentive to the person who carries out the activity to take preventive steps to eliminate or reduce the risk of damage, and a compensation mechanism to pay for

the costs of environmental harm caused by the activities. Difficulties to determine which specific individual or organization caused environmental harm: If several waste generators dispose of the same chemical in a landfill, it may be impossible to identify the particular portion of the contamination that can be attributed to a specific contributor to the overall problem. Some liability regimes hold all of the parties that disposed of a particular contaminant liable for cleaning up the entire site.

This form of liability is referred to as joint and several liability because each of the polluters can be held responsible for the cost of the entire cleanup. Forms of Compensation In most cases of environmental damage, the victim is likely to seek financial reparation to cover the costs associated with material damage to environmental resources. Problems arise because environmental damage cannot be addressed with the

traditional approach of civil liability, that is, to compensate for the economic costs of the lost or damaged property Pure environmental damage may be incapable of calculation in economic terms, such as in the case of loss of fauna and flora which is not commercially exploited and therefore has no market value and in the case of damage to ecosystems or landscapes, economic value cannot be assessed with and in traditional approaches.

A fairly widely accepted solution to this problem is to calculate the damage in the basis of the link between reasonable costs of restoration measures, reinstatement measures or preventative measures. Environmental liability regimes may also foresee compensation for further damages exceeding those related to the adoption of such restoration measures, when both restoration and comparable measures, are not technically feasible or not reasonable. The fact that environmental damage is irreparable or unquantifiable should not result in an exemption from

liability. Criteria for the calculation of damage used in different legal systems Linking the damage to the market price of the environmental resource (such as in the Trail Smelter Case) Linking the damage to the economic value attached to its use, for example, (travel costs made by individuals to visit and enjoy an environmental resource amenity). Extra market value of private property where certain environmental amenities are located.

Willingness of individuals to pay for the enjoyment of environmental goods, such as clean air or water or the preservation of endangered species. Insurance Most civil liability regimes require the operator to establish financial security, usually in the form of insurance, to ensure that the risk of liability is covered. Compulsory insurance is used as a means to secure that adequate payment of compensation is made and to avoid the bankruptcy of companies that have to

compensate for severe damages. However, compulsory insurance systems could reduce the incentive for potential polluters to exercise caution and prevent damage. Funds Another mechanism utilized to ensure the coverage of damage is the creation of victim compensation funds, which are replenished by the operators of the specific sector for which the fund is established. These funds are intended to provide compensation for victims and paying for the remedying of

damages in cases where, for different reasons, compensation cannot be provided by the operator. Such funds are very common in international regimes regulating oil pollution from ships. International Civil Liability When plaintiffs resort to private law to address transboundary environmental issues a number of unique issues are raised : Which court in which country has jurisdiction over the matter. Which countrys laws apply, and where and how

can the judgment of the court be enforced. - States have sought to overcome these and other problems through treaties regulating the liability of private individuals for environmental harm. Most of the treaty regimes:

Define the activities or substances and the harm covered. The criteria to establish who is liable. The standard of care that must be exercised to avoid liability and provide exceptions from liability. Most agreements set limitations on the amount of liability and provisions for enforcement of judgments. Include provisions on mandatory insurance or other financial guarantees and establish funds. Several treaties establish rules on civil liability for environmental or related damage, generally with respect to specific activities,

such as nuclear installations, oil pollution and hazardous wastes. One example in Europe is the Lugano Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, adopted in 1993, but not yet in force). The 1993 Lugano Convention Aims at ensuring adequate compensation for damage resulting from activities dangerous to the environment and also provides for means

of prevention and reinstatement. It only applies to dangerous activities, defined as an open-ended category that includes but is not limited to: hazardous substances specified in Annex I, genetically modified organisms, micro-organisms and waste. The 1993 Lugano Convention It covers all types of damage: Loss of life, personal injury, damage to property.

Loss or damage by impairment to the environment. Costs of preventive measures (both traditional damage and environmental damage) when caused by a dangerous activity. The 1993 Lugano Convention The operator is strictly liable for damage caused during the period when he/she exercises control over that activity, and is required to maintain insurance. The operator may be exonerated from liability for damage if he/she proves that the damage was caused:

By an act of war, a natural phenomenon of exceptional character. An act done with the intent to cause damage by a third party. When the damage resulted from compliance with a specific order from a public authority. - Contributory fault on the part of the victim may also reduce the amount received in compensation. - Actions for compensation must be brought within three years from the date on which the claimant knew or ought reasonably to have known of the damage and of the identity of the operator. - In no case shall actions be brought after thirty years from the date of the incident which caused the damage.

The International Convention on Civil Liability for Oil Pollution Damage (CLC) - Adopted in 1969 and amended by the Protocols of 1976 and 1992. Was adopted under the auspices of the International Maritime Organization (IMO) in response to the Torrey Canyon oil spill disaster of 1967. - Establishes a regime to guarantee the payment of compensation by shipowners for oil pollution damage. The International Convention on Civil Liability for Oil Pollution Damage

Places the liability for such damage on the owner of the ship from which the polluting oil escaped or was discharged. The shipowner is strictly liable unless the incident is caused by war, a natural phenomenon of exceptional character, a malicious act of a third party, or through the negligence of the government. The 1992 Protocol widens the scope of the convention: - Covers pollution damage in the Exclusive Economic Zone (EEZ). -Extends the scope of the Convention to cover spills from sea- going vessels constructed or adapted to carry oil in bulk as cargo It applies to both laden and unladen tankers. -Includes spills of bunker oil from such ships. - Limits liability to cost incurred for reasonable measures to reinstate the environment.

The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND) - Adopted in 1971 and amended by the Protocols of 1976 hand 1992. - Adopted under the auspices of IMO to ensure that adequate compensation is available to persons suffering damage caused by oil pollution discharged from ships in cases where compensation under the 1969 CLC was inadequate or could not be obtained.

Other Conventions related to oil pollution The 1996 International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS) . The International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Oil Pollution). The Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for and Exploitation of Seabed Mineral Resources (Seabed Mineral Resources) was adopted in 1977. ( Not yet in

force) Nuclear Installations OECD Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention), concluded in 1960 entered into force on April 1, 1968. International Atomic Energy Agencys Convention on Civil Liability for Nuclear Damage (Vienna Convention) concluded in 1963 and their Joint Protocol relating to the Application of the Vienna Convention and the Paris Convention

(Joint Protocol) was adopted in 1988 The 1960 Paris Convention: The objective is ensure adequate and equitable compensation for persons who suffer damage caused by nuclear incidents. -Covers cases of gradual radioactive contamination, but not normal or controlled releases of radiation. Establishes a regime of absolute liability for the operator of a nuclear installation for damage including loss of life, and damage or loss to property other than the nuclear installation itself. - The limitation period to bring forth a claim is ten years, although nations

may shorten this time to a period of not less than two years from the date the claimant knew or ought to have known of the damage and the identity of the operator liable Other conventions on nuclear damage The Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (NUCLEAR Convention), was adopted in 1971. The Convention on Supplementary Compensation for Nuclear Damage (CSC)

adopted in 1997. Hazardous Wastes Regime Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal (Basel Protocol) adopted in 1999 as a Protocol to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention).

Basel protocol Damage includes traditional damage (loss of life, personal injury or damage to property), economic loss, and the costs of reinstatement and preventive measures (environmental damage). Liability is strict and the notifier or exporter is liable for damage until the disposer has taken possession of the wastes.

Fault-based liability can be imposed for intentional, reckless or negligent acts or omissions. The notifier is exonerated from liability if he/she proves that damage was the result of an armed conflict or war, a natural phenomenon of exceptional character, compliance with state law, or the intentional conduct of a third party. In any case, all transboundary hazardous waste movements must be covered by insurance. Basel protocol It applies only to damage suffered in an area under the national jurisdiction of a state party arising from an incident as defined, as well as to areas beyond national jurisdiction and noncontracting states of transit, provided those states afford reciprocal benefits

on the basis of international agreements. -Places a cap on financial liability and the limits correspond to the units of shipment in tonnes (listed in the Annex B). Claims must be brought within ten years from the date of the incident and within five years from the date the claimant knew or ought reasonably to have known of the damage. - Claims may be brought in the courts where the damage was suffered, the incident occurred, or the residence or place of business of the defendant. Transboundary Waters Protocol

on Civil Liability and Compensation for Damage caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the

Transboundary Effects of Industrial Accidents (Civil Liability Protocol) adopted in 2003 but not yet in force (as of September 2005). Convention on the Transboundary Effects of Industrial Accidents (Civil Liability Protocol) - According to the Civil Liability Protocol: - Companies will be liable for accidents at industrial installations, including tailing dams, as well as during transport via pipelines. - Damage covered by the Protocol includes physical damage, damage to property, loss of income, the cost of reinstatement and response measures will be covered by the Protocol. - It sets financial limits of liability depending on the risk of the activity, based on the quantities of the hazardous substances that are or may be

present and their toxicity or the risk they pose to the environment. - Requires companies to establish financial securities, such as insurance or other - Contains a non-discrimination provision, according to which victims of the transboundary effects cannot be treated less favourably than victims from the country where the accident has occurred. The Nagoya Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety Adopted by the Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety on 15 October

2010. Liability and redress in the context of the Protocol concerns the question of what would happen if the transboundary movement of living modified organisms (LMOs) has caused damage. Article 4. Causation: A causal link shall be established between the damage and the living modified organism in question in accordance with domestic law.

Article 12. Implementation and relation to civil liability 1. Parties shall provide, in their domestic law, for rules and procedures that address damage. To implement this obligation, Parties shall provide for response measures in accordance with this Supplementary Protocol and may, as appropriate: Apply their existing domestic law, including, where applicable, general rules and procedures on civil liability; Apply or develop civil liability rules and procedures specifically for this purpose; or Apply or develop a combination of both.

2. Parties shall, with the aim of providing adequate rules and procedures in their domestic law on civil liability for material or personal damage associated with the damage as defined in Article 2, paragraph 2 (b): Continue to apply their existing general law on civil liability; Develop and apply or continue to apply civil liability law specifically for that purpose; or Develop and apply or continue to apply a combination of both. 3. When developing civil liability law as referred to in subparagraphs (b) or (c) of paragraphs 1 or 2 above, Parties shall, as appropriate, address, inter alia, the following elements: Damage;

Standard of liability, including strict or fault-based liability; Channelling of liability, where appropriate; Right to bring claims. Article 6. Exemptions Parties may provide, in their domestic law, for the following exemptions: Act of God or force majeure; and Act of war or civil unrest. Parties may provide, in their domestic law, for any

other exemptions or mitigations as they may deem fit. Article 7. Time limits: Parties may provide, in their domestic law, for: Relative and/or absolute time limits including for actions related to response measures; and The commencement of the period to which a time limit applies. Liability in the CBD Article

14.2 of the CBD merely states that [t]he Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter. The discussion of the Conventions work on liability and redress continues. Conclusions With

the exception of oil pollution regimes the rules of international law governing liability for environmental damage remain in their early phases of development particularly in relation to rules of state liability this is reflected after Chernobyl and in the remote prospect for the entry into force of the 1993 Lugano Convention. Significant developments include the adoption of liability protocols to the 1989 Basel Convention . Efforts are underway to establish new regimes in relation with the Antarctic Environment Protocol and the 2000 Biosafety Protocol which poses particular challenges in respect of defining what constitutes damage. In regard to state liability more cooperation called for by Principle 13 of the

Rio Declaration remains to be addressed. Sources Chapter 5: UNEP Training Manual on International Environmental Law http://digitalcommons.pace.edu/cgi/viewcontent.cgi? article=1789&context=lawfaculty Jorge E Viuales on environmental protection in customary international law. http://legal.un.org/avl/ls/Vinuales_EL_video_2.html Principles of International Environmental Law- Philippe Sands. Second Edition. Conclusions on Liability.

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