Compliance and Enforcement

• Interstate claims based on state responsibility– End up in court

– Complex, technical, multilateral

– Proof difficult

– About reparation after damage

– States reluctant to accept

BUT IMP TO UNDERSTAND

• Env regimes are preventive– How to enforce preventive obligations?

– Institutional monitoring, supervision

– Community pressure

– Apply principles of equity, need flexibility in solutions

– Negotiate, mediate, alternative dispute resolution

State responsibility

• Responsibility upon breach of INT law– treaty

– Customary

– General principles

• Resp only of the state

Codification of customary laws of State Responsibility- ILC

Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001

Part I (art 1-27)-elements needed for wrongful act

Part II (art 28-41)- consequences of responsibility

Part III (art 42-59)- implementation, countermeasures

- no criminal liability

- no separation between contractual (treaty) and tortuous (fault, negligence, intent) liability

Art 1: Every internationally wrongful act of a state entails the international responsibility of the state.

Wrongful = unlawful under int law, not national (art 3)

Act= act or omission

State: all states

State Responsibility

State Responsibility

Art 2: (a) An internationally wrongful act consists of acts or omissions attributable to the state

And(b) Constitute a beach of an

international obligation

Attributable (art 4 – 11) -Not private actions- Corfu Channel case (UK/Albania

1949)- Youmans Claim (Mex/US 1929)- Yeager v Iran 1987- Short v Iran 1987- Nic v US 1986

State Responsibility

Once attributable, is state responsibility strict/objective or fault-based/subjective?

Subjective:

• Home Missionary Society Claim ( )

• Corfu Channel case (UK/Albania) 1949 (dissent)

Objective:

• Youmans Claim 1929 (Mex/US)

• Caire claim 1929 (Fr/Mex)

State Responsibility

From where does an international obligation arise?

-breach of treaty

-violation of customary law

-violation of general principles of law

-violations of ius cogens rules

Damage not necessary art 2(b)

State Responsibility

Defences – preclude wrongfulness (art 20-27)

• Consent

• Self defence

• Legitimate countermeasures (Gabcikovo)

• Force majeuer (Rainbow Warrior)

• Distress (Rainbow Warrior)

• Necessity (Torrey Canyon, Rainbow Warrior, Gabcikovo)

• Compliance with peremptory norms (Gabcikovo)

State Responsibility

Legal Consequences (mainly art 30, 31)

- cease act (art 31)- Reparation (Chorzow factory case

1928 Ger/Po, art 31) to obtain as close as possible the condition it was before

How? (art 34-39)

By restitution (Chorzow factory, Temple case 1962, art 35)

Monetary compensation (art 36, Rainbow Warrior)

Satisfaction (art 37, Rainbow Warrior)

State responsibility

• Procedural requirements (art 42-48)– Notice of claim

– Exhaustion of local remedies

– Admissibility

• Conditions on using countermeasures (art 49-53)– Not to force compliance, temporary

– Must still conform to other fundamental norms

– Must be proportional to injury suffered

– Give notice, negotiate

– Not if act has ceased, dispute resolution pending

State Responsibility

Problems of applying state responsibility rules to transboundary environmental harm

• Private actor• Activity itself is lawful under normal

conditions• Procedural problems (local remedies

rule)• Proof of damage • Legal consequences:-Cessation of activity may be

unacceptable (Mines de Potasse case)

-restitution may not be possible-compensation for what type of

damage, if purely env, common heritage/common concern - no compensation

State Responsibility

3 cases of state responsibility

1. Trail Smelter:

Breach of customary law- wrongful act-state responsibility

Private actor-attributability

Legal consequences?

State Responsibility

2. Environmental liability for acts by Iraq during invasion of Kuwait 1991

• unlawful invasion state responsibility under UNSC Resolution 687– Transboundary air/water pollution

caused by oil well fires, harm to humans through environmental damage and direct health effects

– destruction of natural resourcesLegal consequences-cessation?-reparation-restitution?, monetary

compensation?, satisfaction?

State Responsibility

3. Cosmos claim 1978 (Can/USSR)

• Breach of Convention on International Liability for Damage by Space Objects Treaty 1972

strict state liability incl for environmental damage

State Responsibility

• Breach of due diligence standard actionable (eg Chernobyl) under treaty law or possibly under customary law

State responsibility

BUT if no breach of due diligence and still harm?....

State Responsibility

ILC Draft Articles on State Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law

Now called: Prevention of transboundary harm from hazardous activities 2001

all prevention obligations + procedural

-cooperate-monitor, use int org-authorize based on tb harm

assessment- Notify of risk, consult, use

equitable balancing (art 10)- Exchange info, public access

wo discrimination

State liability

• Dispute settlement incl fact finding

-no mention of state responsibility

-private international law solutions?

-private/public international law solutions?

(State Responsibility)

International civil liability regimes:

• regional, European for general env damage – not in force

• Regional, European freshwater regime for industrial accidents – not in force

• Global, maritime oil pollution – in force

• Global, nuclear incidents – in force

• regional, hazardous goods/waste transport – not in force

(State Responsibility)

International civil liability regimes

Who pays in regimes in force?(i) The polluter: only in maritime oil is

the polluter pays principle completely accepted

Oil:-ship owner-oil processing industry-tanker manufacturer (to come)

Nuclear:-operator-the harming state owning nuclear

installation-fund by all nuclear statesWho pays in those not yet in force?Polluter (transporter, operator)

(State Responsibility)international civil liability regimes

International civil liability regimes

-liability is limited in amount

-time clause

-initially only damage to persons, property

-newer regimes also env damage but not in force

(State Responsibility)international civil liability regimes

International civil liability regimes not yet

-for transboundary damage from water, air pollution

-generally no protection for common heritage/common concern areas

+polluter pays principle is limited, clashes between environmental protection and economic development

Compliance and enforcement in int env law

• Rare through state resp• Some civil liability schemes• Mostly through institutional

enforcement of preventive measures– Generally through regime, sometimes

through int org (IMO, IAEA…) wider if ngo/civil participation, generally not international management

– Data gathering, assessing reports

– Fact finding, monitoring

– Negotiated solutions, allocation of resources, flexible

– Assisting – financial/technical

– Market mechanisms• Emissions trading

• Trade control