Responsibility and Liability for Environmental Damage: A Roadmap for International Environmental Regimes

By Teresa A. Berwick

This note discusses Responsibility and Liability for Environmental Damage , a resolution adopted by the Strasbourg Session of the Institute of International Law on September 4, 1997.

Increasing international recognition of the irreversible nature of environmental impacts led the Institute of International Law to focus on mechanisms that will facilitate the prevention of environmental harm. Related concepts such as intergenerational equity and sustainable development are also prominent throughout the resolution. The institute translates these concepts into practical recommendations such as the increased use of environmental impact assessments, the obligation to notify and consult states likely to be affected by harmful activities, the implementation of obligatory pre-paid collective reparation funds and comprehensive private or national insurance; and finally a shift in the burden of proof for proposed activities from affected parties being required to show unacceptable harm in advance to operators being required to prove the absence of unacceptable harm. The note also discusses the expansion of some of the more traditional compensation approaches in order to deter environmentally destructive activities, restore affected areas whenever possible, and fully compensate victims.

This note presents a workable set of guidelines for present and future international environmental regimes based on the concepts of state responsibility, broad multi-state participation in environmental impact assessments and reparation for harm to the environment.