FULL TEXT
Responsibility and Liability Under
International law for Environmental
Damage
Resolution adopted on September 4,
1997
Eighth Commission, Rapporteur: Mr.
Francisco Orrego Vicuņa
The Institute of International Law
Recalling the "declaration
on a Programme of Action on the Protection of the
Global Environment" adopted at the 65th Session of
the Institute in Basel;
Mindful of the increasing
activities that entail risks of environmental damage
with transboundary and global impacts;
Taking into account the evolving
principles and criteria governing State responsibility,
responsibility for harm alone and civil liability
for environmental damage under both international
and national law;
Noting in particular Principle
21 of the Stockholm Declaration and Principle 2 of
the Rio Declaration on the responsibility of States
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;
Realizing that both responsibility
and liability have in addition to the traditional
role of ensuring restoration and compensation that
of enhancing prevention of environmental damage;
Seeking to identify, harmonize
and to the necessary extent develop the principles
of international law applicable to responsibility
and liability in the context of environmental damage;
Desiring to make useful recommendations
for the negotiation and management of regimes on responsibility
and liability for environmental damage established
under international conventions in furtherance of
the objectives of adequate environmental protection
(environmental regimes);
Realizing that international
environmental law is developing significant new links
with the concepts of intergenerational equity, the
precautionary approach, sustainable development, environmental
security and with human rights law, as well as with
the principles of shared but differentiated responsibility,
thereby also influencing the issues relating to responsibility
and liability,
Adopts this resolution:
Basic Distinction on Responsibility
and Liability
Article 1
The breach of an obligation of environmental
protection established under international law engages
responsibility of the State (international responsibility),
entailing as a consequence the obligation to reestablish
the original position or to pay compensation.
The latter obligation may also arise
from a rule of international law providing for strict
responsibility on the basis of harm or injury alone,
particularly in the case of ultra-hazardous activities
(responsibility for harm alone).
Civil liability of operators can be
engaged under domestic law or the governing rules
of international law regardless of the lawfulness
of the activity concerned if it results in environmental
damage.
The foregoing is without prejudice to
the question of criminal responsibility of natural
or juridical personas.
Article 2
Without precluding the application of
rules of general international law, environmental
regimes should include specific rules on responsibility
and liability in order to ensure their effectiveness
in terms of both encouraging prevention and providing
for restoration and compensation. The object and purpose
of each regime should be taken into account in establishing
the extent of such rules.
International Responsibility
Article 3
The principles of international law
governing international responsibility also apply
to obligations relating to environmental protection.
When due diligence is utilized as a
test for engaging responsibility it is appropriate
that it be measured in accordance with objective standards
relating to the conduct to be expected from a good
government and detached from subjectivity. Generally
accepted international rules and standards further
provide an objective measure for the due diligence
test.
Responsibility for Harm Alone
Article 4
The rules of international law may also
provide for the engagement of strict responsibility
of the State on the basis of harm or injury alone.
This type of responsibility is most appropriate in
case of ultra-hazardous activities and activities
entailing risk or having other similar characteristics.
Failure of the State to enact appropriate
rules and controls in accordance with environmental
regimes, even if not amounting as such to a breach
of an obligation, may result in its responsibility
if harm ensues as a consequence, including damage
caused by operators within its jurisdiction or control.
The use of methods facilitating the
proof required to substantiate a claim for environmental
damage should be considered under such regimes.
Civil Liability
Article 5
While fault-based, strict and absolute
standards of civil liability are provided for under
national legislation, environmental regimes should
prefer the strict liability of operators as the normal
standard applicable under such regimes, thereby relying
on the objective fact of harm and also allowing for
the appropriate exceptions and limits to liability.
This is without prejudice to the role of harmonization
of national laws and the application in this context
of the standards generally prevailing under such national
legislation.
Article 6
Environmental regimes should normally
assign primary liability to operators. States engaged
in activities qua operators are governed by this rule.
This is without prejudice to the questions
relating to international responsibility which may
be incurred for failure of the State to comply with
the obligation to establish and implement civil liability
mechanisms under national law, including insurance
schemes, compensation funds and other remedies and
safeguards, as provided for under such regimes.
An operator fully complying with applicable
domestic rules and standards and government controls
may be exempted from liability in case of environmental
damage under environmental regimes. In such case the
rules set out above on international responsibility
and responsibility for harm alone may apply.
Article 7
A causal nexus between the activity
undertaken and the ensuing damage shall normally be
required under environmental regimes. This is without
prejudice to the establishment of presumptions of
causality relating to hazardous activities or cumulative
damage or long-standing damages not attributable to
a single entity but to a sector or type of activity.
Article 8
Subsidiary State liability, contributions
by the State to international funds and other forms
of State participation in compensation schemes should
be considered under environmental regimes as a back-up
system of liability in case the operator who is primarily
liable is unable to pay the required compensation.
This does not prejudice the question of the State
obtaining reimbursement from operators under its domestic
law.
Limits to Responsibility for Harm
Alone and Civil Liability
Article 9
In accordance with the evolving rules
of international law it is appropriate for environmental
regimes to permit for reasonable limits to the amount
of compensation resulting from responsibility for
harm alone and civil liability, bearing in mind both
the objective of achieving effective environmental
protection and ensuring adequate reparation of damage
and the need to avoid discouragement of investments.
Limits so established should be periodically reviewed.
Insurance
Article 10
States should ensure that operators
have adequate financial capacity to pay possible compensation
resulting from liability an are required to make arrangements
for adequate insurance and other financial security,
taking into account the requirements of their respective
domestic laws. Where insurance coverage is not available
or is inadequate, the establishment of national insurance
funds for this purpose should be considered. Foreseeability
of damage in general terms of risk should not affect
the availability of insurance.
Apportionment of Liability
Article 11
Apportionment of liability under environmental
regimes should include all entities that legitimately
may be required to participate in the payment of compensation
so as to ensure full reparation of damage. To this
end, in addition to primary and subsidiary liability,
forms of several and joint liability should also be
considered particularly in the light of the operations
of major international consortia.
Such regimes should also provide for
product liability to the extent applicable so as to
reach the entity ultimately liable for pollution or
other forms of environmental damage.
Collective Reparation
Article 12
Should the source of environmental damage
be unidentified or compensation be unavailable from
the entity liable or other back-up sources, environmental
regimes should ensure that the damage does not remain
uncompensated and may consider the intervention of
special compensation funds or other mechanisms of
collective reparation, or the establishment of such
mechanisms where necessary.
Entities engaged in activities likely
to produce environmental damage of the kind envisaged
under a given regime may be required to contribute
to a special fund or another mechanism of collective
reparation established under such regime.
Preventive Mechanisms Associated
with Responsibility
and Liability
Article 13
Environmental regimes should consider
the appropriate connections between the preventive
function of responsibility and liability an other
preventive mechanisms such as notification and consultation,
regular exchanges of information and the increased
utilization of environmental impact assessments. The
implications of the precautionary principle the "polluter
pays" principle and the principle of common but differentiated
responsibility in the context of responsibility and
liability should also be considered under such regimes.
Response Action
Article 14
Environmental regimes should provide
for additional mechanisms which ensure that operators
shall undertake timely and effective response action,
including preparation of the necessary contingency
plans and appropriate restoration measures directed
to prevent further damage and to control, reduce and
eliminate damage already caused.
Response action and restoration should
be undertaken also to the extent necessary by States,
technical bodies established under such regimes, and
by private entities other than the operator in case
of emergency.
Article 15
The failure to comply with the obligations
on response action and restoration should engage civil
liability of operators, the operation of back-up liability
mechanisms and possible international responsibility.
Compliance with the obligations should not preclude
responsibility for harm alone or civil liability for
the ensuing damage except to the extent that it has
eliminated or significantly reduced such damage.
Article 16
States and other entities undertaking
response action and restoration are entitled to be
reimbursed by the entity liable for the costs incurred
as a consequence of the discharge of these obligations.
While claims for these costs can be made independently
of responsibility for harm alone or civil liability,
they may also be consolidated with other claims for
compensation for environmental damage.
Activities Engaging Responsibility
for Harm Alone or Strict
Civil Liability
Article 17
Environmental regimes should define
such environmentally hazardous activities that may
engage responsibility for harm alone or strict civil
liability, taking into account the nature of the risk
involved and the financial implications of such definition.
Specific sectors of activity, lists
of dangerous substances and activities, or activities
undertaken in special sensitive areas may be included
in this definition.
Article 18
If more than one liability regime applies
to a given activity, the regime prepared later in
time should provide criteria to establish an order
of priority. The standard most favorable to the environment
or for the compensation of the victims should be adopted
for this purpose.
Degree of Damage
Article 19
Environmental regimes should provide
for the reparation and compensation of damage in all
circumstances involving the breach of an obligation.
In the case of a regime providing for responsibility
for harm alone, the threshold above which damage must
be compensated must be clearly established.
Article 20
The submission of a given proposed activity
to environmental impact assessment under environmental
regimes does not in itself exempt from responsibility
for harm alone or civil liability if the assessed
impact exceeds the limit judged acceptable. An environmental
impact assessment may require that a specific guarantee
be given for adequate compensation should the case
arise.
Exemptions from Responsibility and
Civil Liability
Article 21
Exemptions from international responsibility
are governed by the principles and rules of international
law. Environmental regimes may provide for exemptions
from responsibility for harm alone or civil liability,
as the case may be, to the extent compatible with
their objectives. The mere unforeseeable character
of an impact should not be accepted in itself as an
exception.
Article 22
Without prejudice to the rules of international
law governing armed conflicts, such an event as well
as terrorism and natural disaster of an irresistible
character and other similar situations normally provided
for under civil liability conventions may be considered
as acceptable exemptions in environmental regimes,
subject to the principle that no one can benefit from
his or her own wrongful act.
Intentional or grossly negligent acts
or omissions of a third party shall also normally
be an acceptable exemption, but the third party should
in such case be fully liable for the damage. Damage
resulting from humanitarian activities may be exempted
from liability if the circumstances so warrant.
Compensation and Reparation of Damage
Article 23
Environmental regimes should provide
for the reparation of damage to the environment as
such separately from or in addition to the reparation
of damage relating to death, personal injury or loss
of property or economic value. The specific type of
damage envisaged shall depend on the purpose and nature
of the regime.
Article 24
Environmental regimes should provide
for a broad concept of reparation, including cessation
of the activity concerned, restitution, compensation
and if necessary, satisfaction.
Compensation under such regimes should
include amounts covering both economic loss and the
costs of environmental reinstatement and rehabilitation.
In this context, equitable assessment and other criteria
developed under international conventions and by the
decisions of tribunals should also be considered.
Article 25
The fact that environmental damage is
irreparable or unquantifiable shall not result in
exemption from compensation. An entity which causes
environmental damage of an irreparable nature must
not end up in a possibly more favorable condition
than other entities causing damage that allows for
quantification.
Where damage is irreparable for physical,
technical or economic reasons, additional criteria
should be made available for the assessment of damage.
Impairment of use, aesthetic and other non-use values,
domestic or international guidelines, intergenerational
equity, and generally equitable assessment should
be considered as alternative criteria for establishing
a measure of compensation.
Full reparation of environmental damage
should not result in the assessment of excessive,
exemplary or punitive damages.
Access to Dispute Prevention and
Remedies
Article 26
Access by States, international organizations
and individuals to mechanisms facilitating compliance
with environmental regimes, with particular reference
to consultations, negotiations and other dispute prevention
arrangements, should be provided for under such regimes.
In the event of preventive mechanisms
being unsuccessful, expeditious access to remedies,
as well as submission of claims relating to environmental
damage, should also be provided for.
Remedies Available to Interested
Entities and Persons for
Domestic and Transnational Claims
Article 30
Environmental regimes should provide
for equal access on a non-discriminatory basis to
domestic courts and remedies by national and foreign
entities and by all other interested persons.
Article 31
Environmental regimes should provide
for the waiver of State immunity from legal process
in appropriate claims. Arbitral awards and other decisions
rendered by international tribunals under such regimes
should have the same force as national decisions at
the domestic level.
Article 32
In cases having multinational aspects,
environmental regimes should take into consideration
existing rules on jurisdiction and choice of law and,
if necessary, provide for such rules.
Strasbourg, September 4, 1997.
