Part VIII Compliance, Implementation, and Effectiveness, Ch.58 International Environmental Responsibility and Liability

This chapter analyses the relationship between international environmental law and state responsibility, considering primary obligations, environmental harm, and the standard of care/due diligence. Accountability for internationally illegal acts, such as breach of a treaty or the violation of customary law rules, is relatively well developed in general international law under the concept of state responsibility, though not in a codified, treaty-based manner and some uncertainties exist. In general, ‘state responsibility’ refers to the accountability of a state for a violation of international law and is premised upon an internationally wrongful act which can be attributed to a state. The consequences of international responsibility for a wrongful act are the obligation of the wrongdoer to cease that act, to offer assurances of non-repetition, and to make full reparation of the injury caused by the internationally wrongful act, including compensation for environmental damage. On the other hand, rules for strict liability for environmental harm resulting from lawful activities are not so well established, and remain singular and exceptional.

Die Staatenhaftung im Völkerrecht

10.5771/9783748912286 ◽

2021 ◽

Author(s):

Sahar Moradi Karkaj

Keyword(s):

International Law ◽

Virtual World ◽

Environmental Law ◽

State Responsibility ◽

Investment Protection ◽

Conflict Situations ◽

Information Operations ◽

State Obligations ◽

State Liability ◽

The necessity for state obligations to compensate transboundary harm becomes particularly evident in the virtual world. International law is predestined to address this issue but faces challenges due to the private character of information operations. Against this background, the author analyses the relationship between the established institute of state responsibility for internationally wrongful acts and the concept of state liability for non-prohibited dangerous activities. The contours of state liability are primarily derived from environmental law, WTO law, and investment protection. It is shown that state liability offers solutions to novel conflict situations. The findings can potentially be applied in various liability regimes.

Transboundary Environmental Disputes along the Canada-US Frontier: Revisiting the Efficacy of Applying the Rules of State Responsibility

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800008791 ◽

2006 ◽

Vol 43 ◽

pp. 333-391

Author(s):

Kevin R. Gray

Keyword(s):

Environmental Law ◽

The United States ◽

Environmental Harm ◽

State Responsibility ◽

Environmental Damage ◽

International Treaties ◽

Environmental Disputes ◽

Vested Interests ◽

The Status ◽

No Harm Principle

SummaryThe efficacy of the rules of state responsibility for transboundary environmental harm can be questioned in light of recent disputes between Canada and the United States. Stemming from the “no-harm” principle, the obligation to prevent transboundary damage represents an integral part of international environmental law. It is reflected in a wide body of international treaties, mirroring state practice. It also forms the basis for international cooperation on transboundary and global environmental issues. This article examines how the rules of state responsibility regarding transboundary environmental damage are applied by two states that share a long contiguous border and a legacy of amicable relations. Upon examination, the limits of such rules are increasingly becoming evident in light of some recent disputes. Attempts to overlook the rules of state responsibility, paralleled with the exercise of extraterritorial jurisdiction, have undermined the status of the rules of state responsibility. Moreover, these phenomena highlight the difficulty of applying loosely defined international legal principles to practical situations where vested interests beyond those of the states involved are at play.

If you Break it, do you own it?

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-00602002 ◽

2015 ◽

Vol 6 (2) ◽

pp. 201-246 ◽

Cited By ~ 1

Author(s):

Dinah Shelton ◽

Isabelle Cutting

Keyword(s):

International Law ◽

Armed Conflict ◽

Environmental Law ◽

Environmental Harm ◽

State Responsibility ◽

Human Rights Law ◽

Legal Obligations ◽

Law Of Armed Conflict ◽

The Law

This article examines the extent to which international legal obligations aimed at protecting the environment apply to military activities in peacetime and during armed conflict. The discussion draws on international environmental law, human rights law, the law of armed conflict, and the law of State responsibility in evaluating the extent to which States have a duty to prevent or mitigate environmental harm and remediate or compensate for any such damage caused by their military activities. The article also examines international law on liability for the injurious consequences of lawful activities, to assess whether this equitable doctrine supports shifting the clean-up costs of environmental harm to the acting State even when there is no breach of international law. The article concludes that international law requires measures be taken to prevent environmental harm and could support a claim for remediation or compensation where norms of international law have been breached. It also suggests the need to develop specific rules in peace treaties and status of forces or bases agreements, to address the consequences of environmental harm resulting from military activities.

Law-making at the intersection of international environmental, humanitarian and criminal law: the issue of damage to the environment in international armed conflict

International Review of the Red Cross ◽

10.1017/s1816383110000536 ◽

2010 ◽

Vol 92 (879) ◽

pp. 593-646 ◽

Cited By ~ 6

Author(s):

Julian Wyatt

Keyword(s):

International Law ◽

Criminal Law ◽

Armed Conflict ◽

Environmental Law ◽

International Criminal Law ◽

International Humanitarian Law ◽

Environmental Damage ◽

Humanitarian Law ◽

AbstractThe relationship between international environmental law and international humanitarian law, like relationships between many other subsystems of contemporary international law, has not yet been articulated. The problem of environmental damage in international armed conflict lies at the intersection of these two branches and thus provides an ideal opportunity to investigate this relationship. Rather than simply evaluating the applicable international law rules in their context, we break them into elements that we separately assess from both (international) environmental law and international humanitarian/international criminal law perspectives. By doing so, we identify how international law rules for cross-sectoral problems may appropriately combine the existing expertise and institutional strengths of simultaneously applicable branches of international law, and also discover how an evaluation of the ultimate appropriateness of the cross-sectoral rules adopted may be substantially affected by the different frames of reference that are used by those working within the different fields.

Locating Nature: Making and Unmaking International Law

Leiden Journal of International Law ◽

10.1017/s0922156514000211 ◽

2014 ◽

Vol 27 (3) ◽

pp. 573-593 ◽

Cited By ~ 8

Author(s):

USHA NATARAJAN ◽

KISHAN KHODAY

Keyword(s):

Human Rights ◽

International Law ◽

Environmental Degradation ◽

Environmental Law ◽

Environmental Issues ◽

Environmental Harm ◽

Wealth Generation ◽

AbstractThis article explores the relationship between international law and the natural environment. We contend that international environmental law and general international law are structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature that is incapable of responding adequately to ecological crises. We maintain that environmental issues should not be confined to a disciplinary specialization because humanity's relationship with nature has been central to making international law. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental degradation is treated as an economic externality to be managed by special regimes. Through tracing the co-evolution of these assumptions about nature alongside seminal disciplinary concepts, it becomes evident that such understandings are central to shaping international law and that the discipline helps universalize and normalize them. By comprehending more broadly the relationship between nature and international law, it is possible to see beyond law's potential to correct environmental harm and identify the disciplinary role in driving ecological degradation. Venturing beyond the purview of international environmental lawyers, this article considers the role of all international lawyers in augmenting and mitigating ecological crises. It concludes that disciplinary solutions to environmental problems require radical departures from existing disciplinary tenets, necessitating new formulations that encapsulate rich and diverse understandings of nature.

Formation of Customary International Law and General Principles

The Oxford Handbook of International Environmental Law ◽

10.1093/oxfordhb/9780199552153.013.0019 ◽

2008 ◽

Cited By ~ 3

Author(s):

Pierre-Marie Dupuy

Keyword(s):

International Law ◽

Environmental Law ◽

Customary Law ◽

Soft Law ◽

International Protection ◽

Technical Problems ◽

Normative Concepts ◽

The One ◽

The Relationship ◽

Law Making

The customary law status of a rule depends on whether the principle has been referred to, or put into operation, in a treaty, in a soft law instrument, in judicial or semi-judicial decisions, or in other expressions of state practice. This article starts with some preliminary observations on customary law-making in international environmental law, and then assesses the ‘banality’ of the customary law-making process in the field of the international protection of the environment – that is, the fact that this process is analogous to the one in general international law. It also reviews a series of theoretical and technical problems in proving the existence of customary environmental law, namely, the relationship between treaties and custom; the relationship between ‘soft law’ and custom; and the relationship between general principles, normative concepts, and custom. The article concludes by considering the problematic nature of the constantly ongoing law-making process in the absence of a legislator for environmental protection.

International Responsibility and Liability

The Oxford Handbook of International Environmental Law ◽

10.1093/oxfordhb/9780199552153.013.0044 ◽

2008 ◽

Cited By ~ 1

Author(s):

Malgosia Fitzmaurice

Keyword(s):

High Risk ◽

Environmental Law ◽

General System ◽

Environmental Harm ◽

State Responsibility ◽

Environmental Damage ◽

Multilateral Environmental Agreements ◽

Legal Regimes ◽

Private Actors ◽

International Law Commission

After more than fifty years of work, the International Law Commission codified the general (customary) regime for state responsibility in the Articles on Responsibility of States for Internationally Wrongful Acts, which were adopted in 2001. The law of state responsibility is based on the distinction between two types of rules: ‘primary rules’ and ‘secondary rules’. State responsibility for environmental damage has played a relatively limited role in environmental law, due in part to the fact that it does not cover the liability of private actors, who are those largely responsible for pollution. This article examines the consequences of the causation of transboundary environmental harm within several international legal regimes: state responsibility for breach of general environmental obligations; international civil liability regimes for harmful consequences of high-risk activities; liability regimes in multilateral environmental agreements; and the emerging general system of liability for harmful consequences of lawful activities involving high risk. It assesses the strengths and weaknesses of these international legal regimes, their usefulness as tools of environmental protection, and their effectiveness as systems of compensation.

Reparation for Environmental Damage in Jus Post Bellum

10.1093/oso/9780198784630.003.0012 ◽

2017 ◽

Author(s):

Ilias Plakokefalos

Keyword(s):

Armed Conflict ◽

Environmental Law ◽

Shared Responsibility ◽

Armed Conflicts ◽

Environmental Harm ◽

Environmental Damage ◽

Jus Post Bellum ◽

Typical Situation ◽

Sharing Responsibility

This chapter explores the problems that environmental damage in armed conflict pose to the determination of shared responsibility, and especially the determination of reparations, in the context of the jus post bellum. When two actors are engaged in armed conflict, there arise no serious issues as to sharing responsibility for violations. But the fact that modern armed conflicts often involve more than two actors (e.g. Libya 2011) complicates the matters arising out of environmental harm, as there may be two or more actors contributing to the same harmful event. This is a typical situation of shared responsibility. Shared responsibility provides that the problem of reparations for environmental harm is to be examined in situations where there is a multiplicity of actors that contribute to a single harmful outcome. This definition covers the breach of obligations under jus ad bellum and jus in bello, as well as under international environmental law.

International law protecting the environment during armed conflict: gaps and opportunities

International Review of the Red Cross ◽

10.1017/s1816383110000597 ◽

2010 ◽

Vol 92 (879) ◽

pp. 569-592 ◽

Cited By ~ 11

Author(s):

Michael Bothe ◽

Carl Bruch ◽

Jordan Diamond ◽

David Jensen

Keyword(s):

International Law ◽

Armed Conflict ◽

Environmental Law ◽

International Humanitarian Law ◽

Environmental Damage ◽

Humanitarian Law ◽

Basic Principles ◽

Principle Of Proportionality ◽

Definition Of

AbstractThere are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

Part III Conceptual Pillars, Ch.16 Harm Prevention

10.1093/law/9780198849155.003.0016 ◽

2021 ◽

Author(s):

Brunnée Jutta

Keyword(s):

Environmental Law ◽

Environmental Harm ◽

Due Diligence ◽

Significant Harm ◽

Actual Harm ◽

The Face ◽

Harm Prevention ◽

This chapter addresses how international environmental law originates from and revolves around the harm prevention rule. It focuses on three points of contention, each related to the role of due diligence in harm prevention, and each highlighted by recent judicial engagements with the harm prevention rule. First, it is generally accepted that a state's obligation to prevent environmental harm is not absolute, but requires due diligence in the face of risk of significant harm. However, it is unclear whether a failure to act diligently to avert harm on its own—absent actual harm—can amount to a breach of the harm prevention rule. Second, the relationship between the procedural and substantive dimensions of the harm prevention rule remains ambiguous. Third, there is some uncertainty as to where the line runs between the harm prevention obligation and the precautionary principle, given the focus of both notions on risk. These inter-related conceptual questions affect the harm prevention rule's function as a reference point for international environmental law.