Liability for environmental damage
General principles of international law imposing liability on actors for their illegal acts, or for the adverse consequences of their lawful activities, are relatively well developed at a general level, and are now reflected in the Articles on State Responsibility adopted by the ILC in 2001.1 In relation to environmental damage, however, the liability rules are still evolving and in need of further development. Environmental damage refers here to damage to the environment, which has been defined in treaties and other international acts to include four possible elements: (1) fauna, flora, soil, water and climatic factors; (2) material assets (including archaeological and cultural heritage); (3) the landscape and environmental amenity; and (4) the interrelationship between the above factors.2 Most legal definitions of environment do not, therefore, include people and their property.
Liability rules at the domestic or international level serve a variety of purposes. They may be a form of economic instrument which provides an incentive to encourage compliance with environmental obligations.3 They may also be used to impose sanctions for wrongful conduct, or to require corrective measures to restore a given environmental asset to its pre-damage condition. Finally, they may provide a technique for internalising environmental and other social costs into production processes and other activities in implementation of the polluter-pays principle.4
This chapter follows the distinction which has been drawn in practice between the liability of states and other international persons under public international law, and the liability of actors (which could include states) under rules of national law adopted pursuant to treaties which aim to harmonise national civil liability rules, or set minimum standards. State liability refers here to the liability of international persons under the operation of rules of international
1 Report of the ILC, UN Doc. A/56/10 (2001).
2 Chapter 1, pp. 15–18 above.
3 See in this regard C. Murgatroyd, ‘The World Bank: A Case for Lender Liability’, 1 RECIEL 436 (1992).
4 Chapter 6, pp. 279–85 above.