This panel was convened at 3:00 p.m., Friday, March 25, by its moderator, Marie Soveroski, ASIL International Environmental Law Interest Group Chair, who introduced the panelists: Tullio Treves of the International Tribunal for the Law of the Sea; Alan Boyle of Edinburgh University; Peter Sand of the University of Munich; Monika Hinteregger of the University of Graz; and Gunther Handl of Tulane University School of Law.
INTRODUCTORY REMARKS BY ALAN BOYLE
This panel will address international law on liability for catastrophic environmental damage, with the Deepwater Horizon oil rig disaster in the Gulf of Mexico in mind. (1) Deepwater Horizon is largely a U.S. disaster rather than an international one--save for the cost of cleaning up the marine environment, which has largely been borne by BP. But if Deepwater Horizon had caused massive pollution in Mexico or various Caribbean Islands, it would show, as a case study, the limitations of current international law on liability, especially in respect of oil drilling at sea, currently unregulated by a treaty regime. (2)
International law on liability for catastrophic environmental damage is not fundamentally different from international law on liability for damage in general--we can consider the law of state responsibility for breach of obligation by states or the law of civil liability of private actors, in particular the regimes established by civil liability treaties. Catastrophic damage--damage on a scale large enough to result in very substantial claims--is legally problematic because of the likelihood that (a) the relevant operator cannot fund the loss; and (b) mass compensation claims may result.
The key issues are: Who should be liable for the damage? And what process is best suited to deal with claims resulting from transboundary harm?
RESPONSIBILITY OF STATES FOR ENVIRONMENTAL DAMAGE
State responsibility will cover claims for loss or damage resulting from a breach of obligation in international law, including pollution damage and damage to the environment. (3) There are very few instances of such international claims; they include the Trail Smelter Arbitration (4) and UN Security Council Resolution 687 holding Iraq responsible for damage caused by the invasion of Kuwait.
The key obligation is codified in Principle 2 of the 1992 Rio Declaration on Environment and Development, which refers to the state's "responsibility 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." The two leading authorities are the 2010 ICJ Pulp Mills case (5) and the 2011 ITLOS Advisory Opinion on Activities in the Seabed Area. (6)
The Pulp Mills judgment cites the Corfu Channel case (7) and the Nuclear Weapons advisory opinion, (8) and reaffirms that "A State is thus obliged to use all of the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another state" (para. 101). It reflects the draft articles of the ILC on prevention of transboundary harm. (9) The ICJ confirms that the obligation is one of due diligence: an obligation of conduct rather than result. It specifically rejects Argentina's argument to the contrary (para. 187). This is not surprising: it fully accords with the precedents and the leading textbook writers. (10)
The same view is taken by ITLOS in its Advisory Opinion on Seabed Activities: "The sponsoring State's obligation 'to ensure' is not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with the aforementioned obligations. Rather, it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result." (para. 110). ITLOS cites with approval the ICJ Pulp Mills judgment (para. …