Abstract
This chapter deals with the complex question of reparations for environmental damage. Section 17.2 is devoted to the brief presentation of responsibility for environmental damage and the content of the primary obligation to protect the environment. It is limited to State responsibility within the remit of public international law thus, and only refers briefly to civil liability regimes with particular focus on those which are connected to or derived from Multilateral Environmental Agreements. The question is considered whether a classical legal regime of reparations, as set out in the Chorzow Factory case, is suitable for environmental damage as it may be suggested that international environmental law has set new frontiers and challenges to classical rules of State responsibility. In the context of reparations for environmental damage, the work of the International Law Commission is analysed, as well as the case law of the international courts and tribunals, such as the International Court of Justice and the International Tribunal for the Law of the Sea. It is suggested that the existing classical framework of State responsibility and reparations for environmental harm is not entirely equipped to deal with the particularities of the environment.
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Notes
- 1.
- 2.
‘Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’, Factory at Chorzow (Germany v Poland), Merits, 1928 PCIJ (ser. A) No. 17, 47 (Sept. 13).
- 3.
Boyle 2002.
- 4.
ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgement, 25 September 1997, ICJ Reports 1997, para 140.
- 5.
ITLOS, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports p. 10, para 197.
- 6.
Following the criticism of the project, the ILC decided to divide the liability topic into two parts: one on prevention of harm arising out of transboundary activities and another on liability. The first part of the project resulted in the 2001 Articles on Prevention of Transboundary Harm from Hazardous Activities and the second part resulted in 2006 Principles of Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, see the text adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly (A/56/10).
- 7.
ILC Report, A/49/10, 1994, chap. III(B), para 219, ILC Yearbook, 1994, vol. II(2).
- 8.
McCaffrey 2019, p. 496.
- 9.
- 10.
Plakokefalos 2015, p. 481.
- 11.
Plakokefalos 2015, p. 482. He gives the following example: ‘… this is the case in the deep seabed, where the provisions on the obligations of the states sponsoring an exploration or exploitation activity in the area, carried out by a contractor, are obligations of conduct. Nonetheless, LOSC demands that in order for these obligations to be breached not only must the sponsoring state fail to abide by them but also that this failure must be causally connected to damage occurring in the deep seabed.’
- 12.
Plakokefalos 2015, p. 482.
- 13.
Canada Claim against the Union of Soviet Republics for Damage Caused by Soviet Cosmos 954 18 (4) (1979) ILM.
- 14.
Article 1, above n 6.
- 15.
Article 3, above n 6.
- 16.
Text adopted by the International Law Commission at its fifty-eighth session, in 2006, and submitted to the General Assembly session (A/61/10). 899.
- 17.
Ibid., Principle 1.
- 18.
Ibid., Principle 2.
- 19.
Ibid.
- 20.
Ibid., Principle 4(1).
- 21.
Ibid., Principle 4.
- 22.
Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, with commentaries, Yearbook of the International Law Commission, 2006, Vol. II, Part Two, available at https://legal.un.org/ilc/texts/instruments/english/commentaries/9_10_2006.pdf, p. 59.
- 23.
- 24.
Duvic-Paoli 2018, p. 321.
- 25.
Ibid., p. 321.
- 26.
Ibid., p. 322.
- 27.
Barcelona Traction, above n 23, para 3. 3.
- 28.
Duvic-Paoli 2018, p. 323.
- 29.
ICJ, Questions Concerning the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 20 July 2012, ICJ Reports 2012, p. 422.
- 30.
ICJ, Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, 31 March 2014, ICJ Reports 2014, p. 226.
- 31.
ITLOS, Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10.
- 32.
Fitzmaurice 2013, p. 377: ‘[b]ecause of the general and longstanding public interest in the protection of marine mammals, this case is likely to define the public perception of the Court as a protector of environmental concerns’.
- 33.
Crawford 2013, p. 373.
- 34.
‘Australia does not claim to be an injured State because of the fact that some of the JARPA II take is from waters over which Australia claims sovereign rights and jurisdiction. … Every party has the same interest in ensuring compliance by every other party with its obligations under the 1946 Convention. Australia is seeking to uphold its collective interest, an interest it shares with all other parties’.
- 35.
On the one hand we have ICJ, South West Africa (Ethiopia and Liberia v South Africa), Judgment, 18 July 1966, ICJ Reports 1966, p. 6. (rejection of standing to enforce interests of the international community) and East Timor (Portugal v Australia), Judgment, 30 June 1995, ICJ Reports 1995, p. 90. (jurisdictional limitations which prohibit public interest litigation), and on the other, Barcelona Traction, above n 23, (the erga omnes doctrine first mentioned) and the Questions relating to the Obligation to Prosecute or Extradite, above n 29, p. 422 in which the ICJ has recognised the standing of all treaty parties to enforce obligations erga omnes partes, see Tams 2016. Mention must be made of The Gambia v Myanmar case. On 11 November 2019, The Gambia filed an application at the International Court of Justice against Myanmar, alleging violation of obligations under the Genocide Convention. The Gambia contended that, since the obligations under the Genocide Convention are obligations erga omnes partes, any State party to the Genocide Convention is entitled to invoke the responsibility of another State party for the breach of its obligations, without having to prove a special interest. The Gambia argued during the provisional measures phase ‘that the fact of being party to a treaty imposing obligations erga omnes partes suffices to establish its legal interest and legal standing before the Court.’ See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Provisional Measures, Order, 23 January 2020, para 40. The Court agreed with The Gambia and considered that ‘all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented […][and concluded that] not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end’.
- 36.
Tams 2016.
- 37.
See also Giorgio Gaja 2011, pp. 171–80 who also expressed the view that the protection of natural resources can be within the realm of interests of the international community and the community interest can be also expressed through the imposition of certain restrictions on their exploitation. There is no doubt that the common heritage of mankind belongs to the category of concepts which engage general interest and that Article 48 of Articles on States Responsibility is to be relied on in case of breaches of obligations involving community interests. Shotaro Hamomoto also was of the view that multilateral environmental treaties are a source of collective interests therefore, arguing that Japan (even before the Judgment in the Belgium v Senegal case) would have been in a difficult position to claim inadmissibility of the claim by Australia on the basis of the lack of legal interest. According to Professor Hamamoto, the non-admissibility plea on the part of Japan, after Belgium v Senegal, the case against Australia, would be ‘virtually hopeless’, see Hamamoto 2014, p. 6.
- 38.
Urs Priya (2014) Are States Injured by Whaling in the Antarctic?, available at http://opiniojuris.org/2014/08/14/guest-post-states-injured-whaling-antarctic/, last accessed 8 October 2019.
- 39.
Ibid.
- 40.
Sakai 2016, pp. 10–11.
- 41.
‘The Area’ is covered by Part 11 of the 1982 UNCLOS. The Area is covered by the concept of the Common Heritage of Humankind. It comprises the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (Article 136 of the UNCLOS).
- 42.
See para 180 of the Advisory Opinion.
- 43.
Murase 2015.
- 44.
Report of the International Law Commission Sixty-eighth session (2 May–10 June and 4 July–12 August 2016), 287.
- 45.
Duvic-Paoli 2018, p. 341.
- 46.
Ibid.
- 47.
Duvic-Paoli 2018, p. 340.
- 48.
Ibid.
- 49.
Ibid.
- 50.
Ibid., pp. 342–43.
- 51.
Ahmadov 2018, p. 169.
- 52.
Duvic-Paoli 2018, pp. 333–36; Plakokefalos 2012, pp. 32–36; Takano 2018, pp. 3–5. The ICJ indicated clearly that this an obligation of conduct, see Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)), Provisional Measures, 8 April 1993, ICJ Reports 1993. See Vinuales 2020.
- 53.
ILA 2016, p. 37.
- 54.
In general international law, see Draft Articles on State Responsibility with Commentaries adopted by the ILC on the first reading (1997) UN Doc.AS/CN.4528/Add.2.
- 55.
Koivurova 2010.
- 56.
- 57.
- 58.
Duvic-Paoli 2018, p. 336.
- 59.
Plakokefalos 2012.
- 60.
Ibid.
- 61.
Kosalapova 2013, p. 64.
- 62.
The precautionary principle (Principle 15 of the Rio Declaration) is slowly gaining wider recognition in international environmental law as a norm of customary international law, a view supported by the 2011 Advisory Opinion of the Seabed Chamber of the ITLOS. This principle is also included in many environmental treaties. The reluctance to accord the precautionary principle a more defined status is linked, according to Sands and Peel, to ‘doubts and differences as to what practical consequences of the precautionary principle or approach will be in particular field or in a specific case’. See Sands and Peel 2018, p. 240.
- 63.
ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 131.
- 64.
Takano 2018, p. 3.
- 65.
ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, 20 April 2010, ICJ Reports 2010, para 101; ICJ, Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment, 16 December 2015, ICJ Reports 2015, p. 665.
- 66.
McIntyre 2011, pp. 493–94.
- 67.
Duvic-Paoli 2018, p. 335.
- 68.
Duvic-Paoli 2018, 337.
- 69.
Ibid., p. 136.
- 70.
Ibid., p. 336.
- 71.
- 72.
Duvic-Paoli 2018, p. 336.
- 73.
As it is recalled, in both of the cases before the ICJ it was decided in the negative. See supra note 65.
- 74.
Duvic-Paoli 2018, p. 337.
- 75.
Ibid., p. 338.
- 76.
Brunnée 2016.
- 77.
2001 ILC’s Articles on the Responsibility of States for International Wrongful Acts (Article 30).
- 78.
Ibid., Article 31.
- 79.
PCIJ, The Factory At Chorzow (Claim for Indemnity) (The Merits), Judgment, 13 September 1928, PCIJ Ser A No 17, p. 29.
- 80.
Crawford 2002, p. 295.
- 81.
The forms of reparation envisaged by the law of State responsibility are the following: restitution, compensation and satisfaction, ‘either singly or in combination’ (Article 34).
- 82.
Compensation will cover any financially assessable damage, including loss of profits, insofar as it is established. Satisfaction is the form of reparation that is employed when restitution or compensation cannot be used. It may take the form of an acknowledgment of the breach, or expression of regret, or a formal apology (Article 37).
- 83.
Article 37, 2001 ILC’s Articles on the Responsibility of States for International Wrongful Acts.
- 84.
See on this: Plakokefalos 2015, pp. 474–475.
- 85.
Plakokefalos 2015, p. 473. The subject –matter of causation has not attracted much attention in international law.
- 86.
‘State Responsibility, General Commentary’ (ARSIWA Commentary), 2(2) ILC Yearbook (2001) 31, p. 81.
- 87.
Crawford 2002, p. 295.
- 88.
Plakokefalos 2015, p. 481.
- 89.
Tumonis 2012, p. 95.
- 90.
Ibid., p. 96.
- 91.
See e.g. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgement, 26 February 2007, ICJ Reports 2007, para 462, where the Court applied the certain cause standard. See Tumonis 2012, p. 99, 100.
- 92.
Plakokefalos 2015, p. 481.
- 93.
Ibid., p. 481.
- 94.
Ibid., p. 482.
- 95.
Ibid. An example is given of the deep seabed, ‘where the provisions on the obligations of the states sponsoring an exploration or exploitation activity in the area, carried out by a contractor, are obligations of conduct. Nonetheless, LOSC demands that in order for these obligations to be breached not only must the sponsoring state fail to abide by them but also that this failure must be causally connected to damage occurring in the deep seabed’, p. 482.
- 96.
Crawford 2002, p. 213.
- 97.
UNCC, Governing Council Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Instalment of ‘F4’ Claims (30 June 2005) UN Doc. S/AC 26 /2005 /10 para 57.
- 98.
Crawford 2002, p. 123.
- 99.
Boyle 2007, p. 24.
- 100.
Crawford 2002, p. 118.
- 101.
Boyle 2002, pp. 25–6. The ICJ observed that the size of the area affected by Nicaragua’s unlawful activities was 6.19 ha, ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Compensation, 2 February 2018, ICJ Reports 2018, para 54.
- 102.
- 103.
Rudall 2018, p. 288.
- 104.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), above n 101, para 32.
- 105.
Ibid., para 34.
- 106.
Ibid., para 42. See also ICJ, Ahmadou Sadio Diallo (Guinea v Democratic Republic of Congo) Compensation, 19 June 2012, ICJ Reports 2012, p. 324.
- 107.
Rudall 2018, p. 288.
- 108.
Ibid.
- 109.
Ibid., p. 289.
- 110.
Ibid.
- 111.
Ibid., paras 80–81.
- 112.
Trail Smelter Arbitration, Award, 11 March 1941, 3 RIAA 1905.
- 113.
US Supreme Court, Story Parchment Co. v Paterson Parchment Paper Co., Judgement, 24 February 1931, 22 US 555.
- 114.
Rudall 2018, p. 291.
- 115.
Ibid.
- 116.
Cittadino 2019, p. 37.
- 117.
Ibid., p. 38.
- 118.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Compensation, above n 101, para 79.
- 119.
Cittadino 2019, p. 40.
- 120.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Compensation, above n 101, para 80.
- 121.
Cittadino 2019, p. 40.
- 122.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Compensation, above n 101, para 81.
- 123.
- 124.
Kindji and Faure 2019, p. 24.
- 125.
ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Compensation, above n 101, Separate Opinion of Judge ad hoc Dugard, para 47.
- 126.
Burlington Resources Inc. v Republic of Ecuador, Decision on Counterclaims, 7 February 2017, ICSID Case No. ARB/08/5; Da Silva 2018; Parlett and Ewad identify five ways upon which an investment tribunal might find that it has jurisdiction over a counterclaim by a State against an investor. First, the relevant treaty might explicitly provide for States to bring counterclaims. However, these are rare, and most treaties do not address the matter; Second, an investment tribunal might consider that it has jurisdiction over counterclaims even in the absence of a specific treaty provision. Other international courts and tribunals have recognised the possibility of counterclaims. The International Court of Justice, the International Tribunal for the Law of the Sea and the Iran-US Claims Tribunal have all adopted procedural rules to adjudicate counterclaims, even though they are not explicitly provided for in their constituent instruments. That might provide a basis for investment tribunals to conclude that their jurisdiction extends to counterclaims even in the absence of an express grant of jurisdiction in the underlying investment treaty. A third possibility is that the agreed arbitration rules permit counterclaims, and the parties’ consent to those rules constitutes consent to a tribunal’s jurisdiction over counterclaims. An example is Article 47 of the ICSID Convention might consider that it has jurisdiction over counterclaims even in the absence of a specific treaty provision; fourth possibility is that the parties themselves consent to the tribunal taking jurisdiction over counterclaims. A fifth possibility is that the dispute resolution clause in a BIT may permit claims to be brought by a State, see Parlett and Ewad 2017.
- 127.
- 128.
- 129.
Da Silva 2018, p. 1418.
- 130.
Ibid., p. 1420.
- 131.
Ibid., p. 1423.
- 132.
Ibid.
- 133.
Ibid., p. 1428. See also Parlett and Ewad 2017. The Tribunal made onsite visits and relied on expert testimony and evidence collected in each concerned area. It may be mentioned, however, that the Arbitral Tribunal had to appoint their own experts due to the lack of agreement between party-appointed ones.
- 134.
Burlington Resources Inc. v Republic of Ecuador, above n 126, para 122; see also Sundararajan 2018, pp. 22–23.
- 135.
Ibid., para 81 and 159.
- 136.
Ibid., para 275, 291.
- 137.
Sundararajan 2018, p. 25.
- 138.
Perenco v Ecuador LTD. v The Republic of Ecuador and Empressa Estatal Petroleos de Ecuador (Pertoecuador), above n 127, pp. 26–27.
- 139.
Ibid., paras 34–35.
- 140.
Ibid., para 87.
- 141.
Sundararajan 2018, p. 26.
- 142.
Ibid., pp. 26–27, Perenco v Ecuador LTD. v The Republic of Ecuador and Empressa Estatal Petroleos de Ecuador (Pertoecuador), above n 127, para 347.
- 143.
Sundararajan 2018, p. 27, Perenco v Ecuador LTD. v The Republic of Ecuador and Empressa Estatal Petroleos de Ecuador (Pertoecuador), above n 127, para 322.
- 144.
Perenco v Ecuador LTD. v The Republic of Ecuador and Empressa Estatal Petroleos de Ecuador (Pertoecuador), above n 127, para 37; Sundararajan 2018, p. 27.
- 145.
Sundararajan 2018, p. 27.
- 146.
Perenco v Ecuador LTD. v The Republic of Ecuador and Empressa Estatal Petroleos de Ecuador (Pertoecuador), above n 127.
- 147.
Da Silva 2018, p. 1429.
- 148.
Rudall 2020, p. 39.
- 149.
Ibid.
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Fitzmaurice, M. (2022). State Responsibility and Liability. In: Sobenes, E., Mead, S., Samson, B. (eds) The Environment Through the Lens of International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-507-2_17
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