Compliance and Enforcement

1. Compliance and Enforcement • Interstate claims based on state responsibility • End up in court • Complex, technical, multilateral • Proof difficult • About reparation after damage • States reluctant to accept BUT IMP TO UNDERSTAND • Env regimes are preventive • How to enforce preventive obligations? • Institutional monitoring, supervision • Community pressure • Apply principles of equity, need flexibility in solutions • Negotiate, mediate, alternative dispute resolution

2. State responsibility • Responsibility upon breach of INT law • treaty • Customary • General principles • Resp only of the state

3. Codification of customary laws of State Responsibility- ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001 Part I (art 1-27)-elements needed for wrongful act Part II (art 28-41)- consequences of responsibility Part III (art 42-59)- implementation, countermeasures • no criminal liability • no separation between contractual (treaty) and tortuous (fault, negligence, intent) liability

4. State Responsibility Art 1: Every internationally wrongful act of a state entails the international responsibility of the state. Wrongful = unlawful under int law, not national (art 3) Act= act or omission State: all states

5. State Responsibility Art 2: (a) An internationally wrongful act consists of acts or omissions attributable to the state And (b) Constitute a beach of an international obligation Attributable (art 4 – 11) -Not private actions - Corfu Channel case (UK/Albania 1949) - Youmans Claim (Mex/US 1929) - Yeager v Iran 1987 - Short v Iran 1987 - Nic v US 1986

6. State Responsibility Once attributable, is state responsibility strict/objective or fault-based/subjective? Subjective: • Home Missionary Society Claim ( ) • Corfu Channel case (UK/Albania) 1949 (dissent) Objective: • Youmans Claim 1929 (Mex/US) • Caire claim 1929 (Fr/Mex)

7. State Responsibility From where does an international obligation arise? -breach of treaty -violation of customary law -violation of general principles of law -violations of ius cogens rules Damage not necessary art 2(b)

8. State Responsibility Defences – preclude wrongfulness (art 20-27) • Consent • Self defence • Legitimate countermeasures (Gabcikovo) • Force majeuer (Rainbow Warrior) • Distress (Rainbow Warrior) • Necessity (Torrey Canyon, Rainbow Warrior, Gabcikovo) • Compliance with peremptory norms (Gabcikovo)

9. State Responsibility Legal Consequences (mainly art 30, 31) • cease act (art 31) • Reparation (Chorzow factory case 1928 Ger/Po, art 31) to obtain as close as possible the condition it was before How? (art 34-39) By restitution (Chorzow factory, Temple case 1962, art 35) Monetary compensation (art 36, Rainbow Warrior) Satisfaction (art 37, Rainbow Warrior)

10. State responsibility • Procedural requirements (art 42-48) • Notice of claim • Exhaustion of local remedies • Admissibility • Conditions on using countermeasures (art 49-53) • Not to force compliance, temporary • Must still conform to other fundamental norms • Must be proportional to injury suffered • Give notice, negotiate • Not if act has ceased, dispute resolution pending

11. State Responsibility Problems of applying state responsibility rules to transboundary environmental harm • Private actor • Activity itself is lawful under normal conditions • Procedural problems (local remedies rule) • Proof of damage • Legal consequences: -Cessation of activity may be unacceptable (Mines de Potasse case) -restitution may not be possible -compensation for what type of damage, if purely env, common heritage/common concern - no compensation

12. State Responsibility 3 cases of state responsibility 1. Trail Smelter: Breach of customary law- wrongful act-state responsibility Private actor-attributability Legal consequences?

13. State Responsibility 2. Environmental liability for acts by Iraq during invasion of Kuwait 1991 • unlawful invasion state responsibility under UNSC Resolution 687 • Transboundary air/water pollution caused by oil well fires, harm to humans through environmental damage and direct health effects • destruction of natural resources Legal consequences -cessation? -reparation-restitution?, monetary compensation?, satisfaction?

14. State Responsibility 3. Cosmos claim 1978 (Can/USSR) • Breach of Convention on International Liability for Damage by Space Objects Treaty 1972 strict state liability incl for environmental damage

15. State Responsibility • Breach of due diligence standard actionable (eg Chernobyl) under treaty law or possibly under customary law State responsibility BUT if no breach of due diligence and still harm?....

16. State Responsibility ILC Draft Articles on State Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law Now called: Prevention of transboundary harm from hazardous activities 2001 all prevention obligations + procedural -cooperate -monitor, use int org -authorize based on tb harm assessment • Notify of risk, consult, use equitable balancing (art 10) • Exchange info, public access wo discrimination

17. State liability • Dispute settlement incl fact finding -no mention of state responsibility -private international law solutions? -private/public international law solutions?

18. (State Responsibility) International civil liability regimes: • regional, European for general env damage – not in force • Regional, European freshwater regime for industrial accidents – not in force • Global, maritime oil pollution – in force • Global, nuclear incidents – in force • regional, hazardous goods/waste transport – not in force

19. (State Responsibility)International civil liability regimes Who pays in regimes in force? (i) The polluter: only in maritime oil is the polluter pays principle completely accepted Oil: -ship owner -oil processing industry -tanker manufacturer (to come) Nuclear: -operator -the harming state owning nuclear installation -fund by all nuclear states Who pays in those not yet in force? Polluter (transporter, operator)

20. (State Responsibility)international civil liability regimes International civil liability regimes -liability is limited in amount -time clause -initially only damage to persons, property -newer regimes also env damage but not in force

21. (State Responsibility)international civil liability regimes International civil liability regimes not yet -for transboundary damage from water, air pollution -generally no protection for common heritage/common concern areas +polluter pays principle is limited, clashes between environmental protection and economic development

22. Compliance and enforcement in int env law • Rare through state resp • Some civil liability schemes • Mostly through institutional enforcement of preventive measures • Generally through regime, sometimes through int org (IMO, IAEA…) wider if ngo/civil participation, generally not international management • Data gathering, assessing reports • Fact finding, monitoring • Negotiated solutions, allocation of resources, flexible • Assisting – financial/technical • Market mechanisms • Emissions trading • Trade control