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International environmental law as a special eld

M.A. Fitzmaurice

Netherlands Yearbook of International Law / Volume 25 / December 1994, pp 181 - 226

DOI: 10.1017/S0167676800000222, Published online: 07 July 2009

Link to this article: http://journals.cambridge.org/abstract_S0167676800000222

How to cite this article:

M.A. Fitzmaurice (1994). International environmental law as a special eld.
Netherlands Yearbook of International Law, 25, pp 181-226 doi:10.1017/
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 181
*
INTERNATIONAL ENVIRONMENTAL LAW AS A SPECIAL FIELD

M.A. Fitzmaurice

1. Introduction
1.1 What is special about the environment as a subject-matter?
1.1.1 General background
1.1.2 Particular aspect
1.2 Specific features of international environmental law covered in this article

2. Sources of international environmental law

2.1 The sources of international environmental law to date
2.2 Sources and the future development of international environmental law

3. Treaties in the field of environmental law

3.1 The growth in environmental treaty law since 1972
3.2 Developments in the processes of negotiation and structure of environmental
treaties
3.3 Developments in the content of environmental treaties
3.4 Treaty regimes as special sectoral legal systems
3.5 Civil liability treaty regimes
3.6 The Finnish-Swedish Frontier Rivers Commission as an example of a special
civil liability regime as contained in a treaty

4. 'Soft law'
4.1 What is meant by 'soft law'
4.2 The origins of 'soft law' in the economic field
4.3 'Soft law' in the environmental field
4.4 'Soft law' in the settlement of disputes

5. Responsibility for environmental damage as distinct from general State respon-

sibility - The ILC Liability Draft

* © M. Fitzmaurice, 1994.
** Senior Lecturer in International Law, University of Amsterdam; Visiting Lecturer in
Environmental Law, King's College, London.

Netherlands Yearbook of International Law

Volume XXV - 1994- pp. 181-226
182 M.A. Fitzmaurice

5.1 The nature and origin of the problem

5.2 Assessment of the ILC approach
5.2.1 Scope of the assessment
5.2.2 The conceptual basis of the Liability Draft
5.2.2.1 Terminology
5.2.2.2 The 'compound primary obligation'
5.2.3 Reasons for the ILC approach
5.2.4 Critical response to the distinction
5.3 Barboza's Draft
5.4 Conclusion

6. Duties of States in relation to the environment

6.1 Introductory
6.2 Duty not to cause harm
6.2.1 General concept
6.2.2 Standard of care
6.2.3 Knowledge
6.3 Duty to co-operate
6.3.1 In general
6.3.2 Duty to co-operate in the Liability Draft
6.4 Consequences of breach
6.4.1 The general rule in relation to State responsibility
6.4.2 Liability Draft — balance of interests
6.4.3 Countermeasures
6.5 Liability for environmental harm in conventional regimes
6.6 New developments in States' obligations with regard to environmental harm —
The precautionary principle
6.7 Conclusions

7. Latest trends and developments in international environmental law

7.1 The development of structures aimed at global administration
7.2 The individual in international environmental law
7.3 Development of the concepts of offence against the world order
7.4 Broadening the scope of international environmental law - The concept of
sustainable development

1. INTRODUCTION

The purpose of this Article is to review international environmental law as, in

a certain sense, a special field of international law. In doing this, it is not the
intention to argue, or even imply, that international environmental law constitutes
 International environmental law 183

in some way a special branch or regime separate from the mainstream of

traditional or classical international law. Rather, what we will be doing is to look,
firstly, at certain ways in which special features of the environment as a subject-
matter of international law have resulted in particular solutions, applications or
rules within the general principles of international law which, if not necessarily
unique to, are at least particularly characteristic of, environmental law. Secondly,
we shall see, however, that the attempt to provide a necessary legal framework
to meet the problems of the environment, both alone and in relation to other
perceived problems of the modern world, are stretching and possibly straining
the limits of classical international law. The result is that international
environmental law is at present also characterised by the rise of novel theories,
many of which are not universally accepted, but which may, neverthless be very
influential in the whole field, political, legal and scientific, of environmental
protection.

1.1 What is special about the environment as a subject matter?

1.1.1 General background

In many ways international concerns and relationships in the environmental field

are different from those in other fields. There is quite a lot of trauma involved
in the state of the environment. Some commentators have even concluded that
the environment has reached a 'precrisis stage'.1 Others, no less pessimistically,
warn that we are in the middle of a process of unavoidable global environmental
change that prestages possibly catastrophic economic, social and political
consequences.2 The environment today, in its critical state, has specific features
which influence the international legislative process. Handl observes that the
scientific, economic and social context in which the global environmental crisis
develops is subject to change at increasing speed. This exerts great strain on the
international legislative system '. . . t o keep up with the rate of change, to
reorder regulatory priorities and, most importantly, to adjust procedurally and
institutionally to the increasing demand for quick legislative action.'3 Modern

1. G. Timoshenko, 'Biological Security Global Change Paradigm', 1 Co. JIELP(1990)p. 127.

2. B.R. Doos, 'Challenges to the Environment Requiring International Action', in W. Lang
and H. Neuhold, eds., Environmental Protection and International Law (1990).
3. G. Handl, 'Environmental Security and Global Change: the Challenge to International Law',
YIEL (1990) p. 4.
184 M.A. Fitzmaurice

international environmental law is no longer confined to national boundaries and

is now not only transboundary, regional and continental, but is seen as having
global dimensions. Having in mind its expanding scope, the legal instruments
which deal with environmental issues must be equipped to build, ultimately,
environmental global regimes.
The task of setting environmental standards now involves the need to reconcile
often severely conflicting aims and interests while having as its main purpose
to balance the objectives of maximum State participation, discouragement of free
riders and avoidance of unreasonably low levels of environmental protection.
Furthermore, these conflicts exist to a substantial extent between the developed,
industrial States, on the one hand, and the developing States, on the other. It is
becoming increasingly apparent that their reconciliation cannot be effected without
reference to other controversial issues such as global poverty, economic
development and the regulation of trade.
Traditional diplomacy is becoming inadequate in environmental matters. The
drafting, adoption and putting into effect of treaties, revisions and amendments
by traditional methods is very time consuming and the transaction costs of this
approach are unacceptable. Furthermore, present scientific knowledge of
environmental issues is not yet exhaustive so that to deal with them calls for new
legal tools to reconcile different opinions, disputes and conflicts between States.

1.1.2 Particular aspect

There are, of course, many individual aspects which differentiate the environment
from other fields over which international law operates. As these are to a large
extent inter-related, it is difficult to arrive at a satisfactory comprehensive list
of individual aspects. For the purposes of this article, we shall be laying emphasis
on certain major aspects which appear to lie behind those features of international
environmental law which may be regarded as special. These are the following:
(i) The speed of development of the global environmental crisis, of our
scientific understanding of it and of the technology to remedy it, as well as its
intensity and its wide geographic scope.
(ii) The need, in relation to environmental problems, to balance complex
conflicting economic interests between States at widely different stages of
development. Of particular importance is the conflict which exits, in economic
terms, or at least short-term economic terms, between economic development
and environmental protection (for instance the conflict which exists between the
environmental interest of developed States to bring an end to deforestation, and
the economic interests of developing countries to continue logging as a major
source of earning foreign currency). The problems arising from these conflicts
influence many aspects of the development of international environmental law.
 International environmental law 185

They are one of the factors lying behind the development of new methods of
negotiation, and of the structure, of treaties. They give rise to doubts as to
whether sufficient consensus, in terms of State practice or of the development
of opinio juris, can be achieved to arrive at adequate rules of international
customary law. These problems are also one of the major factors in the
development of the concept of 'sustainable development'.
(iii) The difficulty, in the case of environmental damage, of the restoration
of the status quo ante and/or payment of compensation for damage caused, which
has been the basis of traditional remedies for breach of international obligations.
Thus, while economic damage or related consequences are seen as being
relatively short-term in their effect, reversible, and capable of being compensated
in damages, damage to the environment has come to be seen as long-term in its
effect, even, indeed, irreversible, and consequently incapable of being
compensated in damages. An initial effect of this perception was the increasing
emphasis on the preventive element in the content of the obligation of States not
to cause environmental harm to other States, or to areas outside State jurisdiction.
But it has come to lie behind a number of other important areas of recent
development of international environmental law, such as the so-called
precautionary principle, the concepts of inter-generational equity and of
sustainable development.
(iv) The threat to the environment does not come solely, or even perhaps
principally, directly from the exercise of the political will of States, but from
the actions of private individuals and companies. On the other hand, the results
of those activities may either directly affect the daily lives of individuals living
in other States, or affect certain things, for instance by leading to the extinction
of species of flora or fauna, in which it is individuals essentially, rather than
States as such, who are perceived as having an interest. The result is that both
in terms of the imposition of obligations and of the exercise of rights, the
individual is perceived as an important, in some respects a necessary, player in
the environmental field.

1.2 Specific features of international environmental law covered in this

article

Reflecting the urgency of these problems, environmental law has become one
of the most dynamic areas of international law, and is one within which there
is constant change and development. Much of this would easily fall within the
terms of reference we have described above and in order to remain within the
limited confines of an article such as this, to some extent we have had to be
selective.
186 M.A. Fitzmaurice

We shall first briefly review the traditional sources of international law in

relation to the development of international environmental law to date. Of these,
the most important, namely treaties and customary law, have produced substantial
bodies of law — treaties in many fields, customary law largely in relation to the
prohibition of States from causing transboundary environmental harm. There is
nothing particularly controversial, in terms of the theory of sources, in the
development of these areas, the nature and content of which receive detailed
consideration in separate sections (sections 3 treaties, and 6 - obligations). The
most interesting aspect of sources per se really arises in relation to the future
development of environmental law, with respect to which there is a fairly
widespread, though in the view of this author not necessarily justified perception
of their inadequacy to meet the requirements of future environmental protection.
Not strictly a source of law, but in a sense related to sources, and also to be
contrasted with binding treaties, are so-called 'soft law' instruments, which,
whatever view may be taken as to their nature and effect, have come to play so
prominent a role in the process of the formation of new environmental standards
and rules as to merit fairly detailed consideration, which we shall do in section
4.
The next subject to be covered is the way in which special features of the
environment have led to the development of special rules and concepts relating
to the obligations of States to each other in the environmental field, of the
responsibility of States for breaches of those obligations, and of the consequences
of their breach. In a sense it would have been natural to have considered these
three factors, obligations, responsibility and consequences, in that order. But we
shall in fact consider first the question of responsibility for breach of
environmental obligations. We do this because of the considerable confusion
which has been introduced into this area of the law by the attempts of the ILC
to construct an apparently separate conceptual basis for the responsibility of States
for breaching obligations relating to the causing of environmental harm. This
attempt appears to have been made partly as a result of misconceptions as to the
real basis of the traditional doctrine of State responsibility; but it was also made
partly in response to perceived special factors relating to the environment. It will
be our contention that the better view is that there is no valid basis for the
conceptual distinctions which the ILC has sought to make and that it does not
represent either what the law is nor what it ought to be. On the other hand, there
are aspects of the ILC's liability regime which do respond to genuine needs
relating to special features of the environment; aspects which, however, can best
be met within the traditional concept of State responsibility. We shall therefore
consider arguments in relation to the conceptual basis first, leaving the positive
aspects of the ILC's work to be considered in the context of the nature and
content of environmental obligations and of their breach.
 International environmental law 187

We shall, in the final section of this article, consider some of the most recent
developments in international environmental law, some of which at least are
resulting in theories and solutions which are stretching the bounds of traditional
international law. These include the development of treaty structures aimed at
global administration of the environment, the development of concepts of offence
against world order, and the attempts at integration within a single field of aspects
of environmental protection with economic factors incorporated in the concept
of 'sustainable development'. Within this section we shall also refer, by reason
solely of the limits of an article such as the present one, only very briefly to the
developments which are arising as a result of the importance of the individual
in the environmental field.

2. SOURCES OF INTERNATIONAL ENVIRONMENTAL LAW

2.1 The sources of international environmental law to date

The sources of environmental law have included all of those enumerated in the
classic Article 38(1) of the Statute of the International Court of Justice. Of these,
at least until very recently, by far the most important in terms of both the quantity
and breadth of the rules that have derived from it, has been that of treaties.
Indeed, the history of the development of environmental law, as concerns both
the importance attached to it by the international community and the nature of
its content, can to a large extent be traced through the history of the conclusion
of international agreements concerning environmental issues. This history, and
the ways in which it has been influenced by the special features of the
environment are covered in section 3, but it may be noted here that the field of
the environment is one in which the striking role of treaties in its formation must
be noted.
One extremely important area of international environmental law, however,
has been developed largely on the basis of rules of international customary law
(deriving - as to which see below - from general principles of international
law). The principal rule of customary international law in this area is that
prohibiting States from causing transboundary harm to other States, a rule first
enunciated in the Trail Smelter arbitration, and more recently incorporated in
the important Principle 21 of the Stockholm Declaration. A number of other
obligations of States to other and - in particular neighbouring - States have
developed, or are in the course of developing, as rules of customary international
law in thefieldsof environmental law, or in the often related field of management
of shared resources. These include such things as obligations of prevention, the
provision of information and negotiation, as well as, in the field of shared
188 M.A. Fitzmaurice

resources, an obligation to achieve equitable utilisation of the shared resource.

These obligations, futhermore, fall within the customary law field of State
responsibility.
Behind the customary law rules (both already in existence, and in some cases
possibly still emerging), there lie certain general principles of international law
which have assumed a considerable importance in environmental law. Here we
are speaking of principles such as that of sic utere tuo non alienum laedas, and
good neighbourliness, and the principles of equity which are the foundation of
concepts such as 'equitable utilisation' in relation to shared resources and
'equitable principles' in cases of delimitation of exclusive economic zones and
continental shelf.
Among subsidiary sources of international law, judicial decisions have the most
fundamental importance. The most important of these have been the famous Corfu
Channel case (1949) and the Nuclear Test cases (1973). Current, or recent, cases
before the ICJ which are potential sources of environmental law include the
Certain Phosphate Lands in Nauru case (which was discontinued) and the case
of Hungary v. Slovak Republic-Gabcikovo-Nagymaros case. Perhaps the most
important pending case, from an environmental point of view, is the request for
an advisory opinion by the WHO: '[i]n view of health and environmental effects,
would the use of nuclear weapons by a State in war or other armed conflict be
a breach of its obligations under international law including WHO Convention?'
As is widely known, advisory opinions authoritatively state and interpret
international law. Lastly, we should not forget such famous arbitrations as the
Trail Smelter and Lake Lanoux arbitrations.4 Furthermore, without entering into
a discussion on the legal status of the UN resolutions, there is no doubt that they
are influential in the development of environmental law.

2.2 Sources and the future development of international environmental

law

The environment is a field in which the clash of opposing sovereignties has

become most evident and most intractable. This has resulted in a perception of
inadequacy in the traditional international law making process to meet the
requirements of the state of the environment. The perceived inadequacies are,
in broad terms, of two kinds. The first involves practical, more than conceptual,
aspects of the law making process, such as the relative slowness of the
development of new rules of international law either by the conclusion of treaties

4. See also P.W. Birnie and A.E. Boyle, International Law and The Environment (1992) pp.
9-32; A. Kiss and D. Shelton, International Environmental Law (1991) pp. 95-115.
 International environmental law 189

or by the development of new rules of customary law, and the difficulty of

formulating rules within existing international law structures that are both
sufficiently detailed and sufficiently flexible to meet the speed of development
of the environmental problem and of scientific understanding of it. The second
concerns, rather, aspects of the conceptual basis of the law making process (and,
indeed, of internationl law itself). In particular, it is here the emphasis on the
independent sovereignty of States, and the consensual — or 'voluntarist' — aspect
of both the law making process and the basis of obligations in international law
that are under attack.
There is no doubt that both these kinds of problems are real; but it is suggested
that traditional international law concepts are by no means bereft of solutions
to them.
In relation to the practical problems referred to, one should not lose sight of
the fact that the Vienna Convention for the Protection of the Ozone Layer of 1985
was already signed within less than a year of the discovery of the problem, and
the detailed Montreal Protocol on Substances that Deplete the Ozone Layer of
1987 was signed only two years later. In fact, generally, the extent and
sophistication of the treaty making process in the environmental field described
in section 3 has been impressive and suggests that this source has considerable
potential to meet the requirements of the environment in the future. Much the
same may be said of the development of law through the development of new
customary rules. It is now generally accepted that such development can take
place, as it was already put in 1967 by Sir Robert Jennings, 'if not quite instantly
at any rate with surprising celerity.'5 He points out also that the existence even
then of 'new procedures and techniques for consensus decision-making — and
not the least of these is the work of the International Law Commission and the
influence of codifying treaties upon custom itself — are of very great importance
because it is here that we can see the beginnings of ways of law-changing and
law-making which may become the international relations equivalent of general
legislation.' To the codifying work and instruments referred to, one may now
add the so-called 'soft law' instruments which have become such a feature of the
environmental scene (see section 4 below), one purpose of which, at least, must
be to act as a focus for the development of State practice in relation to complex
environmental standards and objectives. Generally, it must be said that to the
extent that the production of formal instruments by the global community, in
particular under the auspices of the United Nations, are increasingly regarded
as manifestations of State practice and strong evidence of opinio juris, the
extensive, some might say excessive, output of all kinds of declarations,

5. Hague Recueil (1967-11) p. 335.

190 M.A. Fitzmaurice

recommendations, resolutions and conventions in recent years must go some way

to promising the achievement of that objective.
The second problem may, in practice, prove to be more intractable. In one
view, what is required is no less than 'formal abandonment of the idea that the
principle of individual state consent continues to represent a fundamental defining
characteristic of the international legal system,'6 opposition to which is
characterised by the same author as 'rearguard action by defenders of an
anachronistic view of national sovereignty. ' 7 The problem of the incompatibility
of the level of freedom of action claimed by States in practice in relation, for
instance, to the development and utilisation of natural resources within their
borders, is indeed real. While an article such as the present one is not the place
for a discussion of the rival theoretical bases of international law, one may at
least point to the fact that such a discussion could well start within classic theories
of the basis of the obligation in international law, of which the 'social' view8
of Sir Gerald Fitzmaurice might well be the first. What can be said at this stage
is that, whatever underlying basis of obligation is preferred, it is not really the
case that traditional international law has ever supported a theory of total freedom
of sovereign States, even within their own borders. The accepted concept of
equal, sovereign States of itself, as a matter of logical necessity, provides the
basis for very much the kind of restraint which environmentalists call for as a
matter of practical necessity. Sir Gerald Fitzmaurice stated that it must follow
from the independence and equality of States that 'one State cannot claim certain
conduct from another as an inferior.'9 He continued in the same passage: 'States
therefore, in their mutual relations, apply a system which each is obliged to
regard as legally binding on itself, as the indispensable condition of claiming it
to be binding on another equal, sovereign independent State.' The same concept
is expressed by the authors of Oppenheim in the following passage, which relates
it directly to the modern problems of the environment:

'Much of the purpose of a doctrine of abuse of rights is directed to securing a balance

between the right of the state to do freely all those things it is entitled to do, and the
right of other states to enjoy a similar freedom of action without harmful interference
originating outside their borders. The need for such a balance has been underlined by

6. Handl, loc. cit. n. 3 at p. 33.

7. Handl, loc. cit. n. 3 at p. 32.
8. Hague Recueil (1957-11) p. 38.
9. Ibid., at p. 39.
 International environmental law 191

the rapid growth of activities which could cause harm far outside the area where they
take place . . .'10

The point of this in considering the loss of confidence that has manifested itself
in international law making processes in the environmental field is that, granted
the concept of sovereign, independent and equal States, certain consequences
must, both as a matter of logic and as a matter of practical necessity, follow.
These consequences — or at least some of them - are capable of being, and have
been, enunciated in the form of legal principles relevant to environmental
protection; and these legal principles can be, and indeed under Article 38 of its
Statute must be, applied by the International Court of Justice. It is thus that the
future importance which Sir Robert Jennings ascribed to the combination of
general principles of law and judicial decision as sources of development of
international law comes about,11 an importance which he has recently reiterated
directly in relation to the environmental crisis.12

3. TREATIES IN THE FIELD OF ENVIRONMENTAL LAW

3.1 The growth in environmental treaty law since 1972

1972, the year of the United Nations Conference on the Human Environment,
which led to the issue of the Stockholm Declaration and the establishment of the
United Nations Environmental Programme, is often taken as an approximate date
for the start of the modern era in international environmental law. The most
immediately obvious characteristic of the environmental field generally during
the period since that date has been the explosive growth in the awareness of the
environmental threat and political activity aimed at establishing a basis to meet
it. This political activity has been reflected in the development of international
environmental treaty law. The last two decades have been extremely fruitful in
the production of bilateral and multilateral conventional regimes aimed at
environmental protection and resource management either within a particular
geographical area, or in relation to particular activities, and now beginning to
aim at global protection of ecological systems. Thus, while in 1972 there were

10. R. Jennings and A. Watts, eds., Oppenheim's International Law, 9th edn., Vol. I (1992)
p. 408.
11. Loc. cit. n. 5, at p. 345.
12. Sir Robert Jennings, 'Environmental Policy and Law, 22/5/6' (1992) p. 312, (text of a
statement made by the author to the UNCED entitled "The role of the ICJ in the Development of
International Environment Protection law').
192 M.A. Fitzmaurice

comparatively few international environmental treaties and conventions, today

nearly 900 legal instruments have been counted in which at least some provisions
are concerned with environmental issues.13 So great, indeed, has this growth
been that now a 'treaty congestion problem' is perceived to exist.14 This volume
of activity has also been accompanied by important developments, reflecting the
special features and problems of the environment, in both the manner of
negotiation and structure, as well as in the content, of environmental treaties.

3.2 Developments in the processes of negotiation and structure of

environmental treaties

Many of the special features of the environment referred to in section 1 combine

to render traditional methods of negotiation and structure of treaties inadequate.
The first of these is the urgency of the problem, and the sheer quantity of
legislation that is perceived as necessary to meet it, in the light of which the
notorious slowness of the processes of negotiation and ratification of traditional
treaties renders them ineffective. Secondly, the needs of environmental protection
call for the setting of standards and taking of action which are often based on
scientific knowledge which is subject to continuous change and development. To
take account of this, treaty structures are needed which are not aimed at, as it
has been put, 'institutionalising stability',15 but, on the contrary, at in-
stitutionalising a structure within which change, responding to both development
of understanding of the scientific nature of the problems and of their solution,
and to developing levels of willingness of the parties to be bound by detailed rules
in relation to them, can be encouraged and channelled within certain broadly
agreed outlines.16 As it has been put, 'organizing the process to shape consensus
in a specific and often narrowly defined area of international relations is the most
important operative function of an international regime."7
To fulfil these requirements, the growth in the quantity of environmental
treaties has been matched by the development of new types of treaty structure.

13. E. Brown Weiss, 'Introductory Note, United Nations Conference on Environment and
Development', 31 ILM (1992) p. 814; E. Brown Weiss, International Environmental Law:
Contemporary Issues and the Emergence of a New World Order, 81 Georgetown LJ (1993) p. 675;
P. Malanczuk, Towards Global Environmental Legislation, Paper for the UN/IAF Workshop on
'Organizing Space Activities in Developing Countries: Resources and Mechanisms' (1993).
14. Brown Weiss, 'International Environmental', loc. cit. n. 13, at p. 697.
15. J.L. Sax, 'A General Survey of the Problem', in Science for Better Environment,
Proceedings of the International Congress on the Human Environment (1976) pp. 753 and 755.
16. Handl, loc. cit. n. 3, pp. 5-7.
17. T. Gehring, 'International Environmental Regimes: Dynamic Sectoral Legal Systems',
1 YIEL (1990) p. 38.
 International environmental law 193

Thus there have been conventions with supplementing protocols, such as the 1979
Geneva Convention on Long-Range Transboundary Pollution. Some conventions
have been accompanied by annexes, protocols and regulations containing technical
data and may be subject to an 'opting-out' procedure whereby some States parties
to the main convention are not bound by all the detailed technical provisions.
Yet another type are so-called 'umbrella treaties' consisting of a general
framework with accompanying protocols, such as the 1976 Barcelona Convention
on Protection of the Mediterranean Sea. The purposes of these various structures
include the following:
— to delay the necessity for all States to bind themselves at the outset to detailed
or contentious standards or rules;
— to delay the necessity to formulate detailed standards or rules;
— to make provision for regular revision and amendment of treaty provisions
through procedures which are less cumbersome than those involved in a full
diplomatic conference;
— to make provision for input to the formulation and revision of detailed rules
and standards of developments in scientific knowledge;
— to make provision for special dispute settlement procedures which are less
formal than the traditional recourse to an independent tribunal (the ICJ or
an international arbitral tribunal), and which will render it easier to apply
internally-defined criteria to the process.
It should be noted that, within these various structures, detailed rules and
standards are often included in treaty protocols or annexes which, however, are
not, at least initially, binding on the parties, thus constituting one of the areas
in which a so-called 'soft law' approach is being used.

3.3 Developments in the content of environmental treaties

The earliest environmental treaties involved very specific issues, such as

boundary rivers, fishing rights and protection of particularly valued animal
species. There has been, in particular during the last two decades, a tendency
to increasingly widen the scope of environmental treaties, both in terms of their
geographic extent and in terms of their subject-matter, so that the latest treaties
may aim at the protection of the global ecosystem. The obligations of States under
these treaties have also become ever more comprehensive, including now not only
duties not to cause harm, but also duties in relation to exchange of information,
scientific monitoring of the effects of potentially polluting activities and
obligations to achieve specified standards in relation to, e.g., particular emissions.
The most recent development in terms of the content of environmental treaties
is the inclusion within their framework of economic issues such as trade and
194 M.A. Fitzmaurice

development, in response to a growing perception of the impossibility of

separating these issues (see further section 7 infra).

3.4 Treaty regimes as special sectoral legal systems

Taken to its extreme, some recent environmental treaty regimes have been said
to constitute special regimes, to some extent at least separate from mainstream
international law.IS These are regimes which have been set up under conventions
which, though they have been concluded within the framework of traditional
international law, once in operation involve systems which effectively bypass the
mechanisms of traditional law. In particular, they may be expected to involve
the setting up of some permanent forum between the parties, the functions of
which go beyond those of implementation of the rules set up in the convention,
and technical supervision, which characterise the technical commissions of more
traditional conventional regimes, but also have a rule making capacity which may
in practice even involve revision of the convention itself. A second essential
feature of such regimes is the provision of their own dispute settlement
procedures. Thus, it has been said: 'By internalising the making and application
of international law within their respective issue-areas, international
environmental regimes develop into comparatively autonomous sectoral legal
systems.'19
One may illustrate the concept by comparing two major treaty regimes in the
environmental field. The first of these, the regime under the Helsinki Convention
on the Protection of the Marine Environment of the Baltic Sea of 1992, involves
the express application of traditional methods of law making and dispute
settlement, and fairly clearly does not constitute a special regime in the above
sense. The second (the regime under the Montreal Protocol 1987) illustrates
internalisation in both these respects.
The regime under the Helsinki Convention is fairly typical, in terms of its
legal structure, of the umbrella-type convention. It sets up a Commission with
substantial capacities in the technical field, and in relation to the development
of technical rules. But it remains firmly within the framework of traditional
international law in the vital areas of amendment of the Convention itself, and
of the settlement of disputes. Thus, in particular, proposals to amend the
Convention were developed at the level of a full diplomatic conference between
the parties, rather than within the forum of the Helsinki Commission; and the

18. Gehring, loc. cit. n. 17, at p. 35.

19. Gehring, loc. cit. n. 17, at pp. 36-37.
 International environmental law 195

Convention itself expressly provides for the settlement of disputes between the
parties to be submitted to international arbitration or to the ICJ.
By comparison, in support of the contention that the regime under the
Montreal Protocol20 does constitute a 'comparatively autonomous sectoral legal
system' in the sense referred to above, Gehring points in the first place to a
number of ways in which the Meetings of the Parties to the Protocol effectively
arrived at amending the arrangements under it without the formalities which
would have normally been required under a traditional international law
regime.21 In the second place, he points to the emphasis in the Montreal
Protocol on the development of a procedure aimed at overcoming the difficulties
of using the traditional remedies for breach of treaty in an environmental context,
that is to say of a 'non-compliance procedure', adopted by the Second Meeting
of the Parties as an alternative to a more traditional dispute settlement procedure
involving arbitration between particular parties. Gehring points out that 'while
disputes submitted to arbitration are to be settled in accordance with international
law, submissions to the non-compliance procedure are to be considered "with
a view to securing an amicable resolution of the matter on the basis of respect
for the provisions of the Protocol"'.22

3.5 Civil liability treaty regimes

Environmental protection demands action from non-State parties, from individuals

in the course of their daily life (waste disposal, energy consumption, use of ozone
depleting gases) as well as from industrial companies (emissions, energy
consumption, resource consumption). In some respects, international law has
adopted the approach to liability of, in particular, industrial polluters through
the medium of State responsibility. A more effective means may be to 'couch
international regulations in terms of private legal obligations directly incumbent
on the principal actors.'23 This approach may also be the most effective way
of upholding the 'polluter pays' principle championed by the OECD.24 Some
treaty regimes relating to the causing of environmental harm, the so-called civil
liability regimes, notably the 1963 Vienna Convention on Civil Liability for
Damage, the 1969 International Convention on Civil Liability for Oil Pollution
Damage and the 1971 International Convention on the Establishment of a Fund

20. The text may be found in 26 ILM (1987) p. 2550.

21. Gehring, loc. cit. n. 17, at pp. 47-50.
22. Ibid., p. 52.
23. Handl, loc. cit. n. 3, at p. 11.
24. Recommendation c(74) 233, 14 November 1974; Recommendation c(72) 128, 26 May 1972.
196 M.A. Fitzmaurice

for Oil Pollution Damage (as amended by the Protocols of 1976 and 1984) do
adopt this approach.
Traditionally civil liability and State responsibility were distinct. State
responsibility was related to the wrongful acts of States, whereas the subject-
matter of civil liability was primarily that of relations between private subjects,
though with the possibility of the participation of the State.25 Civil liability
regimes contain material and procedural rules, relating to equal access, non-
discrimination, etc.26
The 1969 IMO Civil Liability Conventions channel liability to the operator.
The operator has to maintain an insurance policy to assure the availability of
funds for the compensation of victims of accidental transfrontier pollution
damage. The State, however, retains a residual responsibility. If the private
person's financial coverage is insufficient in the event of enormous claims or
when accidents involve single ship or single plant companies, the State would
be liable.27 The 1971 International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage28 in Article 15
obligates the contracting States to provide information on persons liable to
contribute to the Fund; and in a new 1984 Protocol (not yet in force) the residual
liability of the State is expanded so that if a contracting State does not fulfil its
obligations to submit to a Director the communication required by the convention,
and this causes financial loss for the Fund, the contracting State is to be liable
to compensate the Fund. It is submitted that even in the absence of the express
treaty provisions on the State's residual responsibility, the State, due to its control
over risk-creating activities and to the fact that it benefits from them, must be
responsible 'in the last resort'.29 Another way in which State responsibility may
come about is when a State refuses to implement a treaty-based civil liability
regime by enacting appropriate municipal law. Such refusal may amount to
breach of international obligations and thus entail State responsibility in
accordance with general rules of State responsibility.30 In practice, however,
since the establishment of the oil liability regime, States have not been prepared,

25. Ibid., A. Rosas, 'Issues of State Liability forTransboundary Damage', Nordic JIL (1991)
p. 34.
26. G. Doeker and T. Gehring, 'Private or International Liability for Transnational
Environmental Damage - The Precedent of Conventional Liability Regimes, 2 J Environmental
L (1990) pp. 1-16.
27. I. R. Pinto-Dobering,' Liability for the Harmful Consequences of Instances of Transfrontier
Pollution not Prohibited by International Law', 38 OzoRV (1987) p. 106.
28. 11 ILM (1972) p. 284.
29. Pinto-Dobering, loc. cit. n. 27, at p. 108.
30. G. Handl, 'State Liability for Accidental Transnational Environmental Damage by Private
Persons', 74 AJIL (1980) p. 525.
 International environmental law 197

even on a subsidiary basis, to take upon themselves inter-governmental liability

obligations.31
The 1960 Paris Convention,32 the Supplementary Convention (the Brussels
Convention) of 1963, the 1963 International Conventions on Civil Liability for
Nuclear Damage (Vienna Conventions) and the Convention Relating to Civil
Liability in the Field of Maritime Carriage of Nuclear Material 197233 relate
to damage in nuclear activities. These conventions introduce a standard of
absolute liability (though it should be noted that they provide for a ceiling on
the level of compensation available) combining private and international elements.
They channel liability onto the operator of a nuclear installation, though they
stipulate severe limitation of liability available in case of damage.34 Payments
up to a prescribed limit is supported by compulsory insurance or security held
by the operator and guaranteed by the State of installation or registry. Additional
public funds are provided for as well by the Convention Supplementary to the
Paris Convention. The Paris Convention provides the possibility of an additional
basis for inter-governmental claims according to general international law rules
of State responsibility. If insurance funds are insufficient, States must provide
them. Thus, there is a residual responsibility upon States to compensate damage
caused by nuclear activities when the operator is not able do so.
The view is held that civil liability regimes, notwithstanding their private
character, should be governed by international law ' . . . for only states can set
internationally recognised norms which are significantly uniform and authoritative
and which can, accordingly, be expected to be generally observed.'35
Furthermore, the settlement of claims under private regimes can best be dealt
with under well-defined norms of conventional law. Civil liability regimes involve
two layers of claims: first purely private claims on the basis of domestic law and,
secondly, claims between States on the basis of international law and concerning
reparations. Besides, even the claims of individuals are founded on the basis of
international law, i.e., the international convention, which may in turn lead to
the setting up of an inter-governmental organisation such as an oil pollution fund.
Civil liability regimes, even when they do not include any obligation on the part

31. Tovlad and Cristal are private liability agreements for the oil transporting and the oil
processing industries. B. Brennan, 'Liability and Compensation forOil Pollution from Tankers under
Private International Law, Tovalop, Cristal and the Exxon Valdez', 2 Geo. Int. Env. L Rev. (1989)
p. 1.
32. Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention),
6 EY (1960).
33. ILM (1972) p. 277.
34. Doeker and Gehring, loc. cit. n. 26, at pp. 8-9.
35. T. Gehring and M. Jachtenfuchs, 'Liability for Transboundary Environmental Damage
Towards a General Liability Regime?', 4 EJIL (1993) p. 104.
198 M.A. Fitzmaurice

of a licensing State to contribute to compensation of damage '. . . overlap with

the traditional concept of state responsibility' and '[s]uch overlapping is
unavoidable because different criteria apply to the two concepts.'36 The State
is not exonerated economically from compensatory claims and finally the better
drafted and more comprehensive are civil liability regimes ' . . . the less urgent
is the drafting and refining of general provisions of state responsibility and
international liability up to the point at which they become applicable.'37 Thus,
in conclusion, even the most enthusiastic proponents of private liability admit
that in cases where a lack of funds exists, it is desirable to create a subsidiary
liability as regards the licensing State as part of a combined private/public
regime.

3.6 The Finnish-Swedish Frontier Rivers Commission as an example of

a special civil liability regime as contained in a treaty

The Finnish-Swedish Frontier Rivers Commission (the 'FSFRC') is the body set
up under the Boundary Rivers Agreement of 16 September 1971 (the 'FSFRC
Agreement') between Finland and Sweden to manage the watercourse system
which constitutes, and lies on either side of the greater part of the border between
them. It represents what may be seen as the logical extreme of a civil liability
regime, in which both rights and obligations in relation to the environment are
accorded to individuals, thus effectively excluding the operation of State
responsibility as between the two State parties. The FSFRC is not in itself an
international body in the sense of one which applies principles of international
law between States or whose decisions are intended to be enforceable through
international law. Rather, the FSFRC embodies a merging of certain internal or
municipal law powers, of the two States which were previously administered,
with regard to the territory of each State, by that State's own organs, judicial
or administrative, but which are now administered by the single body over the
whole FSFRC area.
The FSFRC is primarily a body responsible for the management of the
international watercourse; its functions encompass, however, strong elements of
environmental protection. The FSFRC has judicial, administrative and supervisory
functions, which roughly correspond to functions of water rights courts and
licensing boards in both States. The setting up and operation of the FSFRC may
be said to involve the application by the two States of international law principles
such as the duty to co-operate, the principle of equitable utilisation, doctrines

36. Ibid., p. 105.

37. Idem.
 International environmental law 199

such as sic utero tuo ut alienum non laedas and the duty of riparian States to
settle disputes relating to the shared international watercourse. But the manner
of application of these principles has its own special characteristics due to the
fact that, though set up under an international agreement, the States as such are
largely excluded from its activities. From this it follows that certain notions
related to State responsibility, such as reparations or countermeasures, simply
cannot be applied to this commission since its foundations are different and not
comparable with laws regulating relations between States.38

4. 'SOFT LAW

4.1 What is meant by 'soft law'

It is a feature of the development of environmental law (the reasons for which

are described in subsection 4.3) that it is characterised by the production by States
of numerous forms of non-binding declarations and guidelines and non-binding
sets of rules and standards. Such instruments are produced in formal
circumstances, for instance as the final product of conferences, or even within
the framework of binding treaties or conventions. The intended effect of such
instruments has been given the name of 'soft law'.
Whatever this effect actually is (which is not at all easy to define), it is not
binding in the legal sense and is therefore not, in any usual sense of the word,
'law' at all. To this extent, soft law is a misleading term though it has been
described as 'a convenient term for describing the sometimes de lege ferenda
status' of the instruments in which it is contained.39 In fact, 'soft law' may occur
in any circumstances in which States wish to accord significance to something
agreed upon between them which certainly goes beyond the mere expression of
its being a desirable objective, or mere aspiration, which may even go beyond
an expression of intent, but which is plainly intended to amount to less than a
present expression of intention to be bound by it.40

38. The FSFRC is one of a number of international bodies which have been set up in relation
to what are generally now referred to as international watercourses and which are also variously
described as border river and lake basins commissions. For an extensive study of the Commission
see M. Fitzmaurice, "The Finnish-Swedish Frontier Rivers Commission', Hague YIL (1992) pp.
33-67.
39. Birnie and Boyle, op. cit. n. 4, at p. 16.
40. For a general discussion of the subject, and with particular reference to the importance of
the intention of the parties in drawing the line between law and 'soft law', see G.M. Borchardt and
K.C. Wellens, 'Soft Law in the European Community Law', 14 EL Rev (1989) p. 267.
200 M.A. Fitzmaurice

4.2 The origins of 'soft law' in the economic field

As stated above 'soft law' was first used in international economic law — (where
it is also a fairly widely accepted concept,41 in particular in dealing with economic
issues which were thought to be within the sovereign power of States.42 The
nature of 'soft law' was perfect for uses such as combining collective regulations
and restraint in economic dealings with flexibility and freedom to manoeuvre
where events or changing circumstances so require. The use of 'soft law'
sometimes indicates an attempt to build a new economic structure.
'Soft law' instruments were perfectly suited for the transactions and relations
which emerged after the Second World War which left, inter alia, many
decolonised States with weak economies and developed States without assured
access to raw materials.43 International economic relations suddenly had to
accommodate almost irreconcilable differences between the approaches of
different legal systems and the different goals of a highly diverse and vastly
enlarged group of members of the international community. Thus, States were
faced with the problems of achieving an agreement on universally acceptable rules
and an unwillingness to undertake legal obligations. They were, though not averse
to collective action, not prepared to fetter their freedom of action. As a rule,
States are willing to take legal obligations when they expect to comply with
them44 and to avoid legal obligations because of technical problems involved
in forming and terminating them.45

4.3 'Soft law' hi the environmental field

In international environmental law, the grounds for employing 'soft law' are
similar to those in international economic law, in particular relating to the
problems of reaching agreement between States at widely disparate stages of
development and with widely differing economic interests. To these reasons may
be coupled a number of others which arise as a result of special features of the
environment, which lend themselves particularly well to 'soft law' solutions. Of
particular importance, in this respect, are the problems arising from the speed

41. I. Seidl-Hohenveldern, International Economic Law (1989) pp. 42-45.

42. G. Schwarzenberger, 'ThePrinciplesandStandardsoflnternationalEconomicLaw',Hague
Recueil (1966-1) p. 117 at p. 127.
43. Seidl-Hohenveldern, op. cit. n. 41, at pp. 173-175.
44. M. Botha, 'Legal and Non-legal Norms — A Meaningful Distinction in International
Relations?', 11 NYIL (1980) p. 91.
45. T. Gruchala-Wesierski, 'AFrameworkforUnderstandingSoftLaw', 30McGillLJ(1984)
p. 40.
 International environmental law 201

particular importance, in this respect, are the problems arising from the speed
with which the world's perception of the environmental crisis has developed, and
the urgency of the need to find solutions. There is a desire to, as it were, run
ahead of the relatively slow process of negotiation and ratification which is
involved in the traditional treaty making process by, in the first place, agreeing
more speedily on standards and objectives, which may be contained in non-
binding declarations, for example, the Declaration on the Protection of the Marine
Environment of the Baltic Sea ('The Ministerial Declaration'),46 or resolutions
of international organisations, or, in the second place, agreeing on the outline
structure of regulatory regimes in framework treaties, while leaving the detailed
norms to be applied within them in, at least initially, non-binding form. Exactly
similar solutions may be used to meet the problems which arise as a result of
the lack of certainty which exists in relation to the scientific basis of the crisis
or of the measures to be adopted to meet it. A further reason for the use of the
many formulations of concepts and principles of a legal nature in non-binding
instruments is to stimulate State practice and provide a focus for the expression
of the opinio juris, which is needed to speed up the process of formulation of
legally binding principles through development of customary law (a matter which
has been referred to above in section 2.2).

4.4 'Soft law' in the settlement of disputes

The use of a 'soft law' approach in international environmental law leads to

emerging 'soft approaches' to dispute settlement. As elaborated by one author:
'[t]he use of hard techniques can exacerbate, not ameliorate disputes, and if these
are adopted at the outset they can provoke more extreme and political positions
than would otherwise be the case. Soft settlement by development of 'soft law'
standards can channel negotiations and lead to peaceful settlement.'47 Recent
treaties have established bodies for monitoring and collecting information,
reporting, inspection of party performance and negotiation. Such bodies are not
endowed with formal powers but rather act by exerting pressure on the
community.48 The same concept may be seen in the provisions relating to
negotiable compensation contained in the ICL's Liability Draft (see section 5
below).

46. Baltic Sea Environment Protection, Doc. No. 26, (1987) pp. 30-36.
47. Boyle and Bimie, op. cit. n. 4, at p. 191.
48. A. Boyle, 'International Law and the Protection of the Global Atmosphere: Concepts;
Categories and Principles', in R. Churchill and D. Freestone, eds., International Law and Global
Climate Change (1991) p. 18.
202 M.A. Fitzmaurice

5. RESPONSIBILITY FOR ENVIRONMENTAL DAMAGE AS

DISTINCT FROM GENERAL STATE RESPONSIBILITY
- THE ILC LIABILITY DRAFT

5.1 The nature and origin of the problem

The question of whether there exists in international law a separate regime of

'liability' for environmental damage which is conceptually different in its basis
from the general regime of State responsibility arises because the ILC, when it
first came to cover the topic of State responsibility, limited its work to
responsibility for what it termed 'wrongful' acts, meaning acts which were in
breach of a duty imposed on a State by international law. The ILC expressly left
on one side for future consideration the question of responsibility for, as it put
it, acts 'which international law does not prohibit'. Thus, as is well known, the
ILC produced, in relation to the former type of obligations, its Draft Articles
on State Responsibility (the 'Responsibility Draft') and in respect of the latter
type, the series of drafts on 'International Liability for Injurious Consequences
of Acts not Prohibited by International Law' (the 'Liability Draft').49
When work started on the Liability Draft, it was intended that the resulting
concept of 'liability' should be of a general nature, also applicable in, for
example, the economic as well as in the environmental sphere; but it fairly soon
became apparent that all the source material on which the work had to be based
came from the environmental field and the Liability Draft came to be expressly
limited to the physical consequences of activities which 'cause, or create a risk
of causing, transboundary harm.'50 Furthermore, the regime for State 'liability',
at least as initially proposed by Special Rapporteur Quentin-Baxter in his
Schematic Outline, was in a number of respects conceptually distinct from the
regime of State responsibility. Thus, though this would, of course, not have made
environmental law into a separate regime overall, there would clearly have
existed a separate regime of 'liability' relating to the effects of environmental
harm arising out of acts not prohibited by international law which would not have
been applicable in other fields of international law.

49. Quentin-Baxter's Second Report on International Liability - 'Schematic Outline', in ILC

Yearbook (1982-11) p. 63, sections 3 and 4; Barboza, Sixth Report, UN Doc. A/CN.4/428 (1990)
(6th Report).
50. See the Preliminary Report of Quentin-Baxter, ILC Yearbook (1980-11) p. 248.
 International environmental law 203

5.2 Assessment of the ILC approach

5.2.1 Scope of the assessment

The topic of State responsibility/State liability has received much attention. We

shall be concerned, however, not so much with the detailed nature of the two
regimes of State responsibility and international liability (as propounded by the
ILC), but with the question whether liability for environmental damage is or
should be separate from State responsibility and if, as is the view of the present
author (see below), there is no such fundamental separation, then with the
question of what special features nevertheless apply to responsibility in relation
to environmental damage.
As is apparent from the extensive literature on the subject, to which reference
has been made above, the original decision to separate the 'responsibility' topic
from the 'liability' topic, as well as the main conceptual basis initially
incorporated in the Liability Draft, have been the subject of widespread criticism,
not to say even condemnation and to some extent at least the latest Liability Draft
has abandoned important aspects of the original concept bringing it closer at least
to the conceptual basis of the Responsibility Draft. Even on this basis, however,
criticism persists and it is far from clear where the ILC's work on 'liability' will
end up. Before considering this, however, it is necessary to summarise briefly
the conceptual basis for the regime proposed in the Liability Draft and the
apparent thinking of the ILC in separating the two topics in the first place.

5.2.2 The conceptual basis of the Liability Draft

We will consider this from the point of view, first, of an analysis of the ILC's
use of the terms 'responsibility' and 'liability' in the two drafts, and, second,
of their concept of a 'compound primary obligation' as propounded in the initial
version of the Liability Draft.

5.2.2.1 Terminology

The ILC reserved the word 'responsibility' to cover the whole range of
obligations involved in its work on State responsibility and the word 'liability'
to cover the whole range of obligations involved in its work on the 'liability'
project. In so doing, the ILC, simply as a matter of the use of differing
terminology, departed from what may be regarded as the most widely accepted
distinction drawn between these two words, namely, that 'responsibility' refers
to an obligation arising from a legally binding rule (often referred to as a primary
rule), while the word 'liability' refers to obligations which only arise as a result
204 M.A. Fitzmaurice

of the breach of such a rule (these obligations often being referred to as

secondary rules).51 As Professor Goldie has put it: '[liability connotes exposure
to legal redress once responsibility and injury arising from a failure to fulfil that
legal responsibility has been established.'52 An example from a treaty can be
found in the Law of the Sea Convention of 1982 in Article 139(2) which reads
as follows: '[w]ithout prejudice to the rules of international law and annex III,
article 22, damage caused by a state Party or international organisation to carry
out responsibilities under this Part shall entail liability.'

5.2.2.2 The 'compound primary obligation'

The way in which the ILC used the words might have done no more than cause
terminological confusion, had both Drafts retained the underlying concepts of
primary and secondary obligations, of obligation to act in accordance with rules
of international law and of consequences flowing from the breach of those rules.
But, while they did, indeed, retain this distinction in the Responsibility Draft,
in the first of the Liability Drafts (the Schematic Outline of Quentin-Baxter, and
his commentaries on it), the ILC abandoned the dual obligation concept and
attempted to construct a single obligation concept involving what was referred
to as a 'compound primary obligation' which was to incorporate four individual
duties, namely, to prevent, to inform, to negotiate and to make reparation. Even
the last element in this compound norm - the duty to make reparation — was
considered as a primary obligation, since it was not, unlike the duty to
compensate under the Responsibility Draft, based on any wrongful act. It was
propounded, however, that breach of this last element in the compound norm
was an international wrong which would result in State responsibility.

5.2.3 Reasons for the ILC approach

This article is not the appropriate place for a detailed discussion of the ILC's
reasons either for separating the two topics at all, or for adopting their novel
single compound obligation concept. These matters have been treated ably and

51. It may be noted that this distinction is, in fact, only possible in the English language;
languages such as French and Spanish, for instance, having only the single word 'responsabilite'
and 'responsabilidad', respectively, to cover both meanings.
52. L. Goldie, 'Concept of States and Absolute Liability and the Ranking of Liability in Terms
of Relative Exposure to Risk', 16 NYIL (1985) pp. 175 and 176.
 International environmental law 205

at length by others.53 But it is necessary to allude to them in considering the

reaction to the Liability Draft and in stating the broad reasons for concluding
that there is not a conceptually separate regime relating to responsibility for acts
not prohibited by international law as propounded by the ILC. In fact, the ILC's
reasons for the original separation of topics are not entirely clear; but at least
two main considerations seem to have influenced them, which may be
summarised as follows.
(i) It appears that the view was taken that the concept of wrongfulness inherent
in State responsibility necessarily entailed prohibition of the activity which caused
the damage; that many of the activities which cause environmental damage are
in themselves beneficial and should not be prohibited, even though some regime
to deal with the problems arising from the effects of these activities on other
States was necessary; and that, therefore, they had to propound rules which
would, as they put it, assert an obligation without previously finding
responsibility for a wrongful act or omission. This view resulted in both the
perception that liability with respect to acts not prohibited by international law
were of a different order altogether from wrongful acts covered by State
responsibility, so justifying the separation of topics, and also in the particular
conceptual basis adopted in the Schematic Outline.
(ii) Another apparent perception of some members of the ILC was that the
wrongfulness required to found State responsibility was to be equated with fault
or culpa. From this, it was inferred that the State responsibility regime was
incapable of supporting strict (sine culpa) liability and, because to introduce such
liability with respect to environmental damage was one of the objectives of the
ILC, a separate regime was thought to be necessary.

5.2.4 Critical response to the distinction

The major obligation of States with regard to environmental damage to other

States lies firmly within the customary law regime of State responsibility. This
is based on the Trail Smelter arbitration, where it was stated t h a t ' . . . no State
has the right to use or permit the use of its territory in such a manner as to cause
injury by fumes to the territory of another or the properties or persons therein,
when the case is of serious consequence and the injury is established by clear

53. N.L.J.T. Horbach, "The Confusion about State Responsibility and International Liability',
4 LJIL (1991) p. 47. S. Erichsen, 'Das Liability-Project des ILC, Forentwicklung des Allgemeinen
Umweltrechts Oder Kodifizierung eines Haftung fur besonders gefahrliche Aktivitaten? ',51 ZaoRV
(1991) p. 94.
206 M.A. Fitzmaurice

and convincing evidence.>54 This principle was endorsed by the ICJ in the Corfu
Channel case where the Court stated that it is 'every State's obligation not to
allow knowingly its territory to be used for acts contrary to the rights of other
States.'55 Principle 21 of the Stockholm Declaration also stresses die responsi-
bility of States to 'ensure that activities within their jurisdiction or control do not
cause damage to the environment of other states or areas beyond the limits of
national jurisdiction. '56 Against this background, both die basis for a separate
'liability' regime, and the basis of die regime proposed by the ILC, have been
shown to be flawed.
Brownlie doubts die academic value of the Commission's distinction and
assesses die Liability Draft as 'fundamentally misconceived'. According to him,
State responsibility (including die jurisprudence of die Trail Smelter and Corfu
Channel cases) relates to harm caused by lawful activities. The distinction
between lawful and unlawful activities is, dierefore, widiout purpose and lacks
support in eidier State practice or in jurisprudence. What is crucial is the content
of relevant rules. A similar criticism is made by Boyle, according to whom '. . .
the notion diat activities incurring responsibility for harm are unlawful and
prohibited can be seen as misconceived and oversimplified; die elements of harm,
knowledge and control are drawn direcdy from comparable use in a state
responsibility context.'57
Akehurst is also highly critical of die ILC's basic conceptual distinction
between die 'responsibility' and die 'liability' topics. In die first place, he finds
puzzling die concentration of die ILC in die Liability Draft on environmental
damage. According to him, attaching liability sine delicto to die environment is
a misunderstanding on die part of die Commission, since rules of international
law concerning die environment are phrased in terms of a duty not to damage
the environment, from which it follows diat any resulting liability for damage
to die environment is liability ex delicto not sine delicto.5i
Illustrating dieir point by reference to die Trail Smelter arbitration, Brownlie,
Boyle and Akehurst all state diat while die operation of die plant was lawful,
pollution which was caused by diis operation was not and was dius subject to
die responsibility regime. On these bases, one must conclude diat die better view

54. 3 RIAA (1941) pp. 1911 and 1965. See also the Lake Lanoux arbitration {France v. Spain)
55 AJIL (1959) p. 156.
55. ICJ Rep. (1949) p. 22.
56. 11 ILM(1972)p. 1416.
57. A. Boyle, 'State Responsibility and International Liability for Injurious Consequences of
Acts Not Prohibited by International Law: A Necessary Distinction?', 39 ICLQ (1990) p. 22.
58. M. Akehurst, 'International Liability for Injurious Consequences Arising Out of Acts Not
Prohibited by International Law, 16 NYIL (1985) p. 3.
 International environmental law 207

is, firstly, that the original Liability Draft cannot be accepted as a codification
of customary law, and, secondly, that the conceptually separate regime
propounded in it does not, at least for the present, exist in international law.

5.3 Barboza's Draft

This conclusion would seem to have been, to some extent at least, accepted by
the second Special Rapporteur, Barboza, who introduced significant changes in
his Draft Articles. The most important of these, in relation to the conceptual basis
of the Draft, arises in the way the two Rapporteurs differ in their versions of the
legal consequences attached to a breach of the primary compound norm:
notification, consultation, prevention. Quentin-Baxter, despite convincing
jurisprudence contained in such classic cases as the Trail Smelter and Lake
Lanoux arbitrations, put forward the argument that a breach of this norm does
not necessarily result in State responsibility. Barboza, on the other hand, accepts
State responsibility for such a breach.
This new solution by Barboza has given rise to differing opinions in the
literature on the subject. Thus it is said that Barboza, by the introduction of
corresponding State responsibility for the breach of notification, negotiation and
prevention of harm, initiated State responsibility for lawful activities in two cases:
(1) when the State does not perform the primary obligation of prevention,
information and negotiation, and (2) when it does not perform the reparation duty
(Quentin-Baxter's Draft envisaged only the second possibility). This solution
seems to be 'illogical and incompatible with the original reasons for a separate
consideration of international liability.'59 The same author also maintains that
the Draft completely blurs the distinction between primary and secondary rules
by entailing both sets of rules leading to State responsibility.60 Another author,
while welcoming this stricter approach as a '. . . return to the more convincing
thesis and avoids implausible inflation of the significance of a global distinction
between primary and secondary obligations,"51 nevertheless considers that, in
assimilating liability to the Commission's own conception of responsibility, it
makes the title of the 'Liability Draft' misleading.62 Similar reasoning is to be
found by Pinto-Dobering, who says that, under the Liability Draft:

59. Horbach, loc. cit. n. 53, at p. 72.

60. Horbach emphasises that he uses the expression 'liability for wrongful act' as a 'secondary
rule', ibid.
61. Boyle, loc. cit. n. 57, p. 11.
62. Ibid.
208 M.A. Fitzmaurice

'[t]he regime of liability does not, therefore, exist in isolation from the regime of state
responsibility, for, while international liability signifies the duty to compensate loss
or injury in the absence of internationally wrongful conduct, as provided for by a
primary rule of obligation, failure to meet this obligation will constitute a breach of
an international obligation and give effect to the secondary rules of state responsibility
for internationally wrongful behaviour.'63

Another author considers it illogical and incompatible with the original reasons
for the separate consideration of international liability and responsibility.
According to this author, co-existing responsibility only adds to confusion and
the reasons for different treatment disappear.64
Another problem in accepting the separation of the topics which survives the
latest Draft arises in connection with the question of reparation for damage.
Contrary to the Draft on State Responsibility there is, under the proposed liability
regime, no absolute obligation to discontinue the harmful activity, to restore the
status quo ante or to compensate fully for harm. Barboza's Draft, it is true, is
firmer on the question of making reparation for appreciable harm.65 However,
he also based his reasoning on the 'balance of interest' principle, which sets a
ceiling on compensation, thus maintaining the distinction between lawful and
unlawful activities by limiting the consequences of the former.66 But this actually
hides still greater confusion. According to the theory of State responsibility for
an internationally wrongful act, a State is under a secondary obligation to pay
compensation.67 According to Barboza's Draft, a breach of the primary
compound rule in the liability regime causes, surprisingly, the same outcome,
so that the question arises whether and to what extent there exists a difference
between two types of compensation. Furthermore, if a State does not pay
compensation under the Liability Draft, it is also guilty of an internationally
wrongful act giving rise to responsibility. The question of liability for
environmental damage (wrongful act) (primary norm) changes into State
responsibility (secondary norm). The final result in both cases will be to pay
compensation. The only difference may be that the compensation for the lawful
act will be lower than that for the wrongful act.68

63. Pinto-Dobering, loc. cit. n. 27, at p. 94.

64. Horbach, loc. cit. n. 53, at p. 72.
65. Draft Arts. 8 and 9 (1989), UN Doc. A/CN.4/423.
66. See Brownlie who stresses that reparations in State responsibility are a flexible concept,
taking into account both issues of substantive law and reparations: I. Brownlie, State Responsibility,
Part I (1983) p. 234.
67. Chorzow Factory (Indemnity case) (1928) PCIJ Rep. (Series A. No. 17.) pp. 47-48.
68. ILC Yearbook (1983-11) pp. 212-213, paras. 40-42.
 International environmental law 209

Even those authors who, to some extent, have responded positively to

Barboza's innovations, also emphasise that they add a lack of clarity to an already
complicated topic.69 As Horbach has succinctly put it: 'Barboza seems to get
entangled in his own conceptual complexity.'70

5.4 Conclusion

In conclusion we may say that, even with the modifications now made to the
Liability Draft, a foundation in international law for the separation of the two
concepts of State liability and responsibility does not exist. Indeed, this conclusion
is even reinforced by the latest Draft.
However, even harsh critics of the ILC's work accept that it has positive
elements which include, in particular, the movement towards some level of
stricter liability in relation to environmental harm; the concept of liability
covering both the results of unforeseeable accident and of continuing polluting
activities; and the introduction of some concept of balance of interest in relation
to responsibility for environmental harm. For instance, Zemanek sees it as the
right approach to base States' obligations in the environmental field on strict
liability. Otherwise, if pollution occurs through accident, and if the unmodified
regime of State responsibility applies, the victim may well be left without a claim.
This author does not dwell, however, on the 'separateness' of the liability regime,
but rather on its practical consequences.71 The point made by other authors is
that these positive elements can as well, or better, be accommodated within the
basic concept of State responsibility, i.e., in terms of the definition of the
obligation or obligations which States owe to other States in respect of
environmentally harmful activities and of the consequences of breaching those
obligations. Thus, as Boyle says (having postulated the weakness of the
conceptual basis for separation of the responsibility and liability topics): 'it would
have been wiser to concentrate not on the topic as originally conceived, but to
approach it from the altogether more practical and less theoretically questionable
standpoint of codifying and developing a set of basic environmental obligations
for States.' It is in this spirit that we shall consider in section 6 what may now
be said to be the characteristics of such obligations in the present state of
development of international law, and what are the consequences of their breach.
Within this context, we will also consider the positive aspects of the ILC Liability
Draft to which we have referred above.

69. Boyle, loc. cit. n. 57, at p. 11.

70. Horbach, loc. cit. n. 53, at p. 72.
71. K. Zemanek, 'State Responsibility and Liability', in P.H. Winfied, et al., eds., En-
vironmental Protection and International Law (1991) p. 2.
210 M.A. Fitzmaurice

6. DUTIES OF STATES IN RELATION TO THE ENVIRONMENT

6.1 Introductory

It is the view of the majority of writers that 'there now exists in general
international law, real and binding primary obligations of states on the protection
of the environment, whose breach involves responsibility for a wrongful act.'72
The law in this area is still undoubtedly developing, but certain features of these
obligations can already be seen which are special to the environmental field, and
the need for which may be seen to arise from the special nature of environmental
problems.
Thus, in the first place, though the obligation not to cause harm to other States
falls firmly within the general field of State responsibility, there are a number
of respects in which there are, or are developing, special features relating to the
definitions of this obligation, and to the consequences of its breach, when the
harm involved is environmental. Secondly, it is now widely accepted that there
has evolved as a matter of customary law, an additional duty which may generally
be referred to as a duty to co-operate in relation to environmental matters,
though, as we shall see below, this duty is made up of a number of individual
elements.

6.2 Duty not to cause harm

6.2.1 General concept

The nature and origins of the obligation of States to refrain from causing harm
to other States has been stated in section 3.2.3 above. It is supported by two
separate, though in their result similar, principles, namely, the principle 'sic utero
tuo ut alienum non laedas', and the concept of neighbourship law (droit
international de voisinage), which comprises an obligation of States to abstain
from conduct causing physical harm to other States.73 Put another way, it has
been said to embody the rule that neighbouring States have to limit enjoyment
of their territorial sovereignty to a certain extent for the benefit of other States,
and to tolerate a certain degree of nuisance74 or that no substantial damage
should be inflicted by one State on another.75

72. R.P. Mazzeschi, 'Forms of International Responsibility for Environmental Harm', in F.

Francioni andT. Scovazzi, eds., International ResponsibilityforEnvironmental Harm (1991)p. 35.
73. M. Fauchille, Traite de droit international public, 8th edn. (1925) p. 2.
74. J.G. Lammers, Pollution of International Watercourses (1984) p. 568.
75. A. Verdross. Volkerrecht, 5th edn. (1964) pp. 293-294.
 International environmental law 211

This principle was also accepted as the basis for establishing the responsibility
of States in relation to transboundary damage in the Stockholm Declaration,
which by the ILA in the Helsinki Rules and in their 'Rules on International Law
Applicable to Transfrontier Pollution' was adopted at the 1982 meeting in
Montreal. With respect to the special field of international watercourses, the same
principle was incorporated by the ILC in Article 7 of the Watercourse Draft
which states that 'watercourse states shall utilise an international watercourse in
such a way as not to cause appreciable harm to other watercourse states.' A duty
not to cause environmental harm of various kinds has also been a feature of a
number of conventional regimes.

6.2.2 Standard of care

It is generally accepted that, both in customary international law, and in State

practice, the obligation of States not to cause environmental harm to other States
is one of due diligence, rather than strict liability.76 It is one of the features of
the Liability Draft, on the other hand, that it proposes a regime involving, to a
large extent, strict liability. Whilst, on the bases we have outlined above, the
ILC's perception that such liability required a conceptually separate regime to
that of State responsibility may be seen as misconceived, even critics of the
Liability Draft concede that unfettered reliance on the due diligence standard may
throw too much of the burden of environmental harm on to the recipient State,
and that in some circumstances, a regime of strict liability may be appropriate
in the environmental field.77 This type of liability sine delicto was first envisaged
by the eminent scholar W. Jenks who pointed out that there should be State
liability of some kind for the potentially catastrophic damage caused by the State's
'ultra hazardous' activities.78 The idea underlying this thesis was to establish
a system of liability without fault for such activities in general international law,
outside conventional arrangements. In the Liability Draft, the ILC attempts to
provide this. This principle presupposes, of course, the abandoning of the due
diligence or due care obligation and bases the liability on cause. In order to
balance, to some extent, the potential harshness of such a regime, the Draft
introduces the concept of 'thresholds'. Thus, the risk must be 'appreciable' and
the injury 'appreciably detrimental'. The Rapporteur also further defines the
circumstances involving his concept of strict liability as including 'the low
probability of very considerable (disastrous) transboundary injury and the high

76. Boyle, loc. cit. n 57, at pp. 15-16; Handl, loc. cit. n. 30, at p. 541.
77. Boyle, loc. cit. n. 57, at p. 23.
78. W. Jenks, Liability for Ultra Hazardous Activities in International Law, 17 Hague Recueil
(1966) p. 99.
212 M.A. Fitzmaurice

probability of minor appreciable injury' arising from the use of things whose
physical properties, location or use make injury likely.79

6.2.3 Knowledge

The obligation of States under customary law, as illustrated in the Corfu Channel
case, is one not 'knowingly' to cause damage; and this requirement of knowledge
is also incorporated into the liability regime. Thus Article 3 of the Liability Draft
reads as follows: '[t]he source State shall have the obligations imposed on it by
the present articles, provided that it knew or had means of knowing that an
activity involving risk was being, or about to be, carried out in areas under its
jurisdiction or control.' However, the requirement of knowledge may be seen
as somewhat weaker in the liability regime in view of the terms of the second
paragraph of Article 3 which reads: 'Unless there is evidence to the contrary,
it shall be presumed that the State of origin has the knowledge or means of
knowing referred to in the preceding paragraph.'

6.3 Duty to co-operate

6.3.1 In general

The concept of a duty upon States to co-operate finds support in various

international agreements, decisions of international courts and tribunals, and
resolutions of international organisations. In addition, the judgments of the ICJ
in the North Sea Continental Shelf and the Fisheries cases stated that there was
a specific obligation to consult and negotiate in circumstances involving the
appointment of natural resources.80 The development of this concept has also
been particularly important in the field of international regulation of
transboundary pollution. The general principle was formulated in Principle 24
of the Stockholm Declaration, which provides:

'International matters concerning the protection and improvement of the environment

should be handled in a co-operative spirit by all countries, big or small, on an equal
footing. Co-operation through multilateral or bilateral arrangements or other
appropriate means is essential to effectively control, prevent, reduce and eliminate

79. UN Doc. A/CN 4/423 (1989) Art. 2.

80. ICJ Rep. (1969) paras. 85, 87; ICJ Rep. (1974) paras. 71, 78.
 International environmental law 213

adverse environmental effects resulting from activities conducted in all spheres, in such
a way that due account is taken of the sovereignty and interests of all states. '81

The principle is also incorporated in the ILC Watercourse Draft, which states
that:

'Watercourse states shall cooperate on the basis of sovereign equality, territorial

integrity and mutual benefit in order to attain optimum utilisation and adequate
protection of an international watercourse.'82

A number of other specific duties of States are referred to in the Watercourse

Draft which may be said to fall within the general duty to cooperate. They
include a duty of notification, a general duty to exchange information, and a
requirement for consultations and negotiations when one riparian State objects
to measures being planned by another. These specific instances of cooperation
do not find parallels in the Stockholm Declaration; but they are similar in many
respects to the duties specified in the ILC Liability Draft (see below). One may
also mention, as part of the duty to cooperate, a duty to enter, where appropriate,
into bilateral or multilateral agreements (expressly mentioned in Principle 24 of
the Stockholm Declaration), and a duty of non-discrimination in the courts of
a State against nationals of other States, a matter which is also expressly covered
in the latest Liability Draft.

6.3.2 Duty to co-operate in the liability draft

The duty of co-operation is set out in the Liability Draft's Article 7 which
provides that States are to co-operate in good faith among themselves, and are
to request the assistance of any international organisations that might be able to
help them, in trying to prevent any activities which risk causing transboundary
harm; if such harm occurs, they are to co-operate in minimising its effects.

81. Many international organs or organisations adopted similar principles in their resolutions
or recommendations. To name a few: the United Nations Environment Programme (UNEP) in its
1978 Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the
Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States, in
17 ILM (1978) p. 1097; the Organisation for Economic Co-operation and Development contributed
to the development of the above-mentioned and other principles relevant to transfrontier pollution
in its 1974 Recommendation on Principles concerning Transfrontier Pollution (Doc. (74) 224), in
14 ILM (1975) p. 242 and subsequent recommendations.
82. Art. 8 of the Draft Articles on the Law of Non-Navigational Uses of International
Watercourses, Draft Report of the ILC, UN GAOR, 43rd Session, UN Doc. A/CN L.463/Add.4
(1993), hereinafter referred to as 'ILC Watercourse Draft".
214 M.A. Fitzmaurice

Chapter III of the Liability Draft specifies a number of specific instances of such
co-operation, in particular the duties of notification and to exchange information
(Article 11) and a duty to consult (Article 14). It will be seen that these duties
reflect Article 24 of the Stockholm Declaration and also to a large extent mirror
the duties elaborated in the ILC Watercourse Draft.
The Liability Draft, also, in Article 10, expressly invokes the principle of non-
discrimination and goes on to provide in Chapter V a number of specific
provisions in relation to civil liability. It should also be noted that, in Article 17,
a series of specific factors are set out which may be taken into account 'in order
to achieve an equitable balance of interests among the States concerned in relation
to' activities which risk causing transboundary harm.

6.4 Consequences of breach

6.4.1 The general rule in relation to State responsibility

The Draft Articles on State Responsibility specify the following consequences

as flowing from an internationally wrongful act: restoration of the status quo
ante, discontinuation of the act, and a guarantee that such wrongful act will not
be repeated in the future.83 The injured State may in addition enjoy rights of
reprisal and suspension to erase in some way the consequences of the wrongful
act.84

6.4.2 Liability Draft — balance of interests

The main feature of the regime proposed by Quentin-Baxter was to provide room
for a degree of negotiability as regards the obligation to repair damage in cases
where the States did not specify a specific regime before the damage occurred.85
The pivotal feature of this regime was the so-called balance of interest principle
between the parties concerned. This balance of interest principle was perhaps
derived primarily from Principle 21 of the Stockholm Declaration of 1972.86
This principle may be seen as a parallel to the principle of 'equitable
participation' in the field of shared resources and in particular of international

83. Draft Art. 6 of the Draft Rules on State Responsibility, ILC Yearbook (1984-11) p. 2.
84. UN Doc. A. CN/4/405 (1987) p. 17, para. 55.
85. Gehring and Jachtenfuchs, loc. cit. n. 35, at p. 95.
86. States have, in accordance with the Charter of the UN and principles of international law,
the sovereign right to exploit their own resources, pursuant to their own environmental policies,
and the responsibility to ensure that activities within their jurisdiction or control do not cause damage
to the environment of other States or to areas beyond the limits of national jurisdiction.
 International environmental law 215

watercourses. This was the most important principle of the Helsinki Rules and
is also central to the ILC's work in relation to international watercourses. Though
not easy to define, it may generally be said to mean that a watercourse State is
entitled to use and benefit from the watercourse in an equitable manner, in order
to achieve the maximum benefit to each State from the utilisation with the
minimum detriment to another watercourse State.87
While the concept is well established in relation to shared resources, it is more
doubtful where it stands in relation to the causation of environmental harm. As
Boyle says: 'while a balancing of interests in environmental disputes is probably
a necessary and inevitable condition of progress in the regulation of the global
environment, this is also an issue which needs a new conceptual framework for
the subject.'88 To some extent, this may be achieved by developing the concept
of threshold of harm. Boyle also emphasises the importance in this respect of
developing appropriate remedies for breach of environmental obligations, in
particular the role of injunctions and declarations.89
Another example of a special approach to the settlement of environmental
disputes may be found in the Hague Declaration of 1989 which calls for a 'new
and more effective decision-making and enforcement mechanism'. The
establishment of such a mechanism would entail four principles: research,
assistance, enforcement and negotiation.90 The substance of solving an
environmental dispute is to find a balance between the sovereign rights of States,
the one harmed by polluting activities and the other exercising its sovereign rights
in its territory through such activities. This became particularly evident in the
Nuclear Tests case in which Australia pleaded that France by polluting its
territory, breached its sovereignty.91 The ILC Liability Draft seems to follow
the general procedural scheme and (as stated above) sets out a procedure for early
notification, negotiations and consultations in respect of harmful activities —
based on negotiations through which the 'balance of interest' principle is
implemented between the source State and the affected State.

6.4.3 Countermeasures

Countermeasures (a term which, in recent years, has replaced the term 'self-help')
can take the form of reciprocal actions, of a lawful act in response to an unlawful

87. E. Lipper, 'EquitableUtilisation' in A.H. Garretson, R.D. Haytonand C.J. Olmstead, eds.,
The Law of International Drainage Basins (1967) pp. 15-16.
88. Boyle, loc. cit. n. 57, at p. 23.
89. Ibid., p. 24.
90. 28 ILM (1989) p. 1308.
91. Nuclear Test case (1973) Pleadings I, p. 14.
216 M.A. Fitzmaurice

one and of an unlawful act which is rendered lawful by being a response to the
prior unlawful act ('reprisal'). The object of the reprisal must be to 'effect
reparation from the offending State for the offense or a return to legality by the
avoidance of further offenses.' Another condition of lawfulness of reprisals is
that they should be preceded by 'an unsatisfied demand for reparation'.92 The
latter element is, however, controversial and not uniformly supported either in
the practice of States or in doctrine.93 The reprisals must be proportional to the
prior illegal act in terms of damage.94
The ILC's Responsibility Draft, Part I Article 30 states that: 'The
wrongfulness of an act of a State not in conformity with an obligation of that
State towards another State is precluded if the act constitutes a measure legitimate
under international law against that other State, in consequence of an
internationally wrongful act of that other State.'95 For the purpose of Article
30 'countermeasures' also include breaches of treaty obligations justified in
accordance with Article 60 of the Vienna Convention and measures taken by
States in pursuance of decisions and recommendations of international
organisations.
It is said that countermeasures are rather dangerous as a tool in environmental
international law. It is difficult to be precise as to who has the right to take
countermeasures, when they are appropriate, or how they should be used.96
According to O'Connell the most common, yet in the field of the environment
sometimes inappropriate, form of reprisals are reciprocal countermeasures, such
as those envisaged in, e.g., Article 60 of the Vienna Convention on the Law of
Treaties. As an example one may postulate the suspension of an obligation not
to pollute in response to a breach of treaty obligation by another State, a solution
which seems highly unlikely.
Retorsion and reprisal are more appropriate means. Retorsion may take the
form, for instance, of suspending loan conditions on environmental protection
(e.g., within the framework of the World Bank.). The question of the application
of reprisals, due to its controversial character, is of course much more doubtful.
In case of reprisals a State must have a strong case — a treaty breach or actual

92. Naulilaa case, Portugal v. Germany, 2 RIAA (1928) p. 1012.

93. P. Malanczuk, 'Countermeasures and Self-defence as Circumstances Precluding Wrong-
fulness in the International Law Committee', in M. Spinedi and B. Simma, eds., United Nations
Codification on State Responsibility (1987) p. 214.
94. Air Services Agreement case, 18 RIAA p. 416, para. 83: '[i]t is generally accepted that
all counter-measures must, in the first instance, have some degree of equivalence with the alleged
breach; this is a well-known rule . . . "
95. ILC Yearbook (1980-II) p. 33.
96. M.E. O'Connell, 'Enforcing the New International Law of the Environment', 35 GYIL
(1992) p. 293.
 International environmental law 217

physical damage - such as in the Trail Smelter case. Environmental law, being
imprecise and developing, is not an easy field of international law to apply
reprisals and there is no certainty as to what the law in this respect is.
There is, of course, one already famous example of the application of
countermeasures in environmental law: the Yellow Fin Tuna case. In this case,
the USA used countermeasures against Mexico to support the conservation of
dolphins - prohibiting all imports of tuna from Mexico and intermediary States.
The countermeasures were aimed against the use of drift-nets by Mexican
fishermen which led to the slaughter of dolphins. The embargo on Mexican
products resulted in the alleged violation of GATT rules by the US Government
and a subsequent case before the GATT Panel which ruled against the US
measures. These measures were justified by the US Government as being taken
under an exception in the GATT rules for environmental protection. Thus, the
US Government did not plead reprisals against Mexico, but founded its ruling
on the provision of the GATT treaty. The article in question cited by the US is
XX(b) - Protection of Animal Life.97 This case raises several questions, for
example the fairness of countermeasures and the integrity of treaty regimes, i.e.,
unilateral actions, such as those taken by the US, to undermine multilateral treaty
regimes.
Another possibility for the application of countermeasures may perhaps be
found in the context of negotiations, i.e., to enforce the obligation to negotiate.98
This assumption is not, however, supported by the ILC's Draft which stated:
'[fjailure to take any step required by the rules contained in this section [context
of negotiations] shall not in itself give rise to any right of action . . . ' "
Reprisals, being an unlawful answer to a wrongful act, rendered lawful by
the actions of the wrong-doing State, could, apparently, not be used in the
framework of the State liability regime as postulated by the Liability Draft, which
is based on the notion of a permissible act. As referred to above, the better view
is that the conceptual basis of this regime is actually misconceived. But were it
to survive, it would seem that the only possible countermeasures within it would
be reciprocal countermeasures and retorsion. Overall, though the position is by
no means clear, there would seem to be grounds for doubting whether the

97. This article states 'Subjecttotherequirementthatsuchmeasuresarenotapplied inamanner

which would constitute a means of arbitrary or unjustified discrimination between countries where
the same conditions prevail, or a disguised restriction on environmental trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement by any contracting party of
measures . . . (b) necessary to protect human, animal or plant life or health.'
98. O'Connell, loc. cit. n. 96, at p. 323 et seq.
99. UN Doc. A/CN.4/360 (23 June 1982) p. 63.
218 M.A. Fitzmaurice

doctrine of countermeasures should, or does, apply without modification in

relation to environmental damage.

6.5 Liability for environmental harm in conventional regimes

In general, treaties in the environmental field have not contained firm or precise
provisions on the responsibility of their parties for causing damage. For example,
the 1979 Geneva Convention on Long-Range Transboundary Air Pollution in
relation to possible damage from long-range transboundary pollution (Article 8)
contains a footnote expressly stating that the Convention 'does not contain a rule
on liability as to damage.' The same applies to the Vienna Convention on the
Protection of the Ozone Layer and the Basel Convention on the Transboundary
Movements of Hazardous Wastes. Regional conventions also fit this general
pattern (for instance the Convention on the Protection of the Marine Environment
of the Baltic Sea Area (1992), 'The Helsinki Convention') and very often only
contain a general provision such as that in the Helsinki Convention which states
in Article 25 that: '[t]he Contracting Parties undertake jointly to develop and
accept rules concerning responsibility for damage resulting from acts or omissions
in contravention of this Convention, including, inter alia, limits of responsibility,
criteria and procedures for the determination of liability and available remedies.'
The vagueness and uncertainty of such commitments breeds doubts as to their
binding force and also as to the possibility of enforcing international responsibility
for their breach. 10°
Further, the language of the Conventions (with a limited number of specific
exceptions) clearly indicates that they do not in general establish a strict
obligation not to pollute as an obligation of result, but only an obligation to
'endeavour' in accordance with the due diligence standard to prevent, control,
and reduce pollution.101 The much cited Space Liability Convention102 is
supposed to provide evidence that States have undertaken to accept a standard
of strict liability for transboundary environmental harm.103 This view, however,
is not uniformly accepted. Some authors assert that since the first of these
Conventions was negotiated simultaneously with the Outer Space Treaty, it cannot
be considered as an independent liability regime and that the two superpowers
accepted the principle of unlimited liability only in order not to endanger a

100. Mazzeschi, loc. cit. n. 72, at p. 18.

101. Ibid., p. 29.
102. Convention on International Liability for Damage Caused by Space Objects 1972,10ILM
(1971) p. 965.
103. Handl, loc. cit. n. 30, at p. 529.
 International environmental law 219

political agreement,104 so that the much praised principle of strict liability as

contained in this convention has to be seen as a result not of economic or
environmental factors, but of a global political arrangement.105

6.6 New developments in States' obligations with regard to environmental

harm — The precautionary principle

As long ago as 1966, it was said that 'a governing principle ought to be that
nothing in man's environment should be subject to the risk of large-scale change
until the natural phenomena which might be changed or obscured, have been
studied, and their nature and functions established with reasonable certainty. To
act counter to this principle is recklessness of a cataclysmic order . . . ' 106 Much
more recently, another author pointed out that there is, as part of the
environmental crisis, a risk of 'serious irreversible or cumulative effects, of an
environmental system overload, producing cascading effects throughout ecological
sub-systems. Thus international environmental law must come to reflect a much
greater emphasis on precautionary policies." 07
As a legal principle, the concept of a precautionary element in States'
obligations in respect of environmental harm has had wide acceptance in a
number of declarations. As an instance of these, one may cite the Bergen
Ministerial Declaration108 which states:

'Environmental measures must anticipate, prevent and attack the causes of

environmental degradation. Where there are threats of serious or irreversible damage,
lack of full scientific certainty should not be used as a reason for postponing measures
to prevent environmental degradation.'

While a number of authors take the view that this embodies an important new
principle in international environmental law,109 it is submitted that the better
view is that, at least as stated in the Bergen Ministerial Declaration, and other
similar formulations, it should be seen rather as no more than an increasing
emphasis on the preventative aspect of the duty of States in relation to

104. Gehring and Jachtenfuchs, loc. cit. n. 35, at p. 102.

105. Ibid., p. 103.
106. Sir Robert Jennings in Hague Recueil (1967-11), p. 513.
107. Handl, loc. cit. n. 3, at p. 4.
108. 20 EPL (1990) p. 100.
109. D. Freestone, "The Precautionary Principle', in Churchill and Freestone, eds., op. cit.
n. 48, at p. 21; J. Cameron and J. Abouchar, "The Precautionary Principle: A Fundamental Principle
of Law and Policy for the Protection of the Global Environment', 14 Boston College International
Comparative Law Review (1991) no. 1.
220 M.A. Fitzmaurice

environmental harm which has for some time been well established.110 Even
in the sense of the declaration quoted above, however, it is not certain to what
extent the principle can yet be said to be a principle of international law.1"
An even stronger formulation of the principle would actually reverse the
burden of proof, in the sense of restricting any actions by States unless it could
be shown that they would have no adverse effect on the environment. Though
such a principle has been adopted in certain very specific fields under treaties,
there is plainly no such general principle in international law at present. But this
formulation deserves mention as a particular example of ways in which the
advocacy of extreme measures in the protection of the environment may lead to
attempts to limit State sovereignty (see section 7 below).

6.7 Conclusions

While the conceptual basis of States' obligations in relation to environmental

harm are within the general international law principles of State responsibility,
the actual content of the obligations are special to the environmental field, and
a number of modifications to general principles apply to them, or are at least in
the course of development. These include, for instance, the introduction of a
stricter standard than the 'due diligence' standard in some circumstances, the
concept of thresholds of responsibility and damage, and the possibilities of
developing the preventive aspects of the law through duties, such as the duty of
providing information concerning potentially harmful activities, within the general
obligation of co-operation.

7. LATEST TRENDS AND DEVELOPMENTS IN INTERNATIONAL

ENVIRONMENTAL LAW

7.1 The development of structures aimed at global administration

It has been a characteristic of traditional international law that it has been

concerned principally with the regulation of the competing interest of
independant, equal sovereign States, either directly with each other, or in terms
of the co-ordination of their individual activities in areas outside State
jurisdiction. This has been reflected in the development of environmental law,

110. A. Nollkaemper, "The Precautionary Principle in International Environmental Law: What's

New Under the Sun', 22 Marine Pollution Bulletin (1991) No. 3, pp. 107-110; and see Birnie and
Boyle, op. cit. n. 4, at pp. 95-98.
111. Birnie and Boyle, op. cit. n. 4, at p. 98.
 International environmental law 221

which has, until rather recently, been principally concerned with 'transfrontier
damage to components of the environemnt; exploitation and protection of those
natural resources which are commonly shared by several states; the use and
protection of areas beyond national jurisdiction such as high seas and outer
space." 12 But international environmental law now has to face a wider problem,
namely, environmental problems of global relevance, and this calls for a different
approach in the development of obligations and treaties. Thus, it has been said
that:

'the difference between treaties for the protection of areas beyond national sovereignty
on the one hand and of treaties dealing with global environmental problems on the
other hand, is twofold: the latter oblige States to become active in their own territories
which means a substantial intervention into State sovereignty, whereas the former
require acts or omissions outside of the State territory and thus infringe to a lesser
degree upon sovereignty.'"3

It is inherent in the traditional concept that the obligations of one State are more
or less matched by the rights of another (sometimes referred to as the 'zero sum'
concept). This is no longer the case in relation to the obligations which it is
perceived need to be imposed on States to meet the challenge of the environment.
What is needed is obligations which States in general owe to die world
community, or to the environment itself. And it has been said:

'Within treaties which aim to resolve global environmental problems and impose
consequential obligations upon states in the interest of the state community, no direct
benefit or competence exists which corresponds with these obligations. To this point,
the usual interdependence between rights and duties, characteristic for international
law agreements and for the mechanisms guaranteeing their observance does not exits.'

Furthermore, these objectives relate to joint management and protection by the

world community, rather than to the regulation and co-ordination of the actions
of individual States. It is in an attempt to provide a framework to meet these
needs that the new treaty structures referred to in section 3 above are being
developed.

112. R. Wolfrum, 'Purposes and Principles of International Environmental Law', 33 GYIL

(1990) p. 308.
113. Ibid., p. 327.
222 M.A. Fitzmaurice

7.2 The individual in international environmental law

As referred to in section 1, an important special characteristic of the environment

is the extent to which, by comparison with all other fields covered by
international law with the exception of human rights itself, the individual has
become an important direct player. The importance of the individual, however,
is not reflected in any coherent overall doctrine, or even line of development,
in international environmental law, but, rather, is represented in a number of
largely unconnected lines of development, some covering essentially the rights
of individuals, some their obligations, and some bringing both of these together.
In relation to both the rights and the obligations of individuals, there is an
issue (unresolved) as to whether they are best covered directly at the level of
international law or, alternatively, at the national level, with the international
law interest existing by imposing obligations on States with regard to their own
national regimes (private law solutions). In relation to the rights of individuals,
this issue involves the relative merits of the approach giving direct international
recognition to the human right to a decent environment, on the one hand, and,
on the other, of the approach which emphasises procedural rights in relation to
the environment, e.g., the right to participate, at the national level, in decision
making concerning the environment and the right of equal access in national
courts for non-nationals and non-discrimination. In terms of obligations, there
are, on the one hand, moves to make the causing of serious deliberate pollution
by individuals an international crime, and, on the other hand, we have the
development of the concept of civil liability regimes, under which States are
obliged to enact adequate provisions at the national level, to make individuals
liable for causing pollution.
The most fundamental of the doctrines according direct rights in relation to
the individual is that which would maintain the existence of a human right to a
decent environment. Despite its incorporation in, for instance, Principle 1 of the
Stockholm Declaration, and though in theory such rights relating to the
environment might fall within Higgins' definition of human rights as 'demands
of a particularly high intensity made by individuals vis-a-vis their govern-
ments," 14 the more accepted view seems to be clearly that no such right
presently forms part of international law115 and it is notable that a restatement
of the principle is absent from the Rio Declaration.

114. R. Higgins, Problems and Process ~ International Law and How We Use It (1994) (being
the revised text of the Hague Academy General Course in International Law delivered by Prof.
Higgins in 1990) p. 105.
115. Birnie and Boyle, op. cit. n. 4, at p. 191;R.D. Munroand J.G. Lammers, Environmental
Protection and Sustainable Development (1986) p. 40.
 International environmental law 223

One must, at this stage, mention in passing (the scope of this article does not
allow for more) the concept of 'intergenerational equity' which would extend the
concept of an individual human right in favour of members of the present
generation to a collective human right in favour of generations yet to come. There
is no doubt that the concept of the protection of the environment for the benefit
of future generations as a policy objective underlies much of the latest thinking
in the field, and plainly underlies the concept of 'sustainable development'. But
it has to be said that of all the theoretical, even philosophical, bases that have
been propounded to found an obligation towards future generations, as it has been
said of the Brown Weiss theory of intergenerational equity, that 'these
prescriptions for the extension of [international environmental law] to future
generations are wildly unrealistic."16 As the author of these remarks has said:
'It is already an intractable task to reconcile the environmental interests of those
here and now in a weak international legal and political system, without also
embracing the interests of the future."17
In the end, it is at least arguable that, in many respects, the interests of the
individual concerning the environment are best protected on the basis of the
private law solutions.

7.3 Development of the concepts of offence against the world order

It was, furthermore, inherent in the traditional concept of international legal

relations that the main, indeed to a large extent only, enforcement mechanism
was through actions by individual States against other individual States, within
which system, the emphasis with respect to remedies was overwhelmingly
compensatory. We have already referred above to the inadequacy of
compensatory remedies in relation to environmental damage and to the need for
the development of preventive remedies. But there are more fundamental
problems with traditional enforcement methods. While these are suitable in
relation to duties owed by one State to another, 'where the duty is owed not so
much to particular States as to the communtiy in general, it is not always
appropriate that the duty should be enforceable by, so to speak, a private law
action in delict brought by one State against another."18 'In general, important
antisocial conduct by governments cannot be effectively or appropriately
controlled by casual private law actions."19

116. Boyle, reviewing the book In Fairness to Future Generations (1989) in 40 ICLQ (1991)
230.
117. Idem.
118. Jennings, loc. cit. n. 106, at p. 512.
119. Idem.
224 M.A. Fitzmaurice

A number of possible solutions to this problem are in the course of

development, or at least are being advocated, namely:
— the development of the concept of extension of standing to bring actions in
relation to certain breaches of obligation to all States (referred to as
obligations lerga omnes' by the ICJ in the Barcelona Traction case120),
which might bring a partial solution to the problem, though which, it must
be said, has not as yet been effectively extended to cover obligations in
relation to the environment;
— the development of concepts of international criminal responsibility with
respect to causing pollution, for instance by the ILC in Article 19 of the
Responsibility Draft;
— the development of so-called 'non-compliance' regimes such as the dispute
settlement method in environmental treaty regimes, of which the most notable
to date is that under the Montreal Protocol.

7.4 Broadening the scope of international environmental law - The

concept of sustainable development

It has been observed above that one of the features of the environment as a
subject-matter of international law has been the growing perception not only of
the global scope of the problem, but also of its scope in terms of the areas of
human activity that are relevant to its protection. This perception has resulted
in the acceptance of the proposition that the problems of environmental protection
cannot be addressed in isolation from economic matters, in particular in relation
to poverty, development and trade. The most important inter-relationship between
these subject-matters arises from the fact that, as perceived in the light of modern
understanding of the global ecosystem, environmental protection is incompatible
not only with continued unrestricted economic activities in developed countries,
but also with unrestricted development of the developing countries. On the other
hand, this realisation has come at a time when the developing countries have been
increasingly asserting their right to development, even, in an extreme view, as
a kind of collective human right. Both the existence and the complexity of the
relationship between environmental protection and development was recognised
in and forms the subject-matter of a number of the Principles of the Stockholm
Declaration. Thus, against the Principles which set out the general obligations
to preserve the environment, are those which recognise the necessity for
development, the impact of environmental protection on it, and the need to
provide assistance to developing countries to enable them to meet both their

120. ICJ Rep. (1970) p. 3.

 International environmental law 225

obligations to the environment and their rights to development (see e.g.,

Principles 8, 9 and 11).
The conceptual summation of recognition of this relationship has been
development of the concept of 'sustainable development', which has been defined
as development which meets the needs of the present without compromising the
ability of future generations to meet their own needs; a concept of 'living off
nature's "income", rather than squandering its "capital"."21 The attractions
of the concept as a policy objective, in particular as set against the 'no growth'
aspects of the 'precautionary principle' (at least in its more extreme forms) are
obvious. In one view, 'not surprisingly, it has thus turned out to be a notion
around which legally significant expectations regarding environmental conduct
have begun to crystalise,' and is even a concept which might turn into a
mandatory standard of international legal evaluation.122 As a result, the concept
has found its way into a substantial number of environmental instruments of
varying degrees of 'hardness', most notably, and recently, in the Rio Declaration
and other instruments which were signed at the UNCED.
However, notwithstanding the attractions of the concept, and its widespread
appearance in international instruments, there are formidable, possibly
insurmountable, problems in its acceptance as a meaningful basis for a norm of
international law, or even as a provision of international treaties.
One of these problems arises from the inherent contradiction between the
objectives of development and those of environmental protection. 'Sustainable
development' as an international policy or legal concept, clearly implies some
measure of international accountability; yet, as generally endorsed, it is also
accompanied by an express disclaimer of any intended encroachment upon State
sovereignty.123 Thus, even in the Rio Declaration, Principle 2 contains a classic
restatement of the sovereign right of States to exploit their own resources.
The second objection to the concept arises simply from its generality,
vagueness and ambiguity. While there is now a large degree of consensus on the
utility of the concept of sustainable development as such, it has been said: 'from
a theoretical point of view, the concept of sustainable development suffers from
some serious flaws."24 Thus it has been said that, on the one hand, the concept
is 'inoperable' due to its inherent vagueness, whilst, on the other, 'emergence

121. Handl, loc. cit. n. 3, at p. 24.

122. Ibid., p. 33.
123. Ibid., pp. 25-26.
124. P. Malanczuk,'"Sustainable Development": International Law-Making, Financial and
Institutional Aspects - Some Critical Thoughts in the Light of the Results of the Rio Conference,
in K. Ginther, E. Denters, P. de Waart, eds., Sustainable Development and Good Governance
(forthcoming).
226 M.A. Fitzmaurice

of a convenient definition which was found agreeable by all players would be

an indication that the definition was inadequate, as the concept is too fundamental
to be captured so easily . . .'125
As well as its inclusion in 'soft' instruments, reference to the concept of
'sustainable development' now appears also in provisions of concluded treaties
(as do other fashionable concepts such as the precautionary principle), in
particular the Climate Change Convention signed at the UNCED. But these
treaties do not contain provisions which attempt to reconcile the inherent conflicts
in the concept referred to above, nor do they throw light on its meaning. It is
difficult to see how, in the absence of the substantial development of explanatory
provisions to be added to such treaties in the future, these concepts can have any
legal or practical effect.
As stated previously, the environment is a field in which the clash of opposing
equal sovereignties has become most evident and most intractable. This results
in challenges to the adequacy of traditional concepts of sources of international
law, and, indeed, of its very basis.
As concluded in section 2.2 above there is, for instance, the need to find a
more direct conceptual basis to circumscribe State sovereignty. In the absence,
and indeed possibly the impossibility of achieving, such a satisfactory new
conceptual basis, it is likely that, as it has been aptly put, 'the more productive
approach to the development of international environmental law remains the
negotiation of specific rules and principles governing specific problems."26

125. S.R. Dovers and J.W. Handmer, 'Uncertainty, Sustainability and Change', 4 Global
Environmental Change (1992) p. 264.
126. Boyle, loc. cit. n. 116, at p. 231.