Environmental Engineering Reference
In-Depth Information
This chapter discusses the legal responsibility that results when environ-
mental damage is caused. The fi rst question to consider is whether inter-
national environmental law has succeeded in developing rules and
principles that are applicable to all kinds of environmental damage. The
second point to note is that the general international law principle of
no-harm continues to be the essential norm according to which inter-state
environmental damage is assessed. The next factor is strict liability. Many
human functions are intrinsically hazardous: however carefully a nuclear
power plant, for instance, is managed, there will always be the risk of cata-
strophic harm. States have negotiated strict-liability agreements to cover
operations such as these; the originator of any damage is generally liable
irrespective of how carefully the plant is operated. Finally, we take a look
at how the liability rules in international environmental law have devel-
oped in recent years. We will see that discussion has at least started as to
the legal responsibility of states for the environmental damage caused by
climate change.
Difficulties in enacting general liability rules
Assigning responsibility for environmental damage is problematic. The
damage caused by climate change is not easily proven to be attributable to
a single actor, state or private enterprise. When diffuse pollution is gener-
ated by multiple actors - for example, many small companies or millions of
cars - it is diffi cult to identify a guilty party to compensate for the damage
incurred by a state or its citizens. Major state contaminators and contributors
to climate change can, of course, be identifi ed, such as the USA or China,
but they are still just two among many, so it would be diffi cult to hold only
them responsible.
Establishing legal responsibility is challenging enough even in relatively
straightforward cases, such as when multiple people in an area might claim to
be suffering from the pollution emitted by a single polluting factory. The vari-
ous types of pollution carried by air or water can be diffi cult to detect,
although environmental sciences and monitoring programmes have facilitated
the monitoring of the stages of contamination. How can one prove that a
particular contaminant has emanated from a particular factory, given that the
environmental problems we are facing are so many and so varied? How can a
petitioner prove the causal connection between a factory and the injury they
are complaining of? Generally, it is the petitioner that bears the burden of
proof: they have to demonstrate that this is likely to be the case. Advances in
natural science have helped us to appreciate that science can seldom prove
anything with absolute certainty, but nonetheless, the courts require a rela-
tively high certainty as to the causal connection.
In the 1980s and the 1990s, the UN International Law Commission's State
Responsibility Project considered whether the widespread pollution of seas
 
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