Legal responsibility for environmental damage - Introduction to International Environmental Law - page 168

and the atmosphere by a state could be deemed state crime, but the project
ended up abandoning the idea of state criminal responsibility. 1 The concept of
state crime is disputed in international law, while the criminal liability of indi-
viduals for breaches of international law has advanced enormously.
Through treaties, states have resolved legal responsibility mainly in cases of
intrinsically hazardous operations, for example nuclear power plants. It has
turned out to be much more diffi cult to make rules for industries that are
inherently polluting, slowly and cumulatively. An effort has been made to
tailor the rules to encompass all environmentally hazardous projects, but this
has also been problematic.
The law of state responsibility in cases of environmental damage has devel-
oped very little in international environmental law. The Stockholm 1972
Conference declaration initially encouraged states to develop liability rules for
environmental damage, and this was reiterated by the Rio Conference
20 years later. The International Law Commission (ILC) had started work as
early as 1978 with the objective to formulate a distinct set of liability rules
applicable to environmental damage.
This project was kept apart from the Commission's long-term objectives to
codify the law of state responsibility in general international law, which were
to apply to any violations of international law. In retrospect, this has not
proven an effective strategy. After many stages, the special project for environ-
mental liability was split into two parts. Paradoxically, the fi rst stage focused
on rules to prevent transboundary environmental damage. These 'preventative
rules' of 1999 are now used by international courts, and their status is
quite different from that of the rules that were the initial objective: the
'liability rules', which facilitate access to compensation for victims of
environmental damage. These draft environmental liability rules were compiled
in 2006. They were meant to defi ne who pays whom, and how, in cases of
environmental damage.
The environmental liability rules have not been accepted by the interna-
tional community as widely and clearly as the preventive rules. Why is this?
There was widespread criticism of the notion that separate liability rules
should be constructed during the ILC process for the creation of environ-
mental liability rules. Why would separate environmental liability rules be
necessary if the widely accepted international law of state responsibility was
to apply to environmental damage as well? The ILC had worked for decades
on the general rules of state responsibility (the actual work started in 1955
but the academic groundwork had begun even before the founding of the
United Nations), and they were fi nally adopted in 2001. The majority of
these draft articles are considered to refl ect customary international law, as
the UN International Court of Justice among others has stated in many of its
decisions.
Once the rules of state responsibility had been codifi ed in 2001, it was
clear that they also covered environmental damage - just as many critics