Legal responsibility for environmental damage - Introduction to International Environmental Law - page 169

had claimed. Although the International Law Commission accepted the
environmental liability principles in 2006, they focused largely on ensuring
access to compensation for private citizens and communities subjected to
environmental damage. These principles sought, inter alia , to eliminate obsta-
cles in domestic legal systems preventing individuals from seeking compensa-
tion in a court of the state from which the pollution originates, even if they
themselves were resident in another state. The 2006 environmental liability
principles are based on a model that has actually worked in state practice:
industries are encouraged to take out comprehensive insurance against envi-
ronmental damage so that they would actually be in a position to pay the
compensation if the worst happens. Similarly, the principles require a state
to contribute to the compensation regime if a private enterprise, notwith-
standing its insurance, cannot meet its liabilities in full. The principles even
imply that if the environment in another state has been damaged, it should
be restored. However, the draft principles remained hopelessly general. This
is one of the reasons why the principle of no-harm continues to be the
essential set of legal responsibility rules. 2
The role of the international law commission in
promoting environmental damage rules
The UN International Law Commission has carried out the preparatory work
for several international legally binding agreements. It can also infl uence the
development of international law in other ways, as was the case with the inter-
national law of state responsibility.
After more than 50 years of work, the ILC fi nalized a set of articles on state
responsibility and a decision was made to annex them to a resolution of the Gen-
eral Assembly (a non-binding adoption of the rules) but to delay, indefi nitely,
the negotiations that would develop them into a binding treaty. This was a wise
decision. If treaty negotiations had started on the basis of the ILC's draft articles,
they would probably have dragged on for years, if not decades, and the contents
of the rules would have been totally changed as states sought to water down their
substantive content.
As it is, the ILC state responsibility rules are, in name, draft rules only, but as
they were generated by an authoritative body over a long time, they are inter-
preted by the international courts as largely codifying the (binding) customary
law of state responsibility. The same was true of the preventive principles - and,
it is possible, will also be true of the development of the 2006 environmen-
tal liability principles. Although they are draft principles only, the international
community may gradually begin to regard them as customary law.
So it seems that, at least in these regulation projects, the ILC is most effi cient
when it just accepts draft principles instead of subjecting the principles to the
logic of inter-state compromise.