Legal responsibility for environmental damage - Introduction to International Environmental Law - page 171

jurisdiction, for example to the biological diversity of the high seas. Often, the
real problem in these cases is that states are not prepared to act for the benefi t
of the international community as a whole when environmental damage harms
them all. As a result, states are predisposed to exercise their legal rights
only when there is identifi able damage to their own territory - and even then,
only rarely.

Strict-liability agreements
Certain intrinsically hazardous activities are regulated by special agreements.
Traditionally, such agreements are related to nuclear power plants and oil
transport, while new strict-liability agreements have emerged in recent years.
This section fi rst surveys the conventional agreements that impose legal
liability for damage to private actors and then looks briefl y at the liability
obligations in new international environmental agreements.
We already saw in Chapter 2 that since the 1960s, the amount of regulation
applying to the use of nuclear power and oil transport has been expanding.
The use of nuclear power is especially hazardous and therefore both the
Organisation for Economic Co-operation and Development (OECD) and
the International Atomic Energy Agency (IAEA) developed conventions
in the early 1960s (although there are few contracting parties). Both nuclear
treaty systems are based on the same principles:

1 The liability is channelled to the operator of a nuclear power plant: the
treaty systems apply the principle of 'polluter pays'.
2 The liability is strict (so there is no need to prove that an operator is at
fault), but if the damage is due to force majeure (such as war or natural
catastrophe), there is no liability to compensate.
3 The liability is limited; it was considered that otherwise nuclear plant
operators would fi nd it impossible to obtain insurance because of the
inherent risk of disaster (the operator, however, must take out insurance
up to the limit of the risk).

4 In both treaty systems, states, and ultimately their taxpayers, bear the

liability if the limit is exceeded.

The Joint Protocol Relating to the Application of the Vienna Convention
and the Paris Convention 3 was adopted in 1988. It was agreed that both the
OECD and the IAEA treaty systems can be applied to nuclear damage
incurred by the territory of a state that is party to either of the agreement
systems; that is, the systems were interlinked. On the basis of these treaty
systems an operator of a nuclear power plant is not expected to compensate
environmental damage; this was recently corrected by the 1997 Protocol to
Amend the Vienna Convention on Civil Liability for Nuclear Damage.
Environmental damage and preventive measures are also subject to compensa-
tion under the renewed Vienna system.