Legal responsibility for environmental damage - Introduction to International Environmental Law - page 174

negligence, such rules have scarcely been applied in real world disputes. One
could fi ll a library with the topics written about the sic tuo utere principle,
neighbourliness, or due diligence, but the surprising fact is, the old Trail
Smelter decision is the only decision that has held a polluting state (Canada) to
be legally liable for transboundary environmental damage. 10
In other cases, states have admitted causing environmental damage but have
not assumed legal liability; compensations have been paid ex gratia : that is,
a state has expressly denied legal liability. However, in some exceptional cases,
functioning compensation rules have been created to encompass environmen-
tal damage cases as well.
In 1990, Iraqi troops invaded Kuwait and were defeated by the US-led and UN
Security Council mandated troops in 1991. The Security Council established a
fund for compensating for the damage caused in Kuwait; proceeds from Iraqi oil
sales contributed to the fund. The United Nations Compensation Commission
was established to administer the fund; it was not a court of justice, but a kind of
inspector of facts. Its various panels decided who was entitled to compensation
for the damage caused by Iraq, and how much.
Iraq's actions caused huge environmental damage - for example, in setting fi re
to oil wells in occupied Kuwait and by intentionally pumping oil into the Per-
sian Gulf. The Security Council decided to establish a panel devoted entirely to
environmental damage. The panel introduced a highly progressive view: among
other things, compensation was paid for restoration of the ecological status
of environment and for assessing and monitoring environmental damage.
Hazardous operations - the use of nuclear power for energy production
and marine transport of nuclear materials - are included in regional and global
civil liability to some extent, although few states are party to the agreement.
International declarations encourage states to include liability rules in envi-
ronmental treaties. The ambitious goal of the UN International Law
Commission to achieve general principles of state liability for environmental
damage seems to have partly failed, although the draft principles were adopted
in 2006. Certain international environmental treaties have tried to create
strict-liability civil indemnity rules. To date, not many have tried this and no
widely ratifi ed compensation protocols have been created.
The law of state responsibility has so far played a limited role in environmen-
tal cases. Instead, the preferred option is the creation of collective mechanisms
under which implementation committees softly apply pressure on states to
observe their treaty obligations and contribute to the prevention of environ-
mental damage. Compensation for damage in international environmental law
is still in its infancy. In practice, only oil damage compensation is relatively well
regulated. Recent years have seen an increase in the number of individuals and
groups submitting human rights petitions to human rights courts or global