Globalising Environmental Liability: The Interplay of National and International Law

Abstract

Principles concerning liability for environmental damage are surprisingly underdeveloped in international law. Some countries consider that no development of existing law is needed because the issue has been adequately deal with under the International Law Commission`s articles on State Responsibility. Nevertheless, some 27 years ago, the Commission embarked on developing a set of specific principles. For reasons of political pragmatism rather than legal principle, the latest draft proposals of the ILC published last year have rejected strict liability in favour of loss allocation amongst different actors. The core principles of the proposals are critically assessed against the background of other international and regional initiatives concerning environmental liability. The ILC has been cautious rather than radical in its approach, perhaps understandably building on and consolidating existing modern developments in civil liability treaties. Nevertheless, access to justice based on prompt and adequate compensation is core to the proposals, and the failure to make this an obligatory requirement represents a potentially fatal weakness.