Of Sense And Sensibility: Reflections On International Liability Regimes As Tools For Environmental Protection

Abstract

There are several reasons, pertaining to both the development of a generallyapplicable framework and the elaboration of issue-specific approaches, why it is timely to reflect on whether liability regimes are an appropriate tool for international environmental protection. At the level of general norms, the International Law Commission (ILC) appears to have arrived at a crossroads, as it must decide whether and how to approach further work on liability for transboundary environmental harm. At the same time, discussions about issuespecific liability regimes have proliferated. Indeed, it seems that few multilateral environmental agreements (MEAs) can be negotiated today without running across the liability issue in one way or another. The issue often divides Southern delegations, which tend to push for the inclusion of liability regimes, and Northerndelegations, which tend to resist. But the disagreement is not just a matter of policy and politics. There is also a lively debate in the literature about the pros and cons of international liability regimes. All the more reason, therefore, to assess whether engaging in the laborious task of developing a liability regime is a good investment of scarce negotiating resources. The goals that animate the quest for environmental liability are important ones: to make polluters pay for the environmental costs of their activities, to compensate innocent victims, to protect the environment, and, in certain contexts, to protect developing countries against environmental risks. The key question is whether, given these sensibilities, the approach makes sense.