Liability Regime in International Environmental Lawby Rahul Kumar Patel | 28-07-2018 10:32 |
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International environmental treaty law is progressively creating behavioral obligations which are meant to be implemented by States. The development of such rules requires the establishment of mechanisms which ensure their compliance. One such mechanism is the regime providing for liability for damage to the environment. The liability regime may perform several functions; (1) an enforcement function; (2) a preventive function; (3) a punitive function; and finally (4) protective function. The enforcement function refers to liability as a method of enforcing the law. It provides an effective enforcement instrument for implementing existing rules. In its preventive function, liability appears as an incentive instrument that urges an actor to do its utmost to avert the imposition of liability. The object of the punitive function is to shift the injurious consequences of conduct in whole or in part from the victim to the source of that conduct through a compensatory arrangement or individual punishment. The main object is to protect the environment from harm and provide a peaceful environment for humankind. The conclusion of civil liability treaties has been, from time to time, encouraged in general terms by the international community. In the 1972 UN Conference on the Human Environment in Stockholm, the participating states agreed "to cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction." Since 1972, this principle has been reiterated in numerous conventions and declarations in more or less similar terms. All of these conventions and declarations have appealed to further develop liability law. For instance, the 1982 UN Convention on the Law of the Sea in Article 23 5 (3), provides that states shall develop the international law on liability for pollution of the marine environment with the objective of ensuring prompt and adequate compensation. The 1991 Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa the 1992 Convention on Biological Diversity together with its Cartagena Protocol on Biosafety the 1992 Convention on the Protection and Use of Transboundary Water Courses and International Lakes, and the 1992 Convention on the Transboundary Effects of Industrial Accidents8 are the agreements that contain specific provisions on liability and compensation. At the 1992 UN Conference on Environment and Development (UNCED) in Rio de Janeiro, the participating states reiterated the principle. This principle differs from Principle 22 of the Stockholm Declaration in two notable points. First, it appears that appeal in Principle 13 of Rio Declaration is phrased in stronger terms as it called on states to cooperate "in an expeditious and more determined manner" to develop further international liability law. Second, Principle 13 makes a distinction between national liability law and international liability law. It reflects the fact that the international community is giving more weight to national liability than to international liability, due to the difficulties encountered in developing international liability law. The emphasis on national liability, however, is not as such to detract from the need to develop international liability law. Based on the above-mentioned encouragement, attempts in several international forums, have been made to develop liability regime. The IAEA Standing Committee on Liability for Nuclear Damage, the IMO Legal Committee as well as the meetings of legal experts convened under 1991 Protocol in Environmental Protection to the 1959 Antarctic Treaty and the 1989 UNEP Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal were some of the international forums that had a mandate to develop liability regime. 11 These attempts have resulted in concluding a dozen civil liability treaties to facilitate compensation for environmental damage. These treaties may be divided into five groups: 1. Liability for Nuclear Damage: Starting Point 2. The Protection of the Marine Environment: A Leading Case of Innovation in Liability Law. 3. The Antarctic Environment: Developing a Comprehensive Regime for Liability 4. Liability Regime for Damage Resulting from Transboundary Hazardous Wastes 5. Treaty that Deals with Liability for Environmentally Harmful Activities Generally
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