The Law of State Responsibility: Concerns Presented by Contemporary Environmental Law In Its Application

Introduction

The law on State responsibility is relevant in all areas of international law recognised by the International Law Commission, therefore establishing grounds for codification of law in Responsibility of States for Internationally Wrongful Acts [‘RSIWA’]. However, with increasing concerns over global warming and climate change, these Rules are being challenged as obsolete in application to contemporary problems.

The legal questions arise whether individual States can be held responsible for immediate and long-term damage to the environment, and the requirement to pay compensation as envisaged under RSIWA.

Articles on State Responsibility and International Environment Law

Article 1 provides that every international wrongful act is followed by an international responsibility. Two essentials are provided under Article 2, i.e., the act or omission is attributable to the State; and this act or omission is a breach of an international obligation. It is only when the wrongful act can be established, that a State is under a duty to make reparation for the injury under Article 31(1).

Generally classified into primary and secondary obligations, the breach of the former results in the operation of law on State responsibility towards a secondary obligation, such as, not limited to, eliminating the continuing wrongful act.

For conduct relating to preserving the environment, an illustration can be seen from the precautionary approach, which requires all reasonable precautions to minimise the risk.^[1] For example, a State will be within its rights to operate a nuclear plant on its border. But when it fails to maintain the plant to the standard required, or negligently handles the plant, then the event of an explosion whose affects can be felt across the border results in an international wrongful act. There must be liability for the same. This understanding has been crystallised in the case of Trail Smelter, noting that transboundary harm, though not intended, can be viewed as wrongful, hence, it is prohibited.

To determine the nature of State obligation in mitigating climate change, Barcelona Traction classifies it into State-to-State and erga omnes obligation. The duty owed to all States, such as exercising due diligence for harmful activities within the State’s jurisdiction, can be viewed as a primary obligation of the State to reduce any claims for climate change damages.

Due diligence and wrongful act

Two functions can be identified, first, to strengthen the primary rules found in treaties of customary law addressing environmental damage; and second, to equip the injured States with the right to seek restitution and compensation.

A State possessing the ability to mitigate risk and in possession of the required facilities should undertake measures diligently. In order to pursue attribution, causation must be established.

An act is the legal cause of damage if the damage arises as a “normal and natural consequence” or is a “reasonably foreseeable” consequence of the original act.^[2] The test of proximate harm is two-fold, the act is the cause in fact for the damage, and the damage is within reasonable foreseeability of the breach. The initial action in question must be proved to be the cause in fact, for the damage, i.e., the damage has occurred solely due to the initial act. A foreseeable and natural consequence of such act is the legal cause of damage.

In matters of ultra-hazardous activities, the damage is foreseeable irrespective of the magnitude of risk of loss as the risk is inherent in the activity. However, objective difficulties such as a plurality of actors and external intervening actions make it difficult to determine causation, especially for carbon emissions.

The underlying concept of RSIWA is that sovereign equality hinders absolute freedom to act, and unrestricted freedom from harm. To establish the responsibility of a State, there must be an attribution, which can be identified through the behaviour of State organs. But when individuals and private entities contribute to the emissions, they cannot automatically be attributed to the State unless the requirements under Articles 4-11 of ARSIWA are fulfilled.

For climate change, can lack of effort by a State to reduce emissions be viewed as the absence of due diligence? To qualify this, the Fourth Assessment Report by International Panel on Climate Change noted that every tonne of gases not emitted or every tonne of carbon sink preserved shall be viewed as an appropriate effort of State to mitigate climate change.

While there is “an overall minimal level of vigilance” associated with due diligence, “a higher degree of care may be more realistically expected” from States possessing the ability and resources to provide it. This allows discretion to the State to adopt measures to fulfil its obligation. The application of this principle is particularly concerning in the cases of multinational corporations [‘MNCs’] operating in the under-developed countries. Though able to host the MNCs, these countries often do not have the means to regulate the environmental impact of their commercial activities. Therefore, can this be viewed as a breach of primary obligation? Currently, the rationale behind State responsibility does not fit comfortably with the goals of environmental conventions, as the former focuses on reparation. In contrast, the latter extends to justice, sustainability and human security, among many others. This requires a revamp in the traditional understanding of reparation and must require States to take measures to mitigate climate change.

Principle of due regard and transboundary harm

The principle of due regard is now regarded as a customary international law obligation under Principle 2 of the 1992 Rio Declaration and Principle 21 of the Stockholm Declaration.^[3] A balance has been set out to note that the States have the sovereign right to exploit their resources under environmental policies, but they are responsible for ensuring that their activities do not negatively spill out beyond their territory or areas beyond national jurisdiction.

Areas beyond national control fall under the ‘corpus of international law.’ Article 3 of the ILC Transboundary Articles place an obligation on the States to ensure their otherwise acceptable activities do not harm other States. Any activity causing such harm is a violation that requires reparation. This duty is a principle of customary international law relating to the protection of res communes.^[4]

In the case of Nuclear Tests, the Court emphasised the importance of international cooperation as a fundamental concept of international law and customary international law. States must provide information to other States on activities affecting the environment. In the Corfu Channel case, the Court characterised the duty to warn others as a ‘basic consideration for humanity.’

In the case of Gabcikovo-Nagymaros Project, the Court emphasises the need for vigilance and prevention to avoid irreversible damage to the environment. Timely notification must be provided to have enabled preventive action, a core of environmental policy.^[5]

Precautionary principle

The precautionary principle establishes that lack of full scientific certainty will not be used to excuse the failure in implementing cost-effective measures to prevent environmental degradation where there are threats of serious or irreversible damage. Decisions of forums such as ICJ and the ITLOS Tribunal, confirm that the precautionary principle is a part of customary international law.

The grey area is in the use of res communes, such as the high seas, where UNCLOS allows for freedom of use, navigation etc. It is pertinent to note that the precautionary principle imposes the burden of proof on the actor undertaking ultra-hazardous activities to show that the activity shall not cause unacceptable damage to the environment before they are allowed to carry out the activity. Therefore, for private commercial activities in the territory of the State, national policies provide for the liability of the actor. Still, it is unclear if State can be held responsible under international law. It is essential to evaluate if national actions by the State against the offending individual or corporation, either civil or criminal liability, can be considered to reduce the wrongfulness of the action (if there is any).

Incompatibility of the law of state responsibility

ILC, in its work on transboundary harm and treaties, view due diligence as a primary obligation on states, for instance, in Article 194 of 1982 UNCLOS, Article 2 of 1985 Ozone Convention etc. But this obligation is flexible due to the widely-worded conventions, and therefore, does not seek to achieve the purpose of state responsibility as there can be no guarantee of prevention of harm. Presently, States view this obligation to include undertaking appropriate measures to reduce risk; cooperation with states and organisation; national monitoring mechanisms; and prior project assessment before approval is given.^[6] The third and fourth obligations are very vaguely worded, especially for outer space activities. As per Article VI of the Outer Space Treaty, there is barely any binding obligation on States for a national monitoring mechanism.

A recent study shows that Earth’s atmosphere pulls the space junk towards itself, where they often naturally decay and burn in less than a decade. This has devastating impacts due to carbon emissions and release of enormous amounts of heat, which get trapped in the atmosphere, reducing its density. Reduction in density increases the effects of climate change such as temperature rise.

This requires us to revisit the relationship between international space law and environmental law. While damages have been included for collisions, and re-entry into the surface of the Earth, there has been no mention or discussion for heat released into the atmosphere, which has a long-term impact. Therefore, the Articles have become redundant, and there is no primary obligation on States in the first place.

In light of this, the third and fourth obligations do not help apply law of State responsibility with respect to heat emissions from decay. States either have rigorous monitoring policies, or they don’t have such policies. The only acceptable understanding of the monitoring mechanism is the national registry for space objects to identify the launching State, but there is no uniform standard for risk assessment, information channels between the government and the space actor.

The next issue is the requirement of attribution to the State. But will this include private corporations that undertake hazardous activities? ILC’s work requires State authorisation or any agent or organ of the State. For a private individual or a company, there must be express consent for attribution for acts committed in an official capacity. Domestic statutes, which often require environmental assessments, cannot be viewed as authorisation, as there are no actions undertaken in an official capacity. This breaks the chain for attribution, and States can easily escape claims for liability. But it remains unclear as to how States can identify which hazardous activities can be considered to determine wrongful actions.

Moreover, do international commitments classify as a primary obligation? States have pledged to reduce carbon emissions or agree to stick to a specified limit; but can this be considered a primary obligation? This is interesting from the aspect of human rights violations, as noted in the Inuit Petitions, which claimed for reparations from Canada for insufficiently regulating carbon emissions, thereby negatively affecting human rights. The rationale for the Petition is that States must penalise infringement of fundamental rights by third parties. Moreover, the Petitions demand that United States of America [‘USA’] and Canada to recognise their obligations under environmental laws, and their commitment to help mitigate climate change issues. While the Petitions have been dismissed, they have raised interesting factors to ponder. Firstly, it is not the emissions from USA or Canada alone that contribute to global warming. Human rights have been affected by global warming, so is there an international responsibility on all States to pay reparation? Secondly, if the first question is answered negatively, will the responsibility solely lie with the USA and Canada? If yes, it does not meet the test for causation, and often the damage may be considered too remote and unforeseeable.

Defences provided for under the law of State Responsibility

RSIWA allows for defences such as force majeure, necessity etc. It is unclear how a State can use these defences to escape liability.

Under force majeure, it is an unforeseen or foreseen but inevitable or irresistible external event, making it impossible for a State to perform the obligation concerned. So if an industry were to explode and release huge tons of carbon dioxide and smoke, it is an unforeseen event. So will the States escape responsibility by raising this defence?

Firstly, a State that is invoking the doctrine of necessity must not contribute to the situation either deliberately or negligently to avoid responsibility. Possible grounds to avoid being held negligent are national policies in case of industrial disasters such as Chernobyl; or for carbon emission control, the need for industrialisation and commercialisation will serve as a ground to establish the necessity for undertaking the action. Secondly, the necessity of one State must not seriously impair a vital interest of the State or States towards whom the obligation exists or the international community as a whole.

Conclusion

Thus, there remains an incompatibility of ARSIWA with contemporary issues of environmental pollution. First, there is no uniform standard to define primary obligations, leaving it open for States to negotiate the limits of their commitment. This defeats the purpose of State responsibility. Second, climate change issues are best addressed at conventions, conferences and bilateral negotiations, in the case of injured and injuring States; this serves as a more accessible alternative than seeking reparation under State responsibility. Lastly, obligations of transboundary harm and the precautionary principle are primarily based on due diligence, which has a fluctuating standard, thereby making it impossible for the application of State responsibility.

1. David Freestone and Ellen Hey, The Precautionary Principle and International Law: The Challenge of Implementation, 10 (1st ed. Kluwer Law Int‟l 1996) ↑
2. Glanville Williams, Causation in Law, 19 Cam. L. J 62, 63 (1961) ↑
3. Supra note 1 ↑
4. prue taylor, an ecological approach to international law: responding to challenges of climate change 70 (Routledge 1998) ↑
5. Patricia bernie & alan boyle, international law and the environment 129 (Oxford 2008) ↑
6. Ibid ↑

(This essay has been authored by Pemmaraju Lakshmi Sravanti, a student at School of Law, Christ University, Bangalore. )