Edited by Malgosia Fitzmaurice, David M. Ong and Panos Merkouris
Chapter 12: The Polluter-Pays Principle
Priscilla Schwartz Introduction Despite the lack of a universally accepted definition of what pollution entails, and the special problems in addressing it, regulating pollution has been a consistent endeavour in international law, policy and relations. Controlling pollution has been addressed with a focus on specific media (land, air or water) in the context of its detrimental effects, its interference with other uses of the environment or in terms of allowable quality standards of discharge of substances in relation to the assimilative capacity of the environment (Ando 1981: 350–1; Springer, 1983: 13–15). Generally, international regulatory trends have emphasised prohibition of pollution (Trail Smelter Arbitration, 1938/1941), state responsibility or liability upon proof of damage (Case Concerning Factory at Chorzów (Claim for Indemnity), 1928: No. 17), complicity with broad standards, use of specified technology, emergency plans, preparedness and cooperation and in some cases sector-specific institutional controls. This regime became insufficient to deal with the wave of environmental pollution, resource depletion and damage engendered by contemporary economic activities, especially since there is still no global treaty on civil liability for transboundary pollution or damage and the availability of civil law remedies for transboundary damage cannot be assumed (Boyle, 2005: 4). The international system therefore needed to develop a consistent global strategy for allocating responsibility for the cause and effects of pollution, including a mechanism by which the costs of pollution can be integrated into resource use planning and decisionmaking. Such a system would minimise the pollution regulatory burden on states. As...
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