Edited by Malgosia Fitzmaurice, David M. Ong and Panos Merkouris
Chapter 16: International Liability for Damage to the Environment
Louise Angélique de La Fayette This chapter deals with the question of international civil liability for damage to and through the environment. Over the past 50 or so years, as the international community has become increasingly concerned about protection of and damage to the environment, it has adopted a substantial number of international instruments providing for liability and compensation for damage caused by hazardous activities. While in earlier times, the focus was on state liability, in the 1960s it shifted to civil liability, as states refused to accept liability for transboundary harm and negotiated a number of global and regional agreements placing liability on the ‘operator’, or the person or entity in control of the hazardous activity. At the same time, the type of damage covered shifted from an exclusive interest in damage to persons and property to damage to the environment, especially the natural environment. Most recently, there has been an enhanced interest in emergency response, especially response by the person or entity responsible, to ensure that immediate action is taken to contain, mitigate or prevent any damage. These features of an increasing number of liability instruments have affected the work of the International Law Commission on its topic ‘International Liability’. The chapter will begin with a brief outline of the ILC draft articles, and then proceed through an examination of the concept of liability, before briefly indicating the main features of the liability instruments adopted to date. After a thematic analysis of existing instruments, the chapter will...
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