Environmental Protection by Means of International Liability Law

Transcription

1 BERICHTE 6/99 ENVIRONMENTAL RESEARCH PLAN OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONVERSATION AND NUCLEAR SAFETY - Environmental Liability - Research Report , new: UBA-FB on behalf of the Federal Environmental Agency Environmental Protection by Means of International Liability Law SUB Gottingen 7 by Prof. Dr. Riidiger Wolfrum Dr. Christine Langenfeld m,ms StOH i@rfs ihf in cooperation with Dr. Uona Renke Betsy Baker Roben (J.D., LL.M.) Christian Ulrich Wolf translated from the German by Terence J. Oliver, in cooperation with Betsy Baker Roben Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg ERICH SCHMIDT VERLAG BERLIN

2 V Contents List of Important Abbreviations xvii Part 1: Introduction 1 Part 2: R sum6 of Environmental Liability Provisions in International Law (Langenfeld) 3 I. International agreements/drafts 3 1. Transboundary air pollution and pollution of the Earth's atmosphere Convention on Long-Range Transboundary Air Pollution Convention for the Protection of the Ozone Layer / Montreal Protocol on Substances that Deplete the Ozone Layer Framework Convention on Climate Change 5 2. Liability in connection with marine pollution, Agreements on liability for damage due to the carriage of oil and other hazardous substances Oil pollution International Convention on Civil Liability for Oil Pollution Damage / International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage Excursus: Voluntary liability agreements for compensation of oil pollution damage International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties Conventions on precautions, control and cooperation in cases of oil pollution International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention) Marine pollution resulting from exploitation of the seabed International Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for arid Exploitation of Seabed Mineral Resources 30

3 Agreement for Cooperation relating to the Marine Environment Liability regime for deep-sea mining under the UN Convention. on the Law of the Sea (UNCLOS) Agreements under international law for the protection of the marine environment, with a programmatic liability clause or general criminal law clause, the implementation of which is the responsibility of the contracting states Agreements for the protection of the marine environment with a programmatic liability clause Agreements for the protection of the marine environment with a programmatic liability clause, the contents of which are to be specified in greater detail by subsequent international conventions Conventions for the protection of the marine environment, with a liability clause that relates to the harmonisation and further development of national liability provisions Conventions on the protection of the marine environment containing a general criminal law clause, the implementation of which is the responsibility of each of the contracting states UN Convention on the Law of the Sea International Convention on Salvage,42 3. Water conservation (fresh water) Convention on the Protection and Use of Transboundary Watercourses and International Lakes ILC Convention on the Law of the Non-Navigational Uses of International Water Courses Guidelines of the ECE (Economic Commission for Europe) Task Force on Responsibility and Liability Regarding Transboundary Water Pollution Agreement of 10 June 1922 between Germany and Denmark regu-. lating the Water and Dyke Situation at their Common Border Treaty Concerning the River Plate and Its Maritime Limits Dangerous substances and activities 50

4 4.1. Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment ; The Nordic Environmental Protection Convention North American Agreement on Environmental Cooperation Convention on Civil Liability for Damage caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD Convention) Convention on Environmental Impact Assessment in a Transbound- ary Context Convention on Transboundary Effects of Industrial Accidents Waste transport and waste management Draft Articles of a Protocol on Liability and Compensation for Damage Resulting from the Transboundary Movements of Hazardous Wastes and Their Disposal Convention of the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako Convention) / Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes Within the South-Pacific Region (Waigani Convention) Bilateral agreements Agreement between the Government of Canada and the Government of the United States of America concerning the Transboundary Movement of Hazardous Wastes Agreement between the Government of the United States of America and the Government of Malaysia concerning the Transboundary Movement of Hazardous Wastes from Malaysia to the United States Agreement of Cooperation Between the United States of America and the United Mexican States Regarding the Transboundary Shipment of Hazardous Wastes and Hazardous Substances Transboundary nuclear pollution : 71

5 6.1. Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention) / Convention Supplementary to the Paris Convention (Brussels Convention) The Vienna conventions on liability for nuclear damage Vienna Convention on Civil Liability for Nuclear Damage Protocol to Amend the Vienna Convention Convention on Supplementary Compensation for Nuclear Damage Agreement between the Federal Republic of Germany and the Swiss Confederation on Liability to Third Parties in the Field of Nuclear En- : ergy Convention on the Liability of Operators of Nuclear Ships Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material The Antarctic ; Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) Protocol on Environmental Protection to the Antarctic Treaty Negotiations on an environmental liability regime for the Antarctic the Chairman's Eighth Offering on an Annex on Environmental Liability Space : :... : : Space Treaty / Convention on International Liability for Damage caused by Space Objects ILA Draft Instrument on the Protection of the Environment from Damage Caused by Space Debris, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Agreement of 4 January 1995 between the Government of the Federal Republic of Germany and the Government of Australia concerning the Landing and Recovery of a Space Capsule in Australia 102 II. The Work of the International Law Commission (ILC) / ILC Draft on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law 103

6 IX III. Interim conclusion 110 IV. Responsibility and Liability for Environmental Harm under Public International Law Preliminary remark Transboundary environmental harm Validity of the principle of responsibility under international law for trinsboundary environmental harm Preconditions for responsibility for transboundary environmental harm Breach of duty : Content of breach of duty Responsibility for the acts of private persons Disapproved result Circumstances precluding wrongfulness Legal consequences of responsibility for transboundary environmental Hrm '..; 1?5 6. Enforcement 126 Part 3: Liability for Environmental Damage in European Community Law (Renke) 127 I. Introduction 127 II. Development of environmental liability law in the European Community III. Liability rules under Community legislation de lege lata The Product Liability Directive i39 0 Member states' liability for transboundary environmental harm as a grneral legal principle of Community law? 143 IV. Liability rules under Community legislation de kgeferenda Proposed Directive on civil liability for damage caused by waste Proposal by the Commission for a Council Directive on the liability of suppliers of services 154 V. Outlook for the future: The EC Commission Green Paper on Remedying Environmental Damage 158 VI. Final assessment 163

7 X Part 4: Environmental Liability Law in Germany (Renke) 168 I. Introduction 168 II. Individual elements of liability de lege lata Private environmental liability law Fault-based liability under Section 823 ff. Civil Code Liability pursuant to Section 823 para. 1 Civil Code Liability pursuant to Section 823 para. 2 Civil Code Strict Liability ': Liability under the Environmental Liability Act (UHG) Liability under Section 22 of the Water Resources Management Act (Wasserhaushaltsgeset^-WHG), Liability under Sections 32 ff. Genetic Engineering Act (Gentechnikgesetz-GenTG) Liability under Sections 25 ff. of the Nuclear Energy Act (Atomgesetz-AtG) Liability under Section 1 of the Product Liability Act (Produktbqftungsgeset^-ProdHaftG) Liability under Section 7 of the Road Traffic Act {Strafienverkehrsgeset^-StVG) Liability under Sections of the Air Traffic Act (Luftverkehngesetz-LuftVG) The law of mining damage Beneficial impairment liability (Aufopferungshaftung) Liability under Section 906 para. 2 sentence 2 Civil Code Liability under Section 14 sentence 2 Federal Immission Control Act, Section 11 Air Traffic Act, Section 7 para. 6 Nuclear Energy Act, Section 23 sentence 2 Genetic Engineering Act General claim to compensation for beneficial impairment Compensation for environmental damage under public law distinction from private environmental liability law Public law liability

8 XI 3.1. Official liability under Article 34 sentence 1 Basic Law (Grundgeset^ GG) in conjunction with Section 839 Civil Code Claims arising from expropriation and expropriation-like encroachments Claims to compensation under Section 74 para. 2 sentence 3 and Section 75 para. 2 sentence 4 Administrative Procedure Act (Verwaltungfverfahrensgeset^ VwVJG).. ' Official liability founded on Section 14 sentence 2 Federal Immission Control Act (Bundes-Immissionsschut^geset^ - BImSchG) The polluter's responsibility under the law of public order Compensation for ecological damage (direct environmental protection) Section 16 para. 1 Environmental Liability Act and Section 7 sentence 1 Genetic Engineering Act Encroachment rules under nature conservation law Compensation for ecological damage through "conducting another's affairs without mandate" (Geschdftsfuhrung ohne Aufirag) under public law III. Provisions under legislation de legeferenda, Legislation drafted by Hesse, North-Rhine/Westphalia and the parliamentary Greens Draft of an Environmental Code - General Part (UGB-AT) The Professors' Draft Draft of the Expert Commission Liability for cumulative and remote damage (Summations- und Distanychaden) 244 IV. Analysis and assessment Structural features of present-day German environmental liability law 246 ' 2. Analysis and assessment of the legal situation 247 Part 5: Environmental Liability Legislation in the United States (Roben) Strict liability for environmental damage under US federal laws The "Clean Water Act" (Federal Water Pollution Control Act of 1972) The CWA as a model for US environmental liability laws 266

9 1.2. Liability standards in the CWA Potentially responsible parties and proper defendant status Environmental damage and trustees Natural Resource Damages Reimbursement of (appropriate) restoration measures Eligibility of residual damage for compensation Natural resources trustees Funds : Compulsory insurance National Contingency Plan Excursus: Prevention The CWA and the international oil liability system CERCLA and the "Superfund" : The common origins of CERCLA and OPA 280, 2.2. CERCLA's mechanisms: Response, Compensation, Liability Response actions National Contingency Plan, Hazardous substances covered: Information and analysis Compensation: The Superfund Liability Potentially responsible parties and proper defendant status Ecological damage and the assessment of natural resource damages The concept of natural resource damage and the scope of liability Excursus: Assessment of natural resource damages ; Damage threshold : Causation and contribution Liability exclusion elements Liability limit and compulsory insurance 301

10 X1U Liability limit and punitive damages Liability limit Punitive damages Compulsory insurance Information rights / Status of environmental protection associations / Proper plaintiff status Excursus: Criticism of CERCLA The Oil Pollution Act of 1990 (OPA) Liability standards : Responsible parties and proper defendant status Concept of damages Natural Resource Damages and Trustees Assessment of natural resource damages under OPA Damage threshold Liability exclusion elements Liability limit and compulsory insurance Liability limit Compulsory insurance Retroactive effect Fund Prevention: The Prince William Sound provision and other safety provisions in OPA The Trans-Alaska Pipeline Authorization Act (TAPAA) Liability principles ; Responsible parties / Proper defendant status Concept of damages The Marine Protection, Research and Sanctuaries Act (MPRSA) Liability standards Concept of damages 325 II. Natural resource damage and environmental liability in US case law 327

11 xiv 1. Earlier cases: non-recognition of natural resource damage The SS Zoe Colocotroni case : The Exxon Valdez case 331 III. Conclusion 334 Part 6: Transboundary Environmental Damage in Private International Law and International Civil Procedure (Wolf) 337 I. Introduction 337 II. Jurisdiction 337 III. International jurisdiction International jurisdiction regulated by international treaty International jurisdiction under specific conventions International jurisdiction under Brussels Convention and Lugano Convention General jurisdiction under Art. 2 Brussels/Lugano Conventions Exclusive jurisdiction under Art. 16 No. 1 (a) Brussels/Lugano Conventions Concurrent jurisdiction under Art. 5 No. 3 Brussels/Lugano Conventions Concurrent jurisdiction under Art. 5 No. 4 Brussels/Lugano Conventions International jurisdiction under autonomous international civil procedure law International jurisdiction under Sections 12,13,17 Code of Civil Procedure International jurisdiction under Section 24 Code of Civil Procedure : International jurisdiction under Section 32 Code of Civil Proce- dure ;.: International jurisdiction under Section 32a Code of Civil Procedure International jurisdiction under Section 23 sentence 1, first alternative, Code of Civil Procedure 358

12 XV 1.4. Forum shopping Multiple parties il. Autonomous international law of civil procedure Brussels Convention and Lugano Convention Capacity to be a party and capacity to bring an action 363 IV. Applicable law < Choice of law rules in agreements under international law Autonomous rules on choice of law Special conflict rule of Section 40 para. 1 Nuclear Energy Act (Atomgeset^ - AtomG) ; r General choice of law rules Choice of law rules in the law of torts Coverage of the applicable law of torts v Effect of public law authorisations Preclusive effect Unlawfulness and negligence 381 V. Evidence issues 381 VI. Recognition and enforcement Recognition Recognition under specific conventions Recognition under Brussels Convention and Lugano Convention Recognition under autonomous German law Enforcement 390 VII. Final assessment : 391 Part 7: Summary and Assessment Purpose of liability for environmental damage Responsibility / Liability Concept of damage Personal injury and loss of or damage to property 393

13 XVI 3.2. Economic loss Ecological damage (Environmental damage) Damage threshold, Liability criterion Damage assessment Reversible damage, Eligibility of residual damage for compensation Compensation for preventive measures Causation problems General Distance damage and cumulative damage Proper plaintiff and proper defendant Liability exclusion elements / Liability exclusion due to lapse of time Liability exclusion elements ; Exclusion of liability due to lapse of time Liability limit and compulsory insurance Civil liability and state liability Funds : Information rights / Status of environmental protection associations Rules of jurisdiction and enforcement 414 -Part 8: Recommendations de lege ferenda 417 Bibliography. 423