- Since the environment per se is not proprietary, some have wondered whether third party liability regimes are the adequate instruments for addressing environmental damages, or whether international instruments on state liability/responsibility are not more appropriate. Compensation can be difficult because of the non-quantifiability of damage to the environment.
- Cf Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for and Exploitation of Seabed Mineral Resources, London, May 1977, 1, adopted at the Intergovernmental Conference on the Convention on Civil Liability for Oil Pollution Damage from Offshore Operations, 16 ILM 1450 (1977); International Convention on Civil Liability for Oil Pollution Damage (CLC), Brussels, 29 November 1969, in force since 19 June 1975, 9 ILM 45 (1970); International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 18 December 1971, in force since 16 October 1978, 11 ILM 284 (1972).
- Cf Peter Laurence, ‘Negotiation of a Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal’ (1998) 7 Review of European Community and International Environment Law 249.
- Roughly speaking, and leaving the monistic versus dualistic systems aside.
- This remains quite controversial regarding the US Superfund.
- Professor Stone, in a noteworthy article published in 1972 in the Southern California Review, proposed to give trees the right of standing. He was followed by some authors, including Marie-Angele Hermitte (l'état des sciences, ed de la découverte, 1992, pp 59–60), Bernard Edelmann and Professor Caballero (thesis, LGDJ, p 310). Contra, revue Esprit, October 1992, Dominique Bourg, passim.
- Article 3, (a), (i) and (ii).
- Cf the exposé des motifs of the Paris Convention, point 39: what should be considered as damage to persons or to property and the extent to which compensation will be recoverable is left to be decided by the competent court in accordance with the national law applicable.
- Article I, (l)(k).
- Article 2.
- On the transboundary aspects of the nuclear liability, cf P Blanchard, ‘The Risk of Civil Nuclear Liability of Foreign Contractors in Central and Eastern Europe and the NIS, in Contemporary Developments in Nuclear Energy Law—Harmonising Legislation in CEEC/NIS (Kluwer Law International, 1999), pp 523–551.
- Article 13.
- Article 11.2.
- Article 13(e).
- Cf Article 1 definitions which also include legal persons, international entities and even entities deprived of legal personality.
- Article 7.
- Article 8(a).
- Paris Convention, Articles 3 and 6; Vienna Convention, Article 2, passim.
- Article 3(b).
- Article 9.
- This argument was previously alleged to justify the non-adhesion to the Vienna system.
- This way of defining the damage has created a large debate among lawyers that are envisaging the revision of the Paris Convention, even if they agree on the aim of this modification.
- Article 7.
- Article 10.2.2.
- Measures of reinstatement have been adopted in some national regulations, for instance in Germany and in the Czech Republic.
- Article 6(c)(ii).
- Article 3(a).
- Article II.6.
- On this problem of the state international responsibility, cf Nathalie L J T Horbach, Liability versus Responsibility under International Law (ed May 1996), passim. Includes developments regarding the following examples, pp 256 et seq.
- To use one text argument only, Article 18 of the Vienna Convention states that ‘this convention shall not be construed as affecting the rights, if any, of a contracting party under the general rules of public international law in respect of nuclear damage’.
- The possibility of endorsement, by the state of the victims, of the claims of its citizens, does open another dimension for this shopping.
- Resolution on the future of nuclear energy (doc A2-1/ 87), OG no C 125 (11 May 1987), p 88, resolution on the safety of nuclear power stations and the question of mutual assistance and compensation (Doc A2-11/87) OG no C 125(11 May 1987).
- Cf the Trail Smelter arbitration, between Canada and the United States, for an objective liability for transboundary damages caused by fumes, or the Sherry Point oil spill dispute between the same states, or the Showa Maru oil spill by an oil tanker in the Singapore strait in 1975, for direct responsibility of the flag state for transboundary pollution, and lately, the Sandoz case, for a chemical accident on the Rhine river, and the acceptance by the Swiss Government to compensate the French and German Governments for the damages, according to an international practice to accept a direct responsibility for accidental damages resulting from hazardous activities.
- Article 4.
- Supra.
- Under the exception of the Protocol and of the CSC.
- And under the nuclear civil liability regimes.
- Article 2.7.
- Article 7.4, (d).
- Article 2.8.
- Article 8.
- Object of Chapter III.
- Even if the charge of the proof has been alleviated by the Convention.
- Article 18.
- Article 6, new, of the EC Treaty.
- Article 7.8.
- Cf para 5.2 of the White Paper.
- According to clause 3.3 of the White Paper.
- German and Andalusian legislation are taken as examples, for ‘pricing’ the cost of the reinstatement or of the replacement of the damaged or destroyed elements.
- Where parties other than the polluter are also liable under national law, the plaintiff should be obliged to claim from the polluter first, as a defence against the deep-pocket approach.
- This is not to be confused with the ‘compliance with a permit’ defence, because the operator remains bounded by a general prudential obligation.
- The order of the authority is referred to here.
- Article 2 of the Convention.
- Article 3.
- Article 4.
- Article 5.
- Article 5.4.
- Article 5.6.
- According to Article 6.
- These activities are listed in Appendix 1; they include nuclear plants.
- Article 7.
- Article 8.
- Article 9.1.
- Appendix 1.1.
- For instance in French law, except for the participation of the public to the making of the legislation.
Journal of Energy & Natural Resources Law
Volume 18, 2000 - Issue 3