Kiss & Shelton: Strict Liability in International Environmental Law

Alex Kiss (Columbia Univ.) & Dinah L. Shelton (George Washington Univ. - Law) have posted Strict Liability in International Environmental Law (in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, forthcoming). Here's the abstract:

The principle that a State is responsible for causing environmental harm outside its territory in breach of an international obligation has been slow to evolve to address the allocation of loss due to accidents. In settling the well-known dispute between the United States and Canada concerning the activities of the Canadian smelter located in Trail, British Columbia, the arbitral tribunal asserted a general duty on the part of the State to protect other States from injurious acts by individuals (both state and non-state actors) within its jurisdictions. The tribunal, however, noted the difficulty determining what constitutes an injurious act, but it may be concluded that a State's failure to regulate or prevent serious harm from polluting activities, in instances where it would protect its own inhabitants, would constitute a wrongful act. The Trail Smelter arbitration left open the question of whether a State exercising all due diligence would be liable if transfrontier harm results despite the State's best efforts - whether there would be strict liability.

States appear hesitant to accept international rules that would oblige them to restrict or accept liability for activities whose harmful environmental consequences are likely to be limited to their own territory. Here, economic interests play a major political role. However, specific activities such as nuclear activities and marine pollution present a significant risk for the environment of the commons or of other States. While international law has been slow in placing the risk of loss on the actor profiting from the enterprise, economic globalization potentially could lead to progress by harmonizing the conditions of operation in certain fields of activities dangerous to human health and to the environment.