STRICT LIABILITY IN INTERNATIONAL ENVIRONMENTAL LAW

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. The issue was not before the arbitral tribunal in the well-known dispute between the United States and Canada concerning the activities of the Canadian smelter located in Trail, British Colombia. The arbitral tribunal asserted a general duty on the part of a State to protect other States from injurious acts by individuals within its jurisdiction. The arbitral agreement itself recognized the responsibility of a State for the acts of non-State actors as well as those of the State or its organs. Summing up, the tribunal found that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”.

The tribunal noted difficulty of determining what constitutes an injurious act. Despite claims for absolute prohibition of harmful activities, the tribunal agreed with national court precedents that States should take reasonable precautions to prevent harm, the same as those it would take to protect its own inhabitants. 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.