Tort Theory and International Environment Law

Noah Sachs
Strengthening Tort Remedies in International Environmental Law


STRENGTHENING TORT REMEDIES IN
INTERNATIONAL ENVIRONMENTAL LAW

Noah Sachs*

Abstract


The decades-long effort to establish viable tort remedies for victims of
transnational environmental damage has failed. More than a dozen civil
liability treaties have been negotiated that create causes of action and
prescribe liability rules for environmental damage, but few have entered
into force. Most remain unadopted orphans in the larger body of
international environmental law, and the failure of these treaties leaves
pollution victims with few options for obtaining compensation and
redress. This Article identifies the causes of that failure and the reasons
for states’ aversion to civil liability treaties. Drawing on political science
literature on regime formation, I argue that internationally-negotiated
liability rules have foundered because of interest conflicts between
developed and developing states and because treaty drafters have
incorporated provisions that are too onerous for states to accept. To break
the current impasse, I propose that liability rules be negotiated in tandem
with substantive environmental treaty provisions and that caps on
damages should be used as a negotiating tool to attract more widespread
ratification of civil liability treaties. These reforms will enhance the
prospects for deterring and compensating transboundary environmental
damage.

I. INTRODUCTION

Over the past four decades, states have discussed, deliberated, and debated how to
strengthen tort liability principles within international environmental law. In declarations,
conference reports, and treaties, states have professed a commitment to making liability work for

* Assistant Professor of Law, University of Richmond School of Law, and Faculty Director,
Robert R. Merhige, Jr. Center for Environmental Studies. The author wishes to thank colleagues at the
University of Richmond for suggestions and comments on this Article, and in particular Carl Tobias,
Corinna Lain, Jim Gibson, and Melissa Labonte. The author also thanks Lawrence Susskind of the
Harvard Law School Program on Negotiation and former colleagues at the Harvard Law School
Climenko Fellows program for suggestions on early drafts. Michael J. Clements provided invaluable
research assistance.

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Strengthening Tort Remedies in International Environmental Law


the environment, both as a means of deterring harmful activities and as means of compensating
parties injured by transboundary pollution.

Despite these ambitious pronouncements, the reality of what states have actually
accomplished in the liability field is quite meager, and it is time for a closer examination of what
has gone wrong. States have been unwilling to accept treaty language that would impose
liability for transboundary pollution on states directly (so-called “state liability”).1 They have
instead focused diplomatic energy on crafting civil liability treaties, which establish the liability
of private actors for transboundary pollution2 and set ground rules for private law tort suits
against culpable parties -- a form of “international regulation of private liability.”3 The fields
covered by civil liability treaties are diverse, ranging from transport of hazardous chemicals by
ship, to truck and canal transport of wastes, to operation of nuclear power plants and industrial
facilities.


1 State liability principles have been addressed by the International Law Commission and have
been discussed at great length in academic literature. See, e.g., RENE LEFEBER, TRANSBOUNDARY
ENVIRONMENTAL INTERFERENCE AND THE ORIGIN OF STATE LIABILITY 13 (1996). However, state
liability has been peripheral to the actual development of tort remedies in treaties. States have adamantly
resisted any treaty that would make them directly responsible for pollution from private actors, and
uncertainty about standing to bring claims, liability standards, and the type of damage that is recoverable
have precluded state liability from playing a major role in addressing transboundary pollution. See
Lefeber at 300 n. 242 and 243; See also Thomas Gehring & Markus Jachtenfuchs, Liability for
Transboundary Environmental Damage: Towards a General Liability Regime? 4 EUR. J. INT’L L. 92-106
(1993) (“There is no indication …that [states] are now ready to accept a convention imposing on them a
general international liability for transnational environmental damage.”); For a discussion of the
drawbacks of state liability as a vehicle for strengthening tort principles in international environmental
law, see Jutta Brunee, Of Sense and Sensibility: Reflections on International Liability Regimes as Tools
for Environmental Protection, 53 INT’L & COMP. L. Q. 351 (2004); Betsy Baker Roben, Civil Liability as
a Control Mechanism for Environmental Protection at the International Level, in INTERNATIONAL,
REGIONAL, AND NATIONAL ENVIRONMENTAL LAW 823 (Morrison and Wolfrum eds., 2000).
2 I use “transboundary” pollution as a broad term that actually encompasses two distinct types of
pollution. First, it refers to the flow of pollution (through watercourses, oceans, or the atmosphere) from
a “source” state to an “affected” state. Second, it refers to pollution caused by international trade in
hazardous materials. In the second sense of the term, the activities that can cause environmental damage,
such as transport, management, and disposal of the materials, usually occur in the “affected” state or on
the high seas, and the “source” state is a source only because the materials originated there and were
loaded on to some mode of transport there (rail, truck, or ship). See KATHARINA KUMMER,
INTERNATIONAL MANAGEMENT OF HAZARDOUS WASTES 15 (1995).
3 Thomas Gehring & Markus Jachtenfuchs, Liability for Transboundary Environmental Damage:
Towards a General Liability Regime? 4 EUR. J. INT’L L. 92-106 (1993).

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Strengthening Tort Remedies in International Environmental Law


Of the fourteen major civil liability treaties that have been signed in the environmental
field since 1960, however, only six have ever entered into force, and only one treaty, governing
oil pollution from ships, has resulted in actual claims for compensation. There are numerous
other examples of civil liability negotiations that were explicitly called for in international
conventions, but never took place, or never resulted in fruitful cooperation. With so many
stillborn treaties, the practical impact of civil liability treaties on enhancing tort remedies has
been negligible. Notably, not a single major civil liability treaty outside the contexts of oil spills
and nuclear accidents has entered into force, having fallen far short of the number of necessary
ratifications. They all remain dead letters, or as the United Nations Environment Program more
delicately put it, they have fallen into a “spell of dormancy.”4


The failure of civil liability treaties has serious consequences for deterrence, corporate
accountability, compensation of victims, and the global environment. Without specific treaties
setting ground rules for transnational tort suits, individuals harmed by transboundary pollution
have few viable avenues for redress because of what I will call “liability walls,” or procedural
hurdles to bringing transnational tort suits. Firms causing transboundary pollution (whether by
air, water, or disposal of hazardous wastes) are protected by liability walls and can continue to
externalize environmental risks to other countries. The lack of effective remedies for
international environmental harms was highlighted by the illegal dumping in August 2006 of 528
tons of caustic hazardous waste in villages in the Ivory Coast.5 The waste was off-loaded by a
Greek-owned tanker flying a Panamanian flag and leased by the London branch of a Swiss
trading corporation, Trafigura, whose physical headquarters are in the Netherlands.6 The toxic
sludge caused eight deaths and dozens of hospitalizations. With existing barriers to international

4 See Liability and Compensation Regimes Related to Environmental Damage – Review by UNEP
Secretariat, at 63 (2002), http://www.unep.org/DEPI/programmes/Liability-compen-papers.pdf.
5 See Lydia Polgreen and Marlise Simons, “Global Sludge Ends in Tragedy For Ivory Coast,” N.
Y.Times, Oct. 2, 2006.
6 Id.

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tort litigation, the chances are slim that these villagers will receive any monetary compensation
from culpable parties.7

Surprisingly, scholars of the role of liability in international law have largely overlooked
the lack of ratifications of civil liability treaties and have instead engaged in micro-level analysis
of individual treaties, examining design issues such as the choice between strict and fault-based
liability, the types of environmental harm that should trigger liability, channeling of liability to
certain operators, and the consequences of governmental permits for private liability.8 But
expertly designed treaties have little relevance if they do not attract adherents, and only a handful
of scholars have mentioned the lack of entry into force as a significant problem in this field of
law.9 The record of treaty failure should raise more fundamental questions: What accounts for
the problematic history of civil liability treaties? Can treaties that strengthen the role of tort in

7 In February 2007, Trafigura agreed to pay the government of the Ivory Coast $197 million to
obtain the release of Trafigura executives who were seized inside the country after the dumping incident.
It is not clear whether any of this money will reach the injured villagers.
8 See Liability and Compensation Regimes Related to Environmental Damage – Review by
UNEP Secretariat 63 (2002), http://www.unep.org/DEPI/programmes/Liability-compen-papers.pdf.
(cataloging major soft-law and treaty instruments relating to environmental liability and synthesizing their
main features); Christophe Bernasconi, Civil Liability Resulting from Transfrontier Environmental
Damage: A Case for the Hague Conference?, Hague Conference on Private International Law,
Preliminary Document No. 8, at 5-16, April 2000, http://www.hcch.net/upload/wop/gen_pd8e.pdf
(cataloging treaties and outlining provisions); Michael Faure & Wang Hui, The International Regimes for
the Compensation of Oil-Pollution Damage: Are they Effective? 12 REV. EUR. COMMUNITY & INT’L.
ENVTL. L. 3 (2003); Michael Tsimplis, Liability and Compensation in the International Transport of
Hazardous Wastes by Sea: The 1999 Protocol to the Basel Convention, 16 INT’L J. MAR. & COASTAL L. 2
(2001); Ralph d’Arge & Allen v. Kneese, State Liability for International Environmental Degradation:
An Economic Perspective, 20 NAT. RESOURCES J. 427 (1980); Sam Blay & Julie Green, The Development
of a Liability Annex to the Madrid Protocol, 25 ENVIR. POLY & L. 1, 24 (1995); Betsy Baker Roben,
Civil Liability as a Control Mechanism for Environmental Protection at the International Level, in
INTERNATIONAL, REGIONAL, AND NATIONAL ENVIRONMENTAL LAW 825-843 (2000); Alfonso Ascencio,
The Transboundary Movement of Living Modified Organisms: Issues Relating to Liability and
Compensation, 6 REV. EUR. COMMUNITY & INT’L. ENVTL. L. 293 (1997).
9 See Robin Churchill, Civil Liability Litigation for Environmental Damage, 12 Y.B. OF INT’L
ENVTL. L. 3, 11, 40 (2001) (noting that the most “obvious” weakness of civil liability treaties “is that
most of the treaties are not in force or widely ratified.”); Anne Daniel, Civil Liability Regimes as a
Complement to Multilateral Environmental Agreements: Sound International Policy of False Comfort? 12
REV. OF EUR. COMM. & INT’L ENVIR. L. 225, 236 (2003) (noting that lack of entry into force “is the
empirical reality that international policy makers must take into account.”). European scholars have done
the most work on civil liability treaties, and the issue of civil liability in international environmental law
has not received much attention in U.S. academic literature.

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international environmental law ever attract more widespread participation, particularly from the
states that host the targeted risk-producing activities?

Departing from the narrower inquiries of prior legal literature, this Article addresses these
questions through a macro-level perspective that draws on regime theory literature from political
science.10 Regime theorists study both the conditions under which nations will cooperate to
form regimes (often using the tools of game theory)11 and the role of regimes, once established,
in shaping state behavior.12 Numerous definitions of a “regime” have been provided in the
literature,13 but here I adopt the definition of the international relations scholar Radoslov
Dmitrov: a regime is “formal intergovernmental policy agreement that involves specific
commitments to policy targets and has entered into force according to the terms of the legal
text.”14 While regime theorists have studied successful environmental regulatory regimes, such

10 This Article does not address a class of torts in which environmental harm originates solely
from a “domestic” company, and plaintiffs seek to sue a foreign parent company on theories of veil
piercing or operational control over the subsidiary. See XUE HANQIN, TRANSBOUNDARY DAMAGE IN
INTERNATIONAL LAW 9 (Cambridge University Press 2003). Suits under the Alien Tort Claims Act, 28
U.S.C. §1350, related to environmental damage often fall under this category. Such suits have a
transnational character, but there is no transboundary movement of pollution, and these suits are largely
unaddressed by the major treaties in the civil liability field. For an excellent article that discusses global
developments in this type of litigation, see Halina Ward, Governing Multinationals: The Role of Foreign
Direct Liability, Royal Institute of International Affairs Briefing Paper No. 18, February 2001.
11 See, e.g., Andrew Kydd & Duncan Snidal, Progress in Game-Theoretical Analysis of
International Regimes, in REGIME THEORY AND INTERNATIONAL RELATIONS (Rittenberger et al eds.
1993). 12 See I. William Zartman, Negotiating the Rapids: The Dynamics of Regime Formation, in
GETTING IT DONE: POST-AGREEMENT NEGOTIATION AND INTERNATIONAL REGIMES 19 (Bertman
Specter & I. William Zartman eds., 2003) (questioning whether “regimes shape state behavior, or do
states simply do what they can and want?”); Stephen Haggard & Beth A. Simmons, Theories of
International Regimes, 41 INT’L ORG. 491, 492 (1987) (addressing whether regimes “matter” as an
“independent influence on state behavior”).
13 The most commonly cited definition is Stephen Krasner’s. Krasner defined a regime as a set
of “implicit or explicit principles, norms, rules, and decision-making procedures around which actors’
expectations converge in a given area of international relations.” See Haggard & Simmons, supra note __
at 493-496 (reviewing definitions of “regime”).
14 See RADOSLAV S. DIMITROV, SCIENCE AND INTERNATIONAL ENVIRONMENTAL POLICY:
REGIMES AND NONREGIMES IN GLOBAL GOVERNANCE 5 (2006). Although other scholars have labeled
more informal arrangements and understandings as “regimes,” in the highly legalistic civil liability field,
it makes sense to view the point at which a treaty enters into force, thereby imposing binding legal
obligations, as the objective measure of when a regime has formed. See Bertram I. Spector & Anna R.
Korula, Problems of Ratifying International Environmental Agreements: Overcoming Initial Obstacles in

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as the regime to combat ozone depletion or the regime governing long-range transport of air
pollution, 15 they have not examined the particular problems of environmental liability regimes.
Yet the tools of regime theory both assist in clarifying the causes of past failures in the civil
liability field and point the way forward to solutions that could enhance the role of tort in
international environmental law.

In this Article, I use regime theory and rationalist assumptions of state behavior to
analyze the two major causes of past failures to build working regimes that enhance the role of
tort in environmental governance. The first cause is protracted conflicts between states that are
net-exporters of pollution (mainly developed states) and states that are net-importers of pollution
(mainly developing states). Numerous liability negotiations have been derailed by disputes
between these blocs of states, and a rational state that is a net-exporter of pollution has little
incentive, absent some inducement or side-payment, to cooperate on a liability treaty that could
lower liability walls and expose its firms to tort suits. This Article models these conflicts and
presents the ratification record of major civil liability treaties to illustrate the extent of the
conflicts between developed and developing states.

The second major cause of regime failure is that the content of the treaties, as they have
emerged from negotiations, has become too onerous to attract widespread adherence. With
stringent provisions mandating cost internalization, mandatory insurance, high liability limits,
and other provisions that require substantial changes in domestic liability law, the treaties have
become unacceptable to both developed and developing countries. This Article is the first to

the Post-Agreement Negotiation Process, GLOBAL ENVIRONMENTAL CHANGE 369, 372 (December 1993)
(explaining that while countries sometimes comply with treaty language without formal ratification,
ratification is the more usual practice and provides a verifiable measure of states’ support for a treaty).
This definition also helps to distinguish mere agreement on a treaty text, which may never enter into
force, from a regime, which has continuing validity in structuring state affairs. See Robert Keohane, The
Analysis of International Regimes, in REGIME THEORY AND INTERNATIONAL RELATIONS 28 (Rittenberger
et al., eds. 1993).
15 See, e.g., COOPERATION UNDER ANARCHY (Kenneth A. Oye, ed., Princeton University Press
1986) (1985); GETTING IT DONE: POST-AGREEMENT NEGOTIATION AND INTERNATIONAL REGIMES
(Bertman Specter & I. William Zartman eds., 2003); Detlaf Sprinz & Tatiana Vaahtoranta, The Interest-
Based Explanation of International Environmental Policy, 48 INTL ORG. 77 (1994); PETER M. HAAS,
SAVING THE MEDITERRANEAN: THE POLITICS OF INTERNATIONAL ENVIRONMENTAL COOPERATION
(1990).

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present new data about states’ reasons for non-ratification. The new data are contained in
responses submitted by states to questionnaires distributed since 2000 by treaty secretariats, in
which states detailed the financial, legal, and administrative reasons why they had rejected civil
liability treaties. The data are noteworthy because they clarify the hurdles that must be overcome
in negotiating future civil liability regimes.

Despite the past record of contentiousness, there is still room for optimism that tort
remedies can be strengthened in international environmental law. The project of negotiating
harmonized tort rules through treaties should not be abandoned, but it must be reformed. I
propose two major reforms (one procedural and one substantive) to move beyond the deadlocked
negotiations of the past.

First, I argue that liability negotiations need to be conducted in a broader context that
links decisions on liability provisions with other substantive treaty issues. In the past, civil
liability negotiations have often been conducted as a follow-up to a larger negotiation on an
initial, primary treaty establishing state-to-state obligations. Complex liability issues are
routinely taken “off the table” in initial negotiations so as not to disrupt consensus, a move that
postpones the most contentious discussions to a later protocol. Removing the teeth from the
primary treaty, however, only serves to sharpen the bite of the subsequent liability negotiations.
To fix this problem, civil liability negotiations should be incorporated into initial negotiations on
a primary treaty, altering the payoff structure for both developed and developing states.
Changing the current practice of postponing and compartmentalizing liability negotiations will
allow more opportunities for linkages and side-deals that will provide options for mutual gain
and smooth the path toward successful implementation of liability treaties.

Second, I argue that advocates of strengthening the role of tort may, somewhat
paradoxically, have to learn to accept treaties containing weaker tort principles (such as lower
limits on liability or lower insurance requirements) to enhance the chances that the treaties might
actually enter into force. The perfect can be the enemy of the good, and a “strong” treaty on
paper is ineffectual if has no chance of attracting wide participation. Lower limits on liability

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Strengthening Tort Remedies in International Environmental Law


could be one bargaining chip offered by developing states to induce the cooperation of developed
states, and regime theory suggests that broader coalitions of support may form if appropriate
terms and conditions can be drafted.

The goal of this Article is not to sketch the substantive terms of an ideal civil liability
treaty. No one-size-fits-all model is appropriate for diverse environmental conditions and
economic activities. Rather, this Article offers general recommendations that could be adapted
to the circumstances of various issue areas within the civil liability field. The two reforms
described above will enhance the prospects for regime formation in the future, moving civil
liability discussions from stasis toward more fruitful bargaining.

This Article begins, in Part I, by outlining the history of high expectations for tort in
international environmental law and the reasons why tort could play a beneficial role in filling
gaps in multilateral environmental agreements. I also outline the ratification record of the major
civil liability treaties and trace the history of failed attempts to build successful civil liability
regimes. In Part II, I explore the causes of past failures, focusing on the conflicting interests of
developed and developing states and the role of the stringent content of the treaties in impeding
ratification. Part II also draws on regime theory to outline a model of negotiations over
transboundary liability rules for environmental damage. Finally, Part III examines in more detail
my suggested reforms for attracting more widespread support for civil liability treaties and
ensuring adequate avenues for redress and compensation for environmental injuries.

I. THE ROLE OF TORT IN INTERNATIONAL ENVIRONMENTAL LAW:
EXPECTATIONS AND REALITY

In an era where international environmental law has become bureaucratized through UN
agencies, multilateral treaties, and massive diplomatic conferences, it is easy to overlook the
centrality of liability and litigation in the origins of the field. In this Part, I will trace the
consistent international interest in tort remedies as a complement to multilateral environmental
agreements (MEAs). I will explore the benefits of tort as a remedy in international
environmental law and explain why the international community has negotiated specific treaties

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to enhance tort remedies, rather than just relying on existing domestic legal procedures. Finally,
I will outline the negotiation and ratification history of civil liability treaties, illustrating the
persistent problems of regime formation that have plagued this area of law.

A. INTERNATIONAL INTEREST IN TORT REMEDIES FOR ENVIRONMENTAL DAMAGE

The concept that cross-border environmental damage is a form of injury entitling the
victim to redress is rooted in both public and private international law. In public international
law, the principal of sic utere tuo16 has played an important role in treaty making and diplomatic
negotiations, even as scholars continue to debate whether it has risen to the level of customary
international law.17 Within private international law, serious accidents, such as the Torrey
Canyon oil spill in the North Sea in 1967, prompted calls for strengthening private tort remedies
for transboundary pollution,18 and issues of compensation and redress were paramount in early

16 The Latin maxim “sic utere tuo ut alienum non laedas” means use your property so as not to
injure the property of another.
17 The principle that no state has the right to use its territory in a manner that causes
environmental injury in another state originated in one of the seminal cases in international environmental
law, the 1941 Trail Smelter arbitration, 3 UN REP. INT’L ARB. AWARDS (1941). The principle was
reiterated in the 1972 Stockholm Declaration, which was adopted by consensus in the first major
multilateral conference on the global environment. See Declaration of the United Nations Conference on
the Human Environment Stockholm Declaration, Principle 22, June 16, 1972, (“states have …the
responsibility to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction.”). The principle was
reaffirmed at the UN Conference on Environment and Development, held in Rio in 1992. See Rio
Declaration on Environment and Development, June 1992, Principle 2, 31 I.L.M. 814 (1992). Whether
this principle actually constitutes customary international law is a matter of considerable debate today.
See, e.g., David Wirth, Teaching and Research in International Environmental Law, 23 HARV. ENVTL. L.
REV. 423, 436 (noting the lack of state practice of refraining from transboundary pollution out of a sense
of legal obligation); Thomas Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931, 950
(1997) (discussing the relationship between Trail Smelter and subsequent development of the soft law of
transboundary pollution); Karin Mickelson, Rereading Trail Smelter in TRANSBOUNDARY HARMS IN
INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION 80 (2006) (arguing that the
unusual circumstances of the Trail Smelter arbitration limit its precedential value). Regardless of how the
principle of Trail Smelter is now categorized under international law, the general idea that transboundary
pollution represents a form of international injury remains central to discussions over liability rules at the
ILC, the UN, and treaty conferences.
18 The Torrey Canyon accident was followed by the adoption, in 1969, of the International
Convention on Civil Liability for Oil Pollution Damage, 973 UNTS 3, 9 I.L.M. 45. See Christophe
Bernasconi, Civil Liability resulting from Transfrontier Environmental Damage: A Case for the Hague

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international environmental negotiations. For example, liability was a central concern of the
1972 Stockholm Declaration on the Human Environment, one of the founding documents of
international environmental law, which called on states to “co-operate to develop further the
international law regarding liability and compensation for the victims of pollution and other
environmental damage….”19

International interest in the use of tort mechanisms to address transboundary
environmental damage has remained high since the early 1970s.20 Echoing the Stockholm
Declaration, the 1992 Rio Declaration (adopted by consensus by more than 175 countries,
including the United States) reiterated the need for states to cooperate “in an expeditious and
more determined manner” to develop “international law regarding liability and compensation.”21
In the late 1990s, the Hague Conference on Private International Law considered drafting a
global convention on civil liability for transboundary pollution.22 In 2002, the UN General
Assembly called on the International Law Commission (ILC) to resume work on codifying
principles of liability for transboundary damage,23 and the ILC issued draft principles in 2004.24

Conference?, Hague Conference on Private International Law, Preliminary Document No. 8, at 7, April
2000, http://www.hcch.net/upload/wop/gen_pd8e.pdf.
19 Declaration of the United Nations Conference on the Human Environment Stockholm
Declaration, Principle 22, June 16, 1972,
http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503.
20 See Anne Daniel, Civil Liability Regimes as a Complement to Multilateral Environmental
Agreements: Sound International Policy of False Comfort? 12 REV. EUR. COMMUNITY & INT’L. ENVTL.
L. 225, 236 (2003).
21 Declaration of the United Nations Conference on Environment and Development Rio de
Janeiro, June 3 - 14, 1992, Principle 13, 31 I.L.M. 814 (1992).
22 See Christophe Bernasconi, Civil Liability resulting from Transfrontier Environmental
Damage: A Case for the Hague Conference?, Hague Conference on Private International Law,
Preliminary Document No. 8, at 1-2, April 2000, http://www.hcch.net/upload/wop/gen_pd8e.pdf.
23 UN General Assembly Resolution 56/82 (2002). In 1978, the ILC had begun a project on
“Liability for Injurious Consequences of Acts Not Prohibited By International Law.” In 1997, it decided
to suspend work on liability in favor of the less controversial issue of prevention of transboundary harm.
24 For a critique of these ILC principles, see Alan Boyle, Globalising Environmental Liability, 17
J. Envtl. L. 3 (2005).

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