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STATE RESPONSIBILITY FOR ENVIRONMENTAL

HARM: DOMINANT TRENDS

INTRODUCTION
This article is an attempt to understand the idea of how states can be held accountable for
harming the environment- whether any system of accountability exists to claim any action. This
article aims to explain this idea with the help of these research questions1. What is the definition of environmental harm and what are its components?
2. What are the landmark international agreements, treaties and principles that have been
formulated to explain the same?
3. What are the famous case laws that have aimed at explaining state responsibility in such
cases in an expanded manner?
This article will try and explain the dominant trends with regards to state responsibility in such
cases.

CHAPTERS
CHAPTER ONE
This chapter aims to explain the idea of environmental harm in some detail.
According to the International Law commission, an internationally wrongful act of a State
happens in the following cases1:
(a) Wrongful conduct that consists of an act or omission is attributable to the State under
international law; and
(b) The said conduct can be termed to be a breach of an international obligation of the State

Professor Christopher Greenwood, Chapter XIII- State Responsibility and Civil Liability for Environmental
Damage Caused by Military Operations, International Law Studies- Volume 69, Protection of Environment During
Armed Conflict (1996), edited by-Richard J. Grunawalt, John E. King and Ronald S. Mc Clain, available at
file:///C:/Users/ADMIN/Downloads/vol-69_XXIII_Greenwood_State_Responsibility_and_Civil_Liability.pdf
(Last visited on 6th September,2015).

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Environmental harm has also been termed as transboundary damage in international law; a
term that explains the notion of negative impact of some activity by a country crossing into
another country through air , water or land in bilateral relations2. Thus, it is to be noted that the
term transboundary signifies that international law will only come into operation in cases
wherein it was seen that there was some agreement between countries regulating environmental
harm and that the activities by one country affected the other environmentally. This also
represents the most basic idea of international law that the usage of domestic territory by one
country should not affect another state in a harmful manner3.
According to several international treaties and agreements, the concept of transboundary
damage includes these four elements4:
a) Fauna, flora, soil, water, and climatic factors
b) Material assets,
c) The landscape and environmental amenity and
d) The interrelationship between the above factors.

CHAPTER TWO
This chapter aims to explain the different agreements under international law, the different
principles that have been formulated and existing statutes that deal with the aforementioned idea.
Initially, international law only came to play when there was any serious damage to the
environment. However, this concept was criticized on the following grounds51- It allowed states to apply the rule only partially by utilizing scientific uncertainty and lack
of proof to avoid culpability.

Xue Hanqin, Transboundary Damage in International Law, PUBLISHED BY PRESS SYNDICATE OF THE
UNIVERSITY OF CAMBRIDGE (2003), available at file:///C:/Users/ADMIN/Documents/2002067377.pdf (Last
visited on 6th September,2015).
3
Jutta Brunnce, The Responsibility of States for Environmental Harm in a Multinational Context-Problems and
Trends, ssrn.com(1993), available at file:///C:/Users/ADMIN/Downloads/SSRN-id1166153.pdf (Last visited on
6th September,2015).
4
lawteacher.net, The Responsibilities of State for International Harm International Law essay, available at
http://www.lawteacher.net/free-law-essays/international-law/the-responsibility-of-states-for-environmental-harminternational-law-essay.php#ftn24 (Last visited on 6th September,2015).
5
Id., note 3.

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2- This rule failed to protect the global common spaces and environ mental resources, i.e.
resources commonly shared by different nation states by keeping them out of the reach of
jurisdiction of states.
3- The concept of state responsibility is a traditional rule, its enforcement depends on the
limitations of the legal system; i.e. it cannot be enforced till assented to by the states in
question, thus ensuring that culpable states may slip away.
The principle of protecting the environment works on the ideas of mitigation and
prevention; i.e. while countries will aim to prevent environmental harm if that does not
materialize countries should aim at mitigating or reducing the hazardous after-effects6.
There are two types of obligations of state for causing environmental harm71. Primary- obligation that come up for violating obligations under treaties, agreements and
statues
2. Secondary- legal consequences that come up for violating primary rules.
If various UN organized summits are analyzed81. The 1972 Stockholm declaration On Human Environments principle 22 was able to figure out
the gaps and called for state cooperation in developing further the international law to fix
liability and compensate victims of pollution and other environmental damage caused by
activities within the jurisdiction or control of such states and also extend it to areas beyond their
jurisdiction
2. The 1982 world charter for nature had not directly discussed the need for analyzing such
liability, but it recognized the need for creation of a system of redressal of individual and
community grievances and rehabilitation of the environment to its pre-harmed status. Thus, this
statute emphasized on the need for creating a system of ensuring both justice for the ones who
suffered and also helping in recovery of the environment.
3. The Rio declaration of 1992 also lamented the slow progress with regards to the
aforementioned subject. It talked about creating necessary municipal rules to back up the
international law principles. Thus, the Rio declaration recognized the fact that international
norms were of little or no help till and until they were backed up by adequate municipal statutes.
The following articles of ILC can also be termed to be related with environmental protection in
some ways96

dhruvesh1989, Changing dimension of environmental law, legalservicesindia.com, May14,2010, available at

http://www.legalservicesindia.com/article/article/changing-dimension-of-environmental-law-160-1.html (Last
visited on 6th September, 2015).
7
Id., note 7.
8
Supra note 4.
9
Id., note 8.

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i.

ii.

iii.

Article 1 of the ILC articles on responsibility of states for internationally wrongful acts
that talks about fixing responsibility on nation states if any of their actions have a
transboundary impact- something that can be extended to actions of environmental harm
that may aggravate via flora, fauna, air, water or land among other factors.
Article 48 of the ILC articles on responsibility of states for internationally wrongful acts
explains an idea under which, a couple of nation states that are signatories to some
common treaty or agreement can use the same to invoke punitive measures against any of
the member for violative activities, even if all of them have in no way been directly
affected by the same.
Article 194 of the ILC articles on responsibility of states for internationally wrongful acts
also talks about pollution on high seas and the measures that can be likewise taken.

One of the principal reasons, why no standardized rule has come into being with regards to
environmental harm is because countries all over the world have preferred keeping their
sovereign and economic interests above their responsibility towards maintaining environmental
standards and thus not followed international law to the hilt. As a result the traditional idea of
standard of due diligence and efforts to create a strict liability regime has not worked as
international customary law10.

CHAPTER THREE
This chapter aims to explain some of the important case laws with respect to environmental harm
and state responsibility1) Trail Smelter Arbitration (USA V Canada) Arbitral Trib., 3 U.N. Rep. Intl Arb. Awards
1905 (1941) - A smelting facility in Canada released fumes of Nitrogen Oxide that
corroded some buildings in Washington. As the facility was located in Canada, the
Canadian government was held liable based on the principle that the duty to protect other
states against harmful acts by individuals from within its jurisdiction at all times is the
responsibility of a state11.
2) Case concerning Pulp mills on river Uruguay , (Argentina V Uruguay) ORDER 13 VII
O6, 2010- This case dealt with the dual topics of whether a particular convention
accorded jurisdiction and if compensation was possible for causing environmental harm.
The court concluded that article 7 of the Montevideo Convention accorded jurisdiction in
this case and that in this case, Argentina was under an obligation to conduct

10
11

Supra note 3.
Trail Smelter Arbitration (USA V Canada) Arbitral Trib., 3 U.N. Rep. Intl Arb. Awards 1905 (1941).

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Environmental Impact Assessment (EIA), but no compensation what so ever was to be

paid in the absence of express provisions12.
3) Gabkovo - Nagymaros (Hungary/ Slovakia) 1997 I.C.J. 7, reprinted in 37 I.L.M. 162
(1998)- Hungary was the petitioner and challenged that erstwhile Czechoslovakia
violated environmental rules to construct a dam; which was contested by
Czechoslovakias successor state- Slovakia. It was concluded that states shall develop
and protect international watercourses in a just and reasonable manner13.

CONCLUSION
Thus, in conclusion, I would like to state the following
1- The concept of state responsibility for environmental harm is an up and coming notion of
holding states accountable that works on preventing and mitigating such harm by
enforcing primary and secondary obligations.
2- Several articles of the ILC and major UN summits like the Stockholm declaration, Rio
declaration etc have tried to build principles and concepts to hold states accountable.
There have also been some major cases like Pulp mills case etc.
3- However, a major problem in enforcing such measures has been the reluctance of states
to be held accountable for their actions and upholding their sovereign and economic
rights.

BIBLIOGRAPHY
LIST OF CASES
1- Gabkovo - Nagymaros (Hungary/ Slovakia) 1997 I.C.J. 7, reprinted in 37 I.L.M. 162
(1998).
2- Trail Smelter Arbitration (USA V Canada) Arbitral Trib., 3 U.N. Rep. Intl Arb. Awards
1905 (1941).
3- Case concerning Pulp mills on river Uruguay , (Argentina V Uruguay) ORDER 13 VII
O6, 2010.

12
13

Case concerning Pulp mills on river Uruguay , (Argentina V Uruguay), ORDER 13 VII O6, 2010.
Gabkovo - Nagymaros (Hungary/ Slovakia), 1997 I.C.J. 7, reprinted in 37 I.L.M. 162 (1998).

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BOOKS/JOURNALS/ARTICLES REFERRED TO
1- Richard J. Grunawalt, John E. King and Ronald S. Mc Clain, Chapter XIII- State
Responsibility and Civil Liability for Environmental Damage Caused by Military
Operations ,International Law Studies- Volume 69 (Protection of Environment During
Armed Conflict ,1996)
2- Xue Hanqin, Transboundary Damage in International Law , PRESS SYNDICATE OF
THE UNIVERSITY OF CAMBRIDGE (CAMBRIDGE UNIVERSITY PRESS, 2003).

ONLINE BLOGS/WEBSITES REFERRED TO1- Jutta Brunnce, The Responsibility of States for Environmental Harm in a Multinational
Context-Problems
and
Trends
(1993)
ssrn.com
(file:///C:/Users/ADMIN/Downloads/SSRN-id1166153.pdf ) Last accessed on 6th
September, 2015.
2- dhruvesh1989, Changing dimension of environmental law, (May14,2010),
legalservicesindia.com, , http://www.legalservicesindia.com/article/article/changingdimension-of-environmental-law-160-1.html (Last visited on 6th September, 2015).
3- The Responsibilities of State for International Harm International Law
essay.lawteacher.net,
http://www.lawteacher.net/free-law-essays/international-law/theresponsibility-of-states-for-environmental-harm-international-law-essay.php#ftn24 (Last
visited on 6th September, 2015).

Submitted by Saurabh Kumar,

3rd Year, WBNUJS