The issue of liability and redress with regard to transboundary damage to biological diversity was one of the themes on the agenda during the negotiation of the Convention on Biological Diversity. The negotiators were, however, unable to reach any consensus regarding the details of a liability regime under the Convention and consequently postponed the consideration of the issue to a future date. Thus, paragraph 2 of Article 14
of the Convention provides that:
"the Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter."
The scope of international environmental treaty law has greatly expanded since the 1972 Stockholm Conference on the Human Environment often regarded as the watershed in the global environmental awakening. This process has, however, not been accompanied by any significant developments in the legal rules governing international liability and redress for environmental damage. The appeal to States in both the 1972 Stockholm Declaration and the 1992 Rio Declaration to cooperate to develop further the international law regarding liability and compensation for environmental damage have met only with limited response to-date.
It should be noted that the legal consequences of environmental harm cover both liability for harm resulting from activities not prohibited by international law and state responsibility for violation of international law.
In this regard, the UN International Law Commission (ILC) in 2001 concluded work on its Articles on the “Responsibility of States for internationally wrongful acts” and presented its work to the General Assembly, reiterating that as a matter of customary international law, breach of an international obligation gives rise to an independent and automatic duty to cease the wrongful act and to make reparation. In its resolution 56/83 of 12 December 2001, the United Nations General Assembly took note of the Articles and commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action. Also in 2001, the ILC completed the second reading of the Draft Articles on the topic “International liability for injurious consequences from acts not prohibited by international law (prevention of transboundary damage from hazardous activities)” and recommended to the UN General Assembly the elaboration of a convention on prevention of transboundary damage from hazardous activities. In 2004, the ILC adopted on a first reading a set of eight “Draft principles on the allocation of loss in case of transboundary harm arising from hazardous activities.” The UN General Assembly by its resolution 59/41 of 2December 2004 called upon Governments to provide their comments and observations thereon. At its fifty-eight session, the ILC completed the second reading of those draft principles and they were submitted to the General Assembly as a part of the ILC's report covering that session (A/61/10).
In the negotiation of several multilateral environmental agreements, the development of liability and compensation regimes has often been postponed to some future date (1)
. For this reason treaty regimes concentrate on other means to implement international obligations. It can be argued, however, that an international environmental liability and redress regime is an essential mechanism for the enforcement of the environmental policies and standards established through multilateral treaties. In this respect, such a regime is seen to serve several important functions. First, it is an instrument to promote compliance with international environmental norms and the implementation of both the precautionary approach and the prevention principle. Generally, the threat of incurring liability and the potential burden of redress measures acts as an incentive towards more precautionary approaches to economic activities resulting in the avoidance of environmental risk and damage. Secondly, it serves a reparative function by shifting the costs of environmental damage from society at large to the person or persons responsible for the activity causing damage. By allocating responsibility for repairing the damage caused by an act or activity, a liability and redress regime serves as an instrument for the implementation of the polluter pays principle. Lastly, holding the author of environmental harm responsible for redressing it may act as a deterrent regarding environmentally harmful activities or at least lead to investment in preventive measures. It is an incentive to States and non-State actors to avoid environmentally harmful conduct.
The issue of liability and redress for damage resulting from the transboundary movements of living modified organisms was also one of the themes on the agenda during the negotiation of the Biosafety Protocol. Article 27 of the Protocol thus provides that the COP-MOP shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from the transboundary movements of living modified organisms. A parallel process was initiated in the context of the Cartagena Protocol on Biosafety
by the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol (COP-MOP). The process
resulted in the adoption by the COP-MOP of the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety
on 16 October 2010.
In decision X/9
on the multi-year programme of work of the Conference of the Parties for the period 2011-2020 and periodicity of meetings, the Conference of the Parties decided its twelfth meeting in 2014 or early 2015 could address liability and redress.
See, for example, the Convention on Long-range Transboundary Air Pollution, Geneva, 1979; the UN Convention on the Law of the Sea, Montego Bay, 1982; the Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Basel, 1989; and the Cartagena Protocol on Biosafety, Montreal, 2000.