Chapter 2: State

Responsibility and
Environmental Regulation

Chapter Outline
State responsibility
Doctrine of imputability
Nonimputable Acts
Fault and Causation

Standard of Care
The National Standard of Care
The International Standard of Care
Expropriation
Denial of Justice

Chapter Outline (contd)

Objections
Lack of Standing
Lack of Nationality
Lack of a Genuine Link
Failure to Exhaust Remedies
Other Objections

Relief
Insurance
Private Insurers
National Investment Guaranty Programs
Multilateral Investment Guaranty Programs

Chapter Outline (contd)

Environmental protection
Regulation of Pollution
Protection of Natural Resources
Liability for Environmental Damage

Introduction
For a long time, it has been a tenet
of international law that a state that
causes an injury to a foreign national
is responsible to the nationals state
(but not to the national) for the
harm done.
Rationale: an injury to a states
national is an injury to that state

Introduction contd
Key questions:
When is a state responsible?
What standard of responsibility?
What defenses states have against
allegations of mistreatment?
What steps aliens and foreign businesses
can take to minimize potential losses?
Insurance programs?

What about state responsibility towards

pollution?

A. State Responsibility
Rule to establish responsibility for an
injury to an alien or foreign business:
1) conduct consisting of an action or
omission .. attributle to the State under
international law, and
2) it must constitute a breach of
international obligation of the State

A. State Responsibility
contd
Doctrine of Imputability a state is only
responsible for actions that are attributable to it.
1) acts within the scope of officals authority and
2) acts outside their scope of authority if the state
provided the means or facilities to accomplish the act

State responsibility
Liability of a state for the injuries that it causes to
aliens and foreign businesses

To impute:
To attribute something done by one person, such as an
act or crime, to another
Case 2-1: Sandline International Inc. v. Papua New Guinea

A. State Responsibility
contd
Nonimputable Acts
Not responsible for the acts of private
persons, acts of officials of other states
or international organizations, or acts of
insurrectionaries within their own
territories
Case 2-2, p. 61 Home Missionary Society
Case

A. State Responsibility
(contd)
Terrorism and docs
The sustained clandestine use of violence
for a political purpose
Case 2-3: Flatow v. Iran
UN Instruments

Notes:

Subject matter jurisdiction

Extrajudicial killing
State sponsored terrorism
Fault and causation

A. State Responsibility
(contd)
Fault and Causation
Most case law/writers a country is
responsible for injuries regardless of
fault
Therefore, causation is used.
Did the act/omission of state produce an
effect, result or consequence that caused
the injury
Note on Remoteness

B. Standard of Care
National standard of care
Doctrine that a state must treat aliens
the same way that it treats its own
nationals.

International standard of care

Expropriation
Western viewpoint v. developing
countries
See cases 2-4, 2-5 and 2-6

B. Standard of Care (contd)

Denial of Justice
When there is a denial, unwarranted delay
or obstruction of access to courts, gross
deficiency in the administration of judicial or
remedial process, failure to provide those
guarantees which are generally considered
indispensable to the proper administration of
justice, or a manifestly unjust judgment,
An error of a national court which does not
produce a manifest injustice is not a denial of
justice.

B. Standard of Care (contd)

Denial of Justice (contd)
Application of National Standard
advocates say must emphasize that
notions of justice are relative to each
society and that whether or not there
has been a denial of justice requires
an understanding of the judicial system
of the society where the case arose

B. Standard of Care (contd)

Denial of Justice (contd)
Case 2-7: Chattin v United Mexican
States
Take a few minutes to familiarize yourself
with the case
Take note of the Casepoint and the
dissenting opinion

What are your feelings about this

case?
Note: general claims commission
1927
US v Mexico

C. Objections
Lack of Standing
Objection that may be made to an international
tribunals exercise of jurisdiction when a plaintiff
is not qualified to appear before the court.

Lack of nationality
Objection that may be made to an international
tribunals exercise of jurisdiction when the state
bringing suit is doing so on behalf of a person
who is not a national of that state
Calvo Clause:
Who has the right to waive a right?
birth certificate story

C. Objections (contd)
Lack of a Genuine Link
Objection that may be made to an international
tribunals exercise of jurisdiction when there is
no real and bona fide relationship between the
state bringing the suit and the person on whose
behalf the suit is brought.

Failure to exhaust remedies

Objection that may be made to an international
tribunals relief from the defendant state
Case 2-8: The M/V Saiga Case (Merits)

C. Objections (contd)
Other objections
Laches
Negligent delay in asserting a right or claim
Note: principle of equity

Dirty hands
The plaintiff took inappropriate steps in
attempting to recoup a loss prior to bringing
the claim

D. Relief
Restitution in kind
in kind

Satisfaction
Honor returned to state

Compensatory damages
money

E. Insurance
Insurance:
The contractual commitment by an
insurer to indemnify an insured against
specific contingencies and perils
Discussion on insurance:

E. Insurance (contd)
Private Insurers
See list on page 87

National investment guarantee

programs
Example: US Overseas Private
Investment Corporation (OPIC)
See Exhibit 2-1, page 88

E. Insurance (contd)
Expropriation
Definition

Creeping expropriation
See 3 reasons for LDCs, p. 89
Expropriation through a series of acts that
individually might be seen as
administrative actions or general health,
safety, or welfare measures undertaken by
the government which .
See OPIC definition p. 89

E. Insurance (contd)
OPIC (contd)
Currency inconvertibility
Political violence
Wars, revolutions, civil strife, terrorism

Multilateral investment guarantee

programs
World Bank
Multilateral Investment Guarantee Agency (MIGA)
Similar to national programs, oversight by capital
exporting and capital importing states

F. Environmental Protection

Stockholm Declaration
Rio Declaration
UNFCCC
Kyoto Protocol
Agenda 21
Europe 2020, Europe 2050
Precautionary approach
States should not delay in taking action to correct a threat of
serious or irreversible damage to the environment merely because
there is a lack of scientific certainty that injury will result.
States should TAKE ACTION to correct a THREAT of serious or
irreversible damage to the environment even if there is scientific
uncertainty that injury will result.

F. Environmental Protection (contd)

Regulation of Pollution
Sectoral approach regulating particular
sectors of the environment
Product approach regulating particular
pollutants

F. Environmental Protection (contd)

Regulation of Pollution (contd)
Sectoral approach:
Marine Pollution UNCLOS (see Article 194(1), p.
92)
Main duties: minimize the:
1) release of toxic, harmful of noxious substances from
land based sources
2) pollution from vessels
3) pollution from the installations and devices used in
the exploration or exploitation of the seabed and its
subsoil
4) pollution from other installations and devices
operating in the marine environment

F. Environmental Protection (contd)

Regulation of Pollution (contd)
Sectoral approach (contd)
Marine Pollution (contd) - Other duties
1) not to pollute the environment of neighboring states
2) not to transfer damage or hazards from one area to
another or to transform them from one type of pollution to
another
3) not to intentionally or accidentally introduce alien or
new species into the marine environment
4) to notify other affected states when the marine
environment is in imminent danger of being damaged or
has been damaged by pollution
5) to monitor and assess the risks and effects of pollution
and to publish the results of those studies

F. Environmental Protection (contd)

Regulation of Pollution (contd)
Sectoral approach (contd)
Marine Pollution (contd) - Required actions: must
adopt laws and regulations and take other
measures to prevent, reduce, and control pollution
Once adopted, these rules may be enforced by:
1) flag states with regard to vessels flying their flag
2) port states concerning vessels voluntarily within their
ports
3) coastal states as to vessels navigating within their
territorial sea or exclusive economic zone or vessels that are
found to be dumping materials onto their continental shelf

F. Environmental Protection (contd)

Regulation of Pollution (contd)
Sectoral approach (contd)
Marine Pollution (contd) Disputes
Disputes between states to be resolved by
negotiation or mediation
Either party may submit the dispute to
International Tribunal for the Law of the Sea
(ITLOS)
Established by convention
ICJ
Or mutually agreed arbitration tribunal
See Case 2-10, p. 93

F. Environmental Protection (contd)

Regulation of Pollution (contd)
Sectoral approach (contd)
Climate and Air Pollution United Nations
Framework Convention on Climate Change
(UNFCCC)
Multilateral convention adopted in 1992 and in
force since 1994. It seeks to stabilize and diminish
greenhouses gases in the atmosphere
Set to address two main political problems
1) how to distribute the burden of reducing
emissions among different countries
2) how to deal with scientific uncertainty

F. Environmental Protection (contd)

Sectoral approach (contd)
Set to address two main political problems (contd)
1) how to distribute the burden of reducing emissions
among different countries (contd)
Equity and Common but differentiated responsibilities
Recognizes that industrialized states have historically been the
main sources of the problem and have more resources to address
it
And developing countries are more vulnerable to its adverse
affects and have fewest resources to address problem
Requires industrialized countrie to take the lead in modifying long
term emission traneds, and it calls on the richest countries to
provide financial and technological resources to help developing
countries stabilize their greenhouse gas emissions

F. Environmental Protection (contd)

Sectoral approach (contd)
Set to address two main political problems
(contd)
2) how to deal with scientific uncertainty (contd)
Adoption of the precautionary principle/approach
See earlier definition
where there are threats of serious or irreversible
damage, lack of full scientific certainty should not
be used as a reason for postponing such
measures

Divides states into two main groups Developed

(Annex I countries) and others (non-Annex I
countries)

F. Environmental Protection (contd)

Sectoral approach (contd)
Both groups have general obligations

1)
2)
3)
4)
5)
6)

Annex I to bring GHGE to 1990 levels by

yr 2000

F. Environmental Protection (contd)

Sectoral approach (contd)
Kyoto Protocol
Supplemental agreement to the UNFCCC
(1997).
Requires Annex I countries to reduce GHGE
by 5.2% of 1990 levels

See reading 2-1, p. 100

F. Environmental Protection (contd)

Product regulations
Toxic Waste
1989 Basel Convention on the Control of
Transboundary Movements of Hazardous
Waste and Their Disposal (in force 1992)
Forbids the export of hazardous wastes and other
wastes to nonstates parties and to states parties
unwilling or incapable of safely accepting them,
and it forbids states parties to import wastes
unless they can safely manage them.
States must take appropriate actions to
minimize their own production of hazardous wastes

F. Environmental Protection (contd)

Product regulations (contd)
Nuclear Materials
International Atomic Energy Agency (IAEA)
Primary IGO responsible for supervising the use of
fissionable materials
Responsible for setting up safety standards for the
protection of health and for minimizing injury to life and
property
Promotes the peaceful use of nuclear material
Ensure nuclear materials and assistance are not misused
Overseeing the nuclear devices and materials of certain
non-nuclear weapons states not diverted to military uses

See ongoing work with Iran and North Korea

F. Environmental Protection (contd)

Protection of Natural Resources
World Charter for Nature
Principles
1)
2)
3)

1992 Rio Conference Convention on Biological

Diversity

Identify and monitor

Develop strategies, plans and programs for
Undertake EIA of .
Calls upon states to make environmental protection an
integral part of the development process and not to consider
the two in isolation from each other

F. Environmental Protection (contd)

Protection of Natural Resources
Liability for Environmental Damage
Nuclear material
Marine oil pollution