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Title effectiveness of sanctions in international environmental law
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Article by divya rathor
Category Law Student
Content

Effectiveness of sanction in international environmental law

 

Introduction

 

Effectiveness of sanction in international environmental law is a topic of   debate in recent world of modernization, globalization, liberalization and privatization. With the advent of  the technology,  the mother nature has been exposed to risk of environment degradation, so it has become necessary to look out for sanctions to control the menace and also to check the effectiveness of the sanctions.

The polluter pays  principle  or PPP, as one of the basic tenets of the concept of sustainable development provides for effective sanction for environmental law. According to the principle the polluter has to pay compensation for the loss done to persons, loss done to the environment as well as for the restoration cost of the environment. The principle has proved itself to be effective in protecting the environment. The recent application of the principle is found in Gulf of Mexico, oil Spill case.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, or The London Dumping Convention,  Marpol 73/78, STCW CONVENTION, 1978, Convention on Liability for Damage Resulting from Activities Dangerous to the Environment also provide for some what effective sanctions of international environmental law.

The case of Nauru and Nuclear testing by USA in Marshall Islands are the examples of case where the sanctions imposed for wrong done to the environment are effective but  have been criticized as inadequate.

 

 

 

 

 

POLLUTER PAYS PRINCIPLE-

If anyone intentionally spoils the water of another ... let him not only pay damages, but purify the stream or cistern which contains the water..."  - Plato.

The polluter pays principle is “the principle according to which the polluter should bear the cost of measures to reduce pollution according to the extent of either the damage done to society or the exceeding of an acceptable level (standard) of pollution”. Although the principle’s precise legal definition, for the purposes of practical application, remains elusive, the core of the principle derives from the fundamental proposition that it is the parties who generate pollution, not others, nor indeed the government, who should bear the cost of abatement.

Polluter Pays Principle has become a popular catchphrase in recent times. 'If you make a mess, it's your duty to clean it up'- this is the main basis of this slogan. In environmental law, the 'polluter pays principle' does not refer to "fault." Instead, it favors a curative approach which is concerned with repairing ecological damage. It's a principle in international environmental law where the polluting party pays for the damage done to the natural environment. In international environmental law it is mentioned in Principle 16 of the Rio Declaration on Environment and Development. The polluter pays principle ( P.P.P. as it is generally reffered as) is one of the basic tenets of the concept of the sustainable development. Polluter pays principle is also known as extended polluter responsibility (EPR).

EPR or PPP seeks to shift the responsibility dealing with waste from governments (and thus, taxpayers and society at large) to the entities producing it.

EVOLUTION OF THE PRINCIPLE-

 The PPP as a guiding principle across countries became necessary because some countries faced complaints by national firms about rising costs and a loss of international competitiveness following a national implementation of the PPP within their borders. The first major reference to the PPP appeared 1972 in the OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies (henceforth called OECD Guiding Principles). But the concept was probably first described in length and depth by the Swedish government in 1975.

 

OECD defines EPR as:

a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production process itself, and downstream impacts from the use and disposal of the products. Producers accept their responsibility when designing their products to minimise life-cycle environmental impacts, and when accepting legal, physical or socio-economic responsibility for environmental impacts that cannot be eliminated by design”.

In 1989, the OECD suggested extending the PPP in order to cover the costs of accident prevention and to internalise the environmental costs caused by accidents. In 2001, the OECD Joint Working Party on Agriculture and Environment stated that according to the PPP

"... the polluter should be held responsible for environmental damage caused and bear the expenses of carrying out pollution prevention measures or paying for damaging the state of the environment where the consumptive or productive activities causing the environmental damage are not covered by property rights”.

 

One year later, the European Community followed the example of the OECD Principles from 1972 by adopting the first Environment Action Programme (EAP).

 Since 1987, the PPP has been part of European Law. It is included in Article 174 of the EU Treaty (1997). Since 1990, when the International Convention on Oil Pollution Preparedness, Response and Co-operation was agreed upon by the International Maritime Organization (IMO), the PPP has been acknowledged as a " ...general principle of international environmental law."

 In 1992, the Rio Declaration (UNCED) included the PPP in Principle 16:

 "National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution with due regard to public interest and without distorting international trade and investment."

Since 1992 the principle has been applied widely by the courts all over the world as one of the most essential principle of international environmental law.

 

THE PRINCIPLE AS A SANCTION IN INTERNATIONAL ENVIRONMENTAL LAW.

 The principle in entireity, deals with the compensation mechanism for the protection of the environment. The principle is based on the fundamental principle that one who does a wrongful act and hampers others must pay the damages in form of compensation. According to the principle, one who pollutes the environment must compensate for the same. The principle not only provides compensation for the pollution caused but it also provides for the compensation for restoration of the environment. Since the principle is based on monetary   compensation so it works as an effective sanction and has a detterent effect. It internalises the cost of waste disposal into the cost of the product, theoretically meaning that the producers will improve the waste profile of their products, thus decreasing waste and increasing possibilities for reuse and recycling.

The principle has curative as well as  preventive effect in environmental law. The  principles by stressing on the curative dimension represents a step further from the traditional concept of damage arising, only out of  unauthorised acts. Instead of simply obliging the polluter to pay for restoration carried out by the public authorities, it also ensures that victims could obtain compensation from polluters, including compensation for damage resulting authorized activities. 

 According to this principle polluters must pay damage costs as well as control costs. This allows incentive charging, making polluters pay in net terms for their acceptable effluent discharges. The incentive charging instrument has the advantage that it motivates appropriate polluter behaviour, for example inspiring, the search for cost-effective and less polluting technologies over the long term .

One variant of the polluter pays principle which is the most effective  sanction is the introduction of the “extended producer’s responsibility”, which includes a responsibility to collect and recycle used goods. The general idea is that if producers in the early stages of the production process are responsible and legally liable, they will have an incentive to minimise recycling costs. This obviously fits with the idea that waste should preferably be recycled instead of burned or discharged in landfills. The costs may be reduced through the choice of raw materials, design, processing, or composition of the goods. Dangerous metals and plastics may be substituted; welded parts may be applied so as to make dismantling easy, and so on.  This principle is an effective sanction as most of the states in order to evade this extended liability are trying to produce goods that are biodegradable or are can be easily recycled.

Another most commonly recognised variant of the polluter pay principle is the concept of taxing pollution . In this concept government is required to add a tax to the cost of production, for example, on emissions, harmful goods, gasoline or cars, so that the prices reflect the social marginal costs . This extra financial burden on the producers is acting as an effective sanction becaause producers are opting for greener and less polluting techniques to avoid the extra taxes.

 

The polluter pays principle also underpins environmental policy such as an ecotax, which, if enacted by government, deters and essentially reduces the emitting of greenhouse gas emissions. Some eco-taxes underpinned by the polluter pays principle include: the Gas Guzzler Tax, in US, Corporate Average Fuel Economy (CAFÉ)- a “polluter pays” fine. The U.S. Superfund law requires polluters to pay for cleanup of hazardous waste sites, when the polluters can be identified.

 

 

EFFECTIVENESS OF THE PRINCIPLE

The principle has proved itself  to be an effective measure in checking environmental pollution across the globe. Everywhere the states have started applying the principle in their municipal legal system thereby leading to adoption of  greener and safer techniques of production in order to avoid the evils of compensation.

 The EU came under increasing pressure for a greener Europe and to protect environmental assets such as rivers, lakes, forests and animal species for their own, intrinsic value, and by reason of the fact that states share common seas, rivers and an atmosphere, adopted a White Paper on Environmental Liability on 9 February 200041, the main objective of which was to “cover activities that bear an inherent risk of causing damage” and to ensure the “restoration of the environment” after damage and it also explored how the polluter pays principle can best be applied .

Courts in US have also applied the principle in the municipal arena.  In a recent incident, oil spill in Mexico, popularly known as Deepwater Horizon oil spill (also referred to as the BP oil spill, the Gulf of Mexico oil spill, the BP oil disaster, or the Macondo blowout), which is the largest oil spill in the history of world which flowed for three months in 2010 and caused damage to both life and environment. The spill caused extensive damage to marine and wildlife habitats and to the Gulf's fishing and tourism industries Skimmer ships, floating containment booms, anchored barriers, sand-filled barricades along shorelines, and dispersants were used in an attempt to protect hundreds of miles of beaches, wetlands, and estuaries from the spreading oil. Scientists also reported immense underwater plumes of dissolved oil not visible at the surface as well as an 80-square-mile (210 km²) "kill zone" surrounding the blown well. In January 2011 the White House oil spill commission released its final report on the causes of the oil spill. They blamed BP and its partners for making a series of cost-cutting decisions and the lack of a system to ensure well safety. They also concluded that the spill was not an isolated incident caused by "rogue industry or government officials", but that "The root causes are systemic and, absent significant reform in both industry practices and government policies, might well recur".  The BP was held liable on the basis of the polluter pays principle.After its own internal probe, BP admitted that it made mistakes which led to the Gulf of Mexico oil spill. In June 2010 BP set up a $20 billion fund to compensate victims of the oil spill. To July 2011, the fund has paid $4.7 billion to 198,475 claimants. In all, the fund has nearly 1 million claims and continues to receive thousands of claims each week.

Indian practise also reveals the effective implementation of the principle.  "The Polluter Pays" principle has been held to be a sound principle by this Court in Indian Council for Enviro - Legal Action v. Union of India. In this case the number of private companies operated as chemical companies were creating hazardous wastes in the soil, henceforth, polluting the village area situated nearby, and they were also running without licenses, so an environmental NGO, filed writ petition under article 32 of the COI, which sought from the court to compel SPCB and CPCB to recover costs of the remedial measures from the companies.  The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.” The "Polluter Pays" principle as interpreted by the Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

In VelloreCitizen'scase, the Hon’ble Apex Court held that:
“The precautionary principle and the polluter pays principle have been accepted as part of the law of the land.”

In M.C.Mehta V. UOI,  SC reffered the case of Enviro-Legal Action and Vellore Citizens case and ordered the Calcutta tanneries to relocate and pay compensation for the loss of ecology/environment of the affected areas and the suffering of the residents.

In the Kamalnath's case, court by considering the PPP as the law of the land, ordered that:
"It is thus settled by this Court that one who pollutes the environment must pay to reverse the damage caused by his acts."

 

conclusion-

overall, analysis of the principle reveals that where ever the principle has been applied with it’s full spirit it has proved itself to be an effective sanction in international environmental law.

 

LONDON DUMPING CONVENTION, 1972

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, commonly called the "London Convention" or "LC '72" and also abbreviated as  LONDON Dumping, is an agreement to control pollution of the sea by dumping and to encourage regional agreements supplementary to the Convention. It covers the deliberate disposal at sea of wastes or other matter from vessels, aircraft, and platforms. It does not cover discharges from land-based sources such as pipes and outfalls, wastes generated incidental to normal operation of vessels, or placement of materials for purposes other than mere disposal, providing such disposal is not contrary to aims of the Convention. The main objective of the London Convention is to prevent indiscriminate disposal at sea of wastes that could be liable for creating hazards to human health; harming living resources and marine life; damaging amenities; or interfering with other legitimate uses of the sea. The convention required the state parties to follow the norms given by the convention before dumping the wastes in the sea. The failure to follow the norms did not attract that strong a sanction so a protocol was adopted in 1996 for effective implementation of the Convention.

The protocol to the Convention-

On November 17, 1996, the "1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972"  was adopted which was to replace the 1972 Convention, subject to ratification. In line with UNCED's Agenda 21, the 1996 Protocol reflects the global trend towards precaution and prevention with the Parties agreeing to move from controlled dispersal at sea of a variety of land-generated wastes towards integrated land-based solutions for most, and controlled sea disposal of few, remaining categories of wastes or other matter. One of the most important achievement of the 1996 Protocol is the codification of the "precautionary approach" and the "polluter pays principle." Reflecting these principles, the Protocol embodies a major structural revision of the Convention—the so-called "reverse list" approach. Now, instead of prohibiting the dumping of certain (listed) hazardous materials, the Parties are obligated to prohibit the dumping of any waste or other matter that is not listed in Annex 1 ("the reverse list") of the 1996 Protocol. Dumping of wastes or other matter on this reverse list requires a permit. Parties to the Protocol are further obligated to adopt measures to ensure that the issuance of permits and permit conditions for the dumping of reverse list substances comply with Annex 2 (the Waste Assessment Annex) of the Protocol. The substances on the reverse list include dredged material; sewage sludge; industrial fish processing waste; vessels and offshore platforms or other man-made structures at sea; inert, inorganic geological material; organic material of natural origin; and bulky items including iron, steel, concrete and similar materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations with no land-disposal alternatives. In addition, the 1996 protocol prohibits altogether the practice of incineration at sea, except for emergencies, and prohibits the exports of wastes or other matter to non-Parties for the purpose of dumping or incineration at sea. The failure to comply with the norms provided by the protocol attracts sanction in form of  compensation on the basis of the polluter pays principle.

EFFECTIVENESS OF THE CONVENTION-

The reports on the effectiveness of the Convention have been mixed. Since its entering into force in 1975, the Convention has provided a framework for international control and prevention of marine pollution within which the Contracting Parties have achieved continuous progress in keeping the oceans clean. But throughout 1980s and 1990s, extensive efforts have been undertaken to beef up the text of the Convention with more stringent provisions.

 Among its milestones are the 1993 ban on ocean disposal of low-level radioactive wastes and the resolutions to end the dumping and incineration of industrial wastes. The Convention is implemented in the United States through Title I of the Marine Protection, Research, and Sanctuaries Act (MPRSA) which directs that implementing regulations are to apply binding requirements of LC to the extent that this would not relax the MPRSA.

 But the 1996 Protocol has effectively moved the scope of the original London Convention landwards, relating it to the policy and management issues of land as well as sea wastes disposal. Indicative for this shift are such elements as the codification of the precautionary approach and the establishment of requirements such as the "waste prevention audit," the identification and control of the sources of contamination for certain materials, and the collaboration with relevant local and national agencies that are involved in point and non-point source pollution control.  The protocol has ensured the compensation for breach of the convention and has attempted at ensuring  it’s effectiveness.

Conclusion-

The Convention though provided for the sanction in form of baning the disposal if not in compliance with the convention, but it has failed to ensure it’s effective implementation. The sanctions provided under the convention are not so effective, so as to meet the growing menace of illegal dumpings in the water bodies. Further more, the Convention doesn’t applies to the Inland water bodies so the states regulate the dumping in inland water according to their wish, and when, the contaminated water falls into sea, causes pollution indirectly, frustrating the purpose of the Convention.

 

MARPOL CONVENTION, 1973 OR MARPOL 73/78

Marpol 73/78 is the International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978. ("Marpol" is short for marine pollution and 73/78 short for the years 1973 and 1978.).  Marpol 73/78 is one of the most important international marine environmental conventions. It was designed to minimize pollution of the seas, including dumping, oil and exhaust pollution. Its stated object is: to preserve the marine environment through the complete elimination of pollution by oil and other harmful substances and the minimization of accidental discharge of such substances. The original MARPOL Convention was signed on 17 February 1973, but did not come into force. The current Convention is a combination of 1973 Convention and the 1978 Protocol. All ships flagged under countries that are signatories to MARPOL are subject to its requirements, regardless of where they sail and member nations are responsible for vessels registered under their respective nationalities.

The Convention outlines technical rules and their compliance, and includes 6 annexes.  Annex1 deals with the prevention of pollution by oil. AnnexII addresses the control of pollution by noxious liquid substances. AnnexIII deals with the prevention of by harmful substances in a packaged form. The prevention of pollution by sewage from ships is the subject matter of AnnexIV. AnnexV controls pollution from garbage. The prevention of air pollution from ships is the concern of AnnexVI.

The  MARPOL regime has been presented as a model international regime in which the threat to proceed unilaterally was crucial in brokering an agreement among states. The US supported MARPOL and favored segregated ballast tanks ( SBTs) technology for all tankers. A group of other countries suggested Crude Oil Washing or COW Technology as an alternative to equipping all vessels with SBTs. Eventually both  the techniques were adopted by the MARPOL Convention.

SANCTIONS AS PER THE CONVENTION

 The Convention contains certain provisions for enforcement. It is provided that- “ any violation of the requirements…[ of the convention] within the jurisdiction of any party to the convention shall be prohibited and sanctions shall be established therefore under the law of that party.”

The Convention provides for detention of ships in cases of non-compliance of the provisions. The convention requires every ship to which the Convention applies to carry with them certificates. Such certificates provide proof that a ship is in compliance with the provisions of the Convention. Therefore the inspections on ships that carry certificates are restricted to ensuring that the certificate is valid. However, if a ship’s condition and equipment do not correspond substantially with the particulars of the ship, or if a ship does not hold a valid certificate, the inspecting state must ensure that the ship is detained. Such a detention will cease when it is ensured that the ship does not present an unreasonable threat of harm to the marine environment.

Further the Convention also provides for extensive reporting requirements. Under Article 11 of the Convention labeled “ Communication of Information,” the parties to the Convention are to communicate to the IMO their progress in implementing the Convention. Such progress includes the laws and other regulations they adopted with regard to the implementation of the convention. Failure of communication attracts compensation and satisfaction in form of written apologies by the officials of state parties.

The command and control approach of the MARPOL regime has pushed the technological requirements in the construction and equipment of ships in a matter better protects the environment.

 

EFFECTIVENESS OF THE CONVENTION-

 

One of the difficulties in implementing MARPOL arises from the very international nature of maritime shipping. The country that the ship visits can conduct its own examination to verify a ship’s compliance with international standards and can detain the ship if it finds significant noncompliance. When incidents occur outside such country's jurisdiction or jurisdiction cannot be determined, the country refers cases to flag states, in accordance with MARPOL.  A 2000 GAO report documented that even when referrals have been made, the response rate from flag states has been poor.

According to the Convention, each member State must penalise violations committed by vessels sailing under its flag, or by vessels within its jurisdiction. Ships lacking the certificates required by the Convention may be retained by the State carrying out the inspection.  But in practice, however, the Marpol Convention is not sufficiently binding to penalise violations of marine pollution rules. Its effectiveness resides in the technical standards it outlines; it is a preventive instrument. In the event of a major incident, the treaties governing civil liability and compensation are more likely to come into play, as are the more legally-binding rules of EU law. After the Erika tanker disaster, for example, the European Court of Justice based its decision (24 June 2008) on the EU waste directive; it ruled that the oil producer,  would be liable for the cost of cleaning up waste generated by the accidental oil spill, especially where those costs could not be shouldered by the IOPC funds.

The system implemented by the Marpol Convention has not eliminated risks, especially due to the increased use of flags of convenience and the questionable role of some private players in the oil transport industry.  Although the Convention includes rather sophisticated monitoring mechanisms (such as certificates and ship inspections), their implementation is often inadequate. There are several possible reasons for these inadequacies: the lack of a legally-binding procedure for failure to comply; of a specific mechanism for mediation; and of qualified personnel in the country of flag registration.

The considerable cost of compliance with MARPOL rules curbs the desire of many countries to ratify it. Several oil-exporting countries are not yet Party to the Convention, which a major hindrance in the success of the Convention.

It’s a matter of fact that the technical and procedural difficulties in implementation of the Convention has always proved to be a hindrance in the success of the Convention, but at the same time the convention has proved itself to be effective at certain points. The MARPOL Convention when it entered into force, made a contribution towards reducing deliberate discharges from ships. The amount of oil entering the marine environment has been reduced from 2.13 million tons in 1973 to 0.57 million tons in 1989, a decrease of 75 percent.  However overall appraisal of the convention points towards the failure of the Convention because of the optional character of certain provisions like AnnexIII and procedural difficulties in implementation of the Convention because of it’s non-binding character.

 

STCW CONVENTION, 1978

The  International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (or STCW), 1978, as amended, sets qualification standards for masters, officers and watch personnel on seagoing merchant ships. STCW was adopted in 1978 by conference at the International Maritime Organization (IMO) in London, and entered into force in 1984. The Convention was significantly amended in 1995.

The 1978  STCW Convention was the first to establish basic requirements on training, certification and watch keeping for seafarers on an international level. Previously the standards of training, certification and watch keeping of officers and ratings were established by individual governments, usually without reference to practices in other countries. As a result standards and procedures varied widely, even though shipping is the most international of all industries.

The Convention being one of its own kind deals with the regulation of merchant ships and prescribes minimum standards relating to training, certification and watchkeeping for seafarers which countries are obliged to meet or exceed. One especially important feature of the Convention is that it applies to ships of non-party States when visiting ports of States which are Parties to the Convention. Article X requires Parties to apply the control measures to ships of all flags to the extent necessary to ensure that no more favourable treatment is given to ships entitled to fly the flag of a State which is not a Party than is given to ships entitled to fly the flag of a State that is a Party.

SANCTION IN THE CONVENTION-

The Convention provides for the detention of the ship that fails to comply with the requirements provided by the Convention.  The convention provides for white list which identifies the countries that have demonstrated a plan of full compliance with the STCW Convention and Code as revised in 1995. Any country that fails to comply with the requirements of the Convention automatically falls in the non-white list or the Black list as it is usually referred to in general parlance. Falling in the non- white list is a sanction in itself, for instance, if a vessel is flagged by a non-white list country, when it desires to enter a white list port, it can be denied entry, detained or inspected vigorously. On the other hand, if a mariner has a Certificate of Competency (license) from a non-white list country, they will most likely be denied a Certificate of Equivalency, they will be rejected as a viable manning solution for white list flagged vessels, and their sea time and training may either be highly scrutinized or not accepted at all towards a Cof C from a white list country.

EFFECTIVENESS OF THE CONVENTION-

The convention is an effective convention in a way  because it is not only preventive but it is also a command and control legislation that requires the state as well as non-state parties to follow certain norms and the failure to follow those norms leads to sanctions in form of detention or denial of certificate of  competence.  The difficulties which could arise for ships of States which are not Parties to the Convention is one reason why the Convention has received such wide acceptance. By December 2000, the STCW Convention had 135 Parties, representing 97.53 percent of world shipping tonnage.

 

CONCLUSION-

The STCW convention provides for effective sanction in protecting the marine environment, by way of command and control legislation. So far till now, the convention has been implemented satisfactorily.

 

 

CONVENTION ON LIABILITY FOR DAMAGE RESULTING FROM ACTIVITIES DANGEROUS TO THE ENVIRONMENT-

The 1993 Convention on Liability for Damage Resulting from Activities Dangerous to the Environment adopted by the Council of Europe aims to provide adequate compensation for damage resulting from activities dangerous to the environment and to provide for prevention of damage and restitution. According to the Convention, the operator of a dangerous activity liable for incidents that cause damage but does not provide for specific limitation on liability. The convention is one of  it’s kind as it prescribes for substantial role to the NGOs.

The convention in Article 1, provides for object and purpose of the convention as-“ This Convention aims at ensuring adequate compensation for damage resulting from activities dangerous to the environment and also provides for means of prevention and reinstatement.”

An incident under the convention is defined as-“any sudden occurrence or continuous   occurrence, or any series of occurrence having the same origin that cause damage or create a grave and imminent, threat of causing damage.” So, in a way it also punishes the act that creates situation of grave and imminent danger. The Convention is punitive, precautionary as well as preventive.

The convention doesn’t applies in certain situations, that are listed below-

Ø  Tolerable levels of pollution under local relevant circumstances.

Ø  If proved by the operator that the damage was caused by war or a natural phenomenon of an exceptional, inevitable, and irresistible character, by intent of the third party.

Ø  Contributory negligence cases.

Ø  Order of a public authority

Ø  Dangerous activity undertaken in interests of people, who suffered the damage.

 

SANCTION UNDER THE CONVENTION-

The convention requires each party to ensure that operators are covered by insurance up to a certain limit by taking into account the risks of the activity. Damages covered under the convention include loss of life or personal injury, loss or damage to property, costs of preventive measures, and any loss or damage caused by preventive measures.

 The convention applies to environmental damage that is loss or damage by impairment of the environment, but the compensation in this case is limited to the costs of reasonable measures of reinstatement actually undertaken or to be undertaken. The convention defines measures of reinstatement as-“any reasonable aiming to reinstate or to restore damaged or destroyed components of the environment, or to introduce, when reasonable, an equivalent of these components.”

The convention covers requests by public interest organizations, whose purpose is the protection of environment, that comply with the internal requirements of the state where the request is submitted. Such requests may involve cessation of a dangerous activity, but can be made only before the courts of the place where the dangerous activity occurs.

The sanctions under the convention provides for compensation, restoration, reinstatement and cessation of the alleged dangerous activity.

EFFECTIVENESS OF THE SANCTION-

Though the convention has been drafted with great care and caution keeping into mind the increasing problem of damages to the environment, but still the convention has failed to achieve its purpose because of various lacunas in its implementation.

The first and foremost reason for the ineffectiveness of the convention is that the convention is yet to be ratified. The convention doesn’t provide for express liability limits because of which the obtaining of insurance under the convention is not easy. Another issue that the convention has not clarified is the distinction between tolerable levels of pollution and actionable polluting incidents, because of which it is difficult for the convention to acquire wider acceptance. Furthermore, the exceptions provided by the convention water down the purpose of the convention and instead of absolute liability as is required in the present scenario, the liability is changed to mere strict liability based on the fault of the operator of the dangerous act that is harmful to the environment.

 

EXAMPLES OF SANCTIONS IMPOSED-----

  • Nuclear testing by USA in Marshall islands case-

 

During the period from June 30, 1946, to August 18, 1958, the United States conducted  67 atmospheric nuclear tests in the Marshall Islands, 43 at Enewetak Atoll, 23 at Bikini Atoll, and one approximately 85 miles from Enewetak. The most powerful of those tests was the "Bravo" shot, a 15 megaton device detonated on March 1, 1954, at Bikini atoll. That test alone was equivalent to 1,000 Hiroshima bombs.While the Bravo test is well known, it should be acknowledged that 17 other tests in the Marshall Islands were in the megaton range and the total yield of the 67 tests was 108 megatons, the equivalent of more than 7,000 Hiroshima bombs.

For the sake of comparison, it may be noted that from 1945 to 1988, the U.S. conducted a total of 930 known nuclear tests with a combined yield estimated to be 174 megatons. Approximately 137 megatons of that total was detonated in the atmosphere. In other words, while the number of tests conducted in the Marshall Islands represents only about 14% of all U.S. tests, the yield of the tests in the Marshalls comprised nearly 80% of the atmospheric total detonated by the U.S.

In June 1983, a formal Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association was entered into (Section 177 Agreement). In that agreement, the U.S. recognized the contributions and sacrifices made by the people of the Marshall Islands in regard to the Nuclear Testing Program and accepted the responsibility for compensation owing to citizens of the Marshall Islands for loss or damage to property and person resulting from that testing.

Under the 177 Agreement, the United States provided to the Marshall Islands the sum of $150 million as a financial settlement for the damages caused by the nuclear testing program. That money was used to create a fund intended to generate $270 million for distribution over a 15 year period with average annual proceeds of  approximately $18 million per year through the year 2001. These funds were distributed among the peoples of Bikini, Enewetak, Rongelap, Utrik, for medical and radiological monitoring, and the payment of claims.

The 177 Agreement also provided for the establishment of a Claims Tribunal with jurisdiction to "render final determination upon all claims past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based on, arise out of, or are in any way related to the Nuclear Testing Program."

The Marshall Islands Nuclear Claims Tribunal was established in 1988.  In 1991, the Tribunal first implemented a compensation program for personal injuries deemed to have resulted from the nuclear testing program.  By the end of 2003, the Tribunal had awarded more than $83 million in compensation for such injuries with additional compensable claims being filed on a regular basis.  In addition, the Tribunal has awarded over $1 billion in property damage awards in the class actions of the people of Enewetak Atoll and the people of Bikini Atoll. The pending property claims from the peoples of Rongelap and Utrik Atolls near completion, while the people of Ailuk Atoll have recently filed a class action claim for compensation.  

With only $45.75 million made available for actual payment of awards made by the Tribunal during the first fifteen years of the Compact and less than $6 million of the initial $150 million now remaining in the Nuclear Claims Fund, it has become clear that the original terms of the settlement agreement are manifestly inadequate.

The table relating to the details of the nuclear testing is mentioned below-

U.S. NUCLEAR DETONATIONS IN THE MARSHALL ISLANDS

(Unless indicated otherwise, stated purpose of all tests was "Weapons Related")

No.

Date (M/D/Y)

Name

Atoll

Type

Yield

Operation Crossroads:          

1

6/30/46

Able

Bikini

B-29 Airdrop (520 ft.)

23 kilotons

2

7/24/46

Baker

Bikini

Underwater (-90 ft.)

23 kilotons

Operation Sandstone:          

3

4/14/48

X-Ray

Enewetak

Tower (200 ft.)

37 kilotons

4

4/30/48

Yoke

Enewetak

Tower (200 ft.)

49 kilotons

5

5/14/48

Zebra

Enewetak

Tower (200 ft.)

18 kilotons

Operation Greenhouse:          

6

4/7/51

Dog

Enewetak

Tower (300 ft.)

81 kilotons

7

4/20/51

Easy

Enewetak

Tower (300 ft.)

47 kilotons

8

5/8/51

George

Enewetak

Tower (200 ft.)

225 kilotons

9

5/24/51

Item

Enewetak

Tower (200 ft.)

45.5 kilotons

Operation Ivy:          

10

10/31/52

Mike (1)

Enewetak

Surface

10.4 megatons

11

11/15/52

King

Enewetak

Airdrop

500 kilotons

Operation Castle:          

12

2/28/54

Bravo (2)

Bikini

Surface

15 megatons

13

3/26/54

Romeo

Bikini

Barge

11 megatons

14

4/6/54

Koon

Bikini

Surface

110 kilotons

15

4/25/54

Union

Bikini

Barge

6.9 megatons

16

5/4/54

Yankee

Bikini

Barge

13.5 megatons

17

5/13/54

Nectar

Bikini

Barge

1.69 megatons

Operation Redwing:          

18

5/4/56

Lacrosse

Enewetak

Surface

40 kilotons

19

5/20/56

Cherokee

Bikini

Airdrop

3.8 megatons

20

5/27/56

Zuni

Bikini

Surface

3.5 megatons

21

5/27/56

Yuma

Enewetak

Tower (205 ft.)

.19 kilotons

22

5/30/56

Erie

Enewetak

Tower (300 ft.)

14.9 kilotons

23

6/6/56

Seminole

Enewetak

Surface

13.7 kilotons

24

6/11/56

Flathead

Bikini

Barge

365 kilotons

25

6/11/56

Blackfoot

Enewetak

Tower (200 ft.)

8 kilotons

26

6/13/56

Kickapoo

Enewetak

Tower (300 ft.)

1.49 kilotons

27

6/16/56

Osage

Enewetak

Airdrop (600-700 ft.)

1.7 kilotons

28

6/21/56

Inca

Enewetak

Tower (200 ft.)

15.2 kilotons

29

6/25/56

Dakota

Bikini

Barge

1.1 megaton

30

7/2/56

Mohawk

Enewetak

Tower (300 ft.)

360 kilotons

31

7/8/56

Apache

Enewetak

Barge

1.85 megatons

32

7/10/56

Navajo

Bikini

Barge

4.5 megatons

33

7/20/56

Tewa

Bikini

Barge

5 megatons

34

7/21/56

Huron

Enewetak

Barge

250 kilotons

Operation Hardtack I:          

35

4/28/58

Yucca

Near Enewetak (3)

Balloon (86,000 ft.)

1.7 kilotons

36

5/5/58

Cactus

Enewetak

Surface

18 kilotons

37

5/11/58

Fir

Bikini

Barge

1.36 megatons

38

5/11/58

Butternut

Enewetak

Barge

81 kilotons

39

5/12/58

Koa

Enewetak

Surface

1.37 megatons

40

5/16/58

Wahoo

Enewetak

Underwater (-500 ft.)

9 kilotons

41

5/20/58

Holly

Enewetak

Barge

5.9 kilotons

42

5/21/58

Nutmeg

Bikini

Barge

25.1 kilotons

43

5/26/58

Yellowwood

Enewetak

Barge

330 kilotons

44

5/26/58

Magnolia

Enewetak

Barge

57 kilotons

45

5/30/58

Tobacco

Enewetak

Barge

11.6 kilotons

46

5/31/58

Sycamore

Bikini

Barge

92 kilotons

47

6/2/58

Rose

Enewetak

Barge

15 kilotons

48

6/8/58

Umbrella

Enewetak

Underwater (-150 ft.)

8 kilotons

49

6/10/58

Maple

Bikini

Barge

213 kilotons

50

6/14/58

Aspen

Bikini

Barge

319 kilotons

51

6/14/58

Walnut

Enewetak

Barge

1.45 megatons

52

6/18/58

Linden

Enewetak

Barge

11 kilotons

53

6/27/58

Redwood

Bikini

Barge

412 kilotons

54

6/27/58

Elder

Enewetak

Barge

880 kilotons

55

6/28/58

Oak

Enewetak

Barge

8.9 megatons

56

6/29/58

Hickory

Bikini

Barge

14 kilotons

57

7/1/58

Sequoia

Enewetak

Barge

5.2 kilotons

58

7/2/58

Cedar

Bikini

Barge

220 kilotons

59

7/5/58

Dogwood

Enewetak

Barge

397 kilotons

60

7/12/58

Poplar

Bikini

Barge

9.3 megatons

61

7/14/58

Scaevola (4)

Enewetak

Barge

0

62

7/17/58

Pisonia

Enewetak

Barge

255 kilotons

63

7/22/58

Juniper

Bikini

Barge

65 kilotons

64

7/22/58

Olive

Enewetak

Barge

202 kilotons

65

7/26/58

Pine

Enewetak

Barge

2 megatons

66

8/6/58

Quince

Enewetak

Surface

0 ("fizzle")

67

8/18/58

Fig

Enewetak

Surface

0.02

 

 

 

Innumerable lives were lost and large damage was caused to the property, and there are many more who are suffering but they have not even been enumerated during the period when loss was being evaluated and the compensation awarded is US$563,315500 in case of Bikini Island and US$341049311 in case of Enewetak Island, which appears very futile if all the possible future damages are also taken into account.

 

 

  • NAURU CASE-

The story begins in 1908, when the Germans, then in control of Nauru, began to mine the large deposits of phosphate located there. The island fell into the hands of the Australians after their soldiers liberated Nauru in the early months of World War I. The League of Nations subsequently set up a mandate system than Australia, Great Britain, and New Zealand administered together. These three states then set up the British Phosphate Commissioners to deal with the mining operation. In 1942, the Germans seized and occupied Nauru. After World War II, Australia became the chief administrator of the United Nations Trusteeship that included Nauru until independence for the island was granted in early 1968.

Nauru's phosphate can be described as a cash crop, because it is the only resource with which the island can sustain an economy. Nauru exports the majority of its phosphate to Australia, which uses it as a fertilizer because its soils are poor for agriculture. Phosphate mining on Nauru generally occurs in the interior, which is a central plateau commonly called "topside". The phosphate is actually a composite of two materials which have combined and solidified over the eons: decayed oceanic microorganisms and bird droppings. These elements intertwined with the coral and limestone that forms the island, and extraction of the phosphate left behind deep pits and tall pillars, some as high as 75 feet. This creates a moon-like scene, which contributes to the incultivable and uninhabitable atmosphere. Four-fifths, or 80%, of the island is a barren wasteland, with the residents living on a narrow strip along the coast.

The Impacts of Phosphate Mining-

Phosphate mining has had a huge impact on the people and the environment of Nauru.

Mining changed the whole Nauruan way of life. Cash replaced the old barter (trading) system. Stores full of imported goods slowly replaced the old crafts of weaving, shell work, carving and building. Many Nauruan customs were banned by the Europeans but by adapting some of their customs to western ideas, the Nauruan people managed to keep parts of their culture alive.

Along with the loss of many customs, Nauruans also lost knowledge of their environment. The old knowledge of plants and animals disappeared in the path of mining. Within fifty years more than half of topside had been mined and in this space of time Nauru changed from a productive forest land to a wasted landscape. Today, topside is almost completely mined. Tall limestone pinnacles rise from the deep pits created by phosphate mining.

With their traditional food source now gone, the people of Nauru depend almost entirely on imported food. Apart from locally caught fish, most food now arrives by sea every six weeks. All the other goods needed to make life comfortable in the twentieth century are also imported.

However these necessary imports cause another environmental problem for Nauru - waste.

Waste is a serious problem on Nauru. Nobody knows exactly how much waste is created as no thorough audits have been carried out. However, an estimate puts the amount at 500 kg per person per year. Food scraps, packaging, plastic, glass and metal containers, garden waste, disposable nappies, paints, machinery, chemicals, mining waste, sewage, car parts and oil form part of Nauru's daily waste stream.

Table relating to the details of waste produced in Nauru is mentioned below-

    Estimates of waste stream on Nauru

Organic (use for rehabilitation)

 

per person
kg/year

total
tonnes/year

food wastes

35

525

Paper

40

600

cardboard

50

750

Plastics

50

750

Textiles

25

375

Rubber

10

150

Leather

0

0

green waste

200

3000

Inorganic (potentially recyclable).

Glass

25

375

steel cans

10

150

aluminium

5

75

other metal

25

375

dirt,ash,other

10

150

TOTALS

500

7,500

As a result of the environmental degradation discussed above (and to a lesser extent, the financial crisis), the Republic of Nauru filed suit with the International Court of Justice against Australia in June, 1989. The stated goal was that Nauru desired compensation from Australia for the environmental damage that resulted from the mining of the phosphate that took place prior to Nauru's independence in 1968. One side of the story has it that the former colonial powers were irresponsible in the mining of the mineral, and that Australia, as the primary trustee power, did a miserable effort at preparing the island for independence. The Australians contended, however, that the leader of Nauru, Hammer DeRoburt, incompetently mismanaged the affairs of the phosphate export funds while at the same time acting disinterested in the welfare and fate of his own people. In addition, the Australians began the legal battle by recognizing the Court's legitimacy, yet contested its jurisdiction. The Australians then defended themselves vigorously, taking the position that agreements made at the time of independence nullified any future claims. A 1988 Nauruan commission, however, disputed this claim, actually putting a price on pre-independence mining at $A72 million.

The involvement of the International Court of Justice is significant in that while it does not have formal powers of enforcement, it nonetheless has a certain moral weight. In addition, any ruling would likely set an international precedent concerning natural resources and the profiting of them by colonial powers at the expense of developing states

The Court, in a 1992 preliminary hearing, however, dismissed the Australian position that Nauru was mostly responsible since two- thirds of the mining occurred after independence. The Court stated that the argument did not end with independence, and that the "agreements" made prior to independence did not absolve Australia of any blame. In addition, Nauru did not violate any time limitations in its filing of the claim to the Court. In terms of the other two colonial powers, Britain and New Zealand, the Court stated that Australia could stand alone, but that any ruling may have implications for those states.

SETTLEMENT:

The proceedings of the International Court of Justice continued, but the Republic of Nauru and Australia pursued negotiations outside the realm of the Court in 1992 and 1993. An agreement was in effect between the two countries on August 20, 1993. Part of the provisions of the agreement hold that Australia will award $A107 million to Nauru as compensation for the environmental damage. In addition, Nauru waived the right to make any further claim to issues arising from either the administration of the island during the mandate/trusteeship era, or phosphate mining itself. This is to the advantage of not only Australia, but to Great Britain and New Zealand as well. Those two states were not part of the above Court ruling. The agreement signed between Australia and Nauru is to remain in force for twenty years but must be reviewed within that period.

 

Conclusion

The overall appraisal of the sanctions available in various provisions of international environmental law  e.g. the very Polluter pays principle, ,  The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 or The London Dumping Convention,  Marpol 73/78, STCW Convention, 1978, Convention on Liability for Damage Resulting from Activities Dangerous to the Environment, are good attempts at making the sanctions of international environmental law as effective as possible but barring the polluter pays principle, STCW Convention, 1978 and the London Dumping Convention, the others have proved to be non- effective sanctions in international environmental law. Though the PPP or the STCW and the London Dumping Convention provide effective sanction that has got preventive, punitive as well as precautionary sanctions but the sanctions imposed so are inadequate as compared to the damage done to the environment, the latest example being the Gulf of Mexico Oil Spill case wherein the fine imposed in form of  compensation is inadequate as compared to the loss done to the marine environment of the area. 

 

 

 

 

 

 

 

 

 

 

 

 

 

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