IUCN Environmental Policy and Law Paper No. 8 PRIVATE REMEDIES FOR TRANSFRONTIER ENVIRONMENTAL DISTURBANCES Stephen C. McCaffrey International Union for Conservation of Nature and Natural Resources Morges, Switzerland 1975 1975 International Union for Conservation of Nature © and Natural Resources FOREWORD Where environmental disturbances extend across national boundaries, very difficult legal and administrative prob- lems can result, creating further obstacles to the manage- ment of what may already be a complicated technical and legal situation. Gaining a legal remedy for environmental harm is a problematic effort even within most national jurisdications, since pollution cases by their nature raise difficult questions of standing, causation, and so on. When two or more different legal systems are involved, the complexities multiply and injustice may result. This important problem area is the subject of the present work. Part I is a study closely related to what is tra- ditionally called "Conflicts of Laws", in the special factual context of transfrontier pollution cases. This study seeks to determine what sort of recourse, under what law, is available in the event of various kinds and configurations of transfrontier disturbance. Part II reviews existing international instruments relevant to transnational environ- mental disturbances, and suggests provisions which might be included in an international agreement on this subject. These are not purely academic questions but are under active discussion at the international level. Significant ini- tiatives have been taken even during the final stages of preparation of this study. Thus, at their meeting in Geneva in February 1975, the Senior Advisers on Environmental Problems of the Economic Commission for Europe considered issues relevant to transfrontier pollu- tion. Reports are being prepared for the ECE by appointees of the governments of Norway and the Soviet Union on sulphur dioxide emission sources in Europe. The ECE plans to under- take similar studies on a whole range of problems relevant to transfrontier pollution, with the long-term goals of elaborating legal criteria and an international strategy for the prevention of pollution. The Environment Committee of the Organization for Economic Cooperation and Development has for some time been studying problems relevant to transfrontier disturbances. In November 1974, the OECD Council adopted a set of Principles Concerning Transfrontier Pollution which it recommended to its member states in the interest of harmonising environ- mental policies. Among the policies promoted by OECD are the principles of non-discrimination and equal right of hearing, both of which are relevant to private law trans- national disputes. 3 4 The Scandinavian countries have been particularly concerned with problems of transfrontler disturbances. The Nordic Convention on the Protection of the Environment which was concluded in February 1974, is discussed in the present paper. More recently, the Norwegian government organized an international meeting of experts in Oslo in December 197 4, to consider the establishment of a cooperative programme to monitor transfrontier air pollution in Europe. It is hoped that the present study, which is the outcome of research undertaken by the author as a project carried out under the auspices of IUCN at its Environmental Law Centre, Bonn, Federal Republic of Germany, will make a positive con- tribution to international discussions in progress and may lead to further initiatives, particularly with a view to protecting individual rights to obtain adequate remedies in cases of transnational environmental disturbances. 5 THE AUTHOR One of the co-founders and a member of the original board of editors of the Ecology Law Quarterly, Stephen Conolly McCaffrey received a J.D. from the University of California School of Law (Boalt Hall) in Berkeley, California, and a Dr. jur. in private international law from the Universität zu Köln, Cologne, Federal Republic of Germany. At present he is an Associate Professor of Law, Southwestern University School of Law, Los Angeles, California. Among other organizations, he is a member of the California State Bar, the International Council of Environmental Law, and Sierra Club. Mr. McCaffrey is married and has two children. ACKNOWLEDGEMENTS The author wishes to acknowledge most gratefully the finan- cial support provided by the Alexander von Humbolt Stiftung, which made this study possible, and to thank the IUCN Environmental Law Centre, Bonn, Federal Republic of Germany, for allowing the use of its excellent facilities for the duration of this study. The research assistance of Mlle. Chantal Tesson on the French law sections of Chapters 2, 3, 4 and 6, for which the author bears full responsibility, is also much appreciated. Finally, special thanks go to Dr. Françoise Burhenne-Guilmin for her helpful comments and constructive criticism and to Heather McCaffrey for her useful comments, assistance in preparation of the manuscript and constant support. CONTENTS Foreword 3 Introduction 11 PART I - Availability of Judicial and Administrative Recourse Against Foreign Sources of Pollution 1. Suits at the Place of the Injury: General 17 2. Suits at the Place of the Injury: Jurisdiction 19 A. Europe — Civil Law 19 (1) Suits in Germany 20 (2) Suits in France 22 B. North America — Anglo-American Law 23 (1) Suits in the United States 23 (2) Suits in Canada 26 3. Suits at the Place of the Injury: Choice of Law 29 A. Europe — Civil Law 30 (1) Germany 30 (2) France 30 B. North America — Anglo-American Law 32 (1) United States 32 (2) Canada 35 4. Suits at the Place of the Injury: Remedies 37 A. Money Damages 37 (1) Europe — Civil Law 38 (2) North America — Anglo-American Law .... 46 B. Injunctive Relief 51 (1) Europe — Civil Law 54 (2) North America — Anglo-American Law .... 58 7 8 5. Suits at the Place of the Injury: Enforcement of Foreign Judgments 61 A. Europe — Civil Lavw (The European Con- vention on Jurisdiction and Judgments).... 61 B. North America — Anglo-American Law 62 (1) United States 63 (2) Canada 64 6. Proceedings at the Place of the Act: Judicial Proceedings (Jurisdiction) 66 A. Europe — Civil Law 66 (1) Germany 66 (2) France 68 B. North America — Anglo-American Lav; 68 (1) United States 69 (2) Canada 70 7. Proceedings at the Place of the Act: Administrative Proceedings 72 8. Conclusion to Part 1 80 PART II - Proposed International Action 9. Introduction 83 10. Existing Models for a Transfrontier Pollution Agreement 85 A. Regional Arrangements to Prevent Trans- frontier Environmental Harm 85 (1) The Scandinavian Convention on Trans- frontier Pollution 85 (2) The German-Austrian Salzburg Airport Treaty 88 (3) Agreements between European States concerning the Protection of Shared Water Resources 89 (4) The 1909 Boundary Waters Treaty between Canada and the United States .... 91 (5) The American Clean Air Act of 1967 92 (6) The Council of Europe Resolution on Air Pollution in Frontier Areas 93 9 B. International Conventions Imposing Liability for Environmental Damage 94 (1) The Draft European Convention on the Protection of International Freshwaters against Pollution 94 (2) The International Convention on Civil Liability for Oil Pollution Damage .... 97 (3) The Vienna Convention on Civil Liability for Nuclear Damage 98 (4) The Helsinki Rules on the Uses of the Waters of International Rivers 99 (5) The World Peace Through Law Center Draft Environmental Convention 99 11. Proposed Action 101 Introduction 101 A. Judicial Procedures 101 (1) Jurisdiction 101 (2) Choice of Law 103 (3) Remedies 106 (a) Money Damages 106 (b) Injunctive Relief 106 (4) Enforcement of Foreign Judgments 107 B. Administrative Procedures 108 C. Fund for the Compensation of Unrecoverable Losses 112 12. Conclusion to Part II 119 NOTES 121 APPENDIX 152 INTRODUCTION Industrial waste products, including noise, emitted into portions of the biosphere shared by two or more nations have caused increasing damage to foreign states and their citizens in recent years.1 The adverse effects of these industrial "externalities" upon foreign interests have aroused international concern,2 since the mere existence of a national frontier between polluter and victim may create insurmountable difficulties in securing abatement of the offensive activity or compensation for damage which it has caused. Private parties injured by a use of resources in a neigh- boring country (e.g., diversion or pollution of boundary waters) have, in practice, resorted to seeking relief through governmental channels when judicial jurisdiction could not be asserted over the offensive activity.3 But invocation of governmental assistance frequently sets a process in motion which results in an inadequate remedy for the individual: Too often the issue is framed in terms of state, rather than private liability for the damage; the rights of each state to the use of the shared resource are then determined on the basis of generally accepted principles of public international law. What often could be treated as a matter of private liability is in this way elevated to the level of state responsi- bility. The central issue then becomes whether a state's sovereignty was invaded, rather than how best to compen- sate the injured private interests.4 Since nations have been loath to admit responsibility for extraterritorial damage caused by domestic acts, the matter usually results in a compromise, and the injured parties are shortchanged. Moreover, such procedures are notoriously