DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2020-21

INTERNATIONAL ENVRIONMENTAL LAW

PROJECT ON:

“THE TRANSBOUNDARY MOVEMENT OF HARMFUL EFFECTS: STATE RESPONSIBILITY”

SUBMITTED BY: SUBMITTED TO:

Aniket Sachan Dr. Amandeep Singh
1701011028 Assistant Professor (Law)
SECTION ‘A’ Dr. RMLNLU
B.A. LLB (Hons.), Semester VIII
 Table of Contents

ACKNOWLEDGEMENT .................................................................................................................. 3

INTRODUCTION ........................................................................................................................... 4

THE SCOPE OF THE SUBJECT: THE DEFINITION OF TRANSBOUNDARY DAMAGE ............................. 5

THE PHYSICAL RELATIONSHIP BETWEEN THE ACTIVITY AND THE DAMAGE ................................. 5

THE REQUIREMENT OF HUMAN CAUSALITY ................................................................................. 5

THE THRESHOLD CRITERION........................................................................................................ 6

THE TRANSBOUNDARY MOVEMENT OF HARMFUL EFFECTS.......................................................... 7

THE QUESTION OF ATTRIBUTION: STATE RESPONSIBILITY ........................................................... 7

HISTORY OF DEVELOPMENT OF STATE RESPONSIBILITY (CUSTOMARY LAW, GENERAL PRINCIPLES

AND CASE LAW) .......................................................................................................................... 9

CASE LAWS IN SUPPORT OF STATE RESPONSIBILITY ................................................................... 10

CONCLUSION ............................................................................................................................. 12

BIBLIOGRAPHY .......................................................................................................................... 13
 ACKNOWLEDGEMENT

I, Aniket Sachan, a Fourth year Law scholar at Dr. Ram Manohar Lohiya National Law
University, Lucknow, am highly grateful towards our lecturer Dr. Amandeep Singh, who gave
me the opportunity to study this topic and because of his help and support, this project has
reached its completion.
I would also like to thank the library staff of Dr. Ram Manohar Lohiya National Law
University, Lucknow, for their patient and diligent support in the making of this project.
I would like to thank my parents who encouraged me to work hard and motivated me to give
my best. Last, I would like to acknowledge my friends who helped me in the research needed
for this project.
I have tried my best to include all the aspects discussed in the given case, yet, ignorance or any
mistake is deeply apologized.
Thanking you,
Yours sincerely,
Aniket Sachan
 INTRODUCTION

That large-scale industrial, agricultural, and technical activities conducted in the territory of
one country can cause detrimental effects in the territory of another country or to areas of the
global commons is by no means a novel problem in international law. Such transboundary
damage has given rise to numerous theories of State responsibility or liability, focusing on
remedial rules. But for a long time, State practice in this field remained inconsistent and
fragmentary. During the past two decades, however, the scope and content of the subject have
dramatically expanded, exerting a direct impact on the codification and progressive
development of international law in three important fields: (1) the regime of State
responsibility; (2) international liability for injurious consequences arising from acts not
prohibited by international law; and (3) international environmental law. State responsibility
and international liability for injurious consequences have been two of the major issues on the
agenda of the International Law Commission (ILC). In current parlance, transboundary damage
is also often referred to as environmental damage, but of a specific type, namely, environmental
damage caused by or originating in one State, and affecting the territory of another. There is a
vast body of international treaties on various forms of transboundary damage - pollution of
international waters, long-range air pollution, land-source damage to the ocean and oil
pollution, to give only a few examples.

State responsibility is one of the most complex issues in the international law. The trouble of
dealing with this complex issue is the difficulty to invoke state responsibility in practice. Even
bigger challenge is bringing the concept of state responsibility in connection to the
environment. There are so many environmental issues and it becomes very hard to tackle every
form of it. Therefore, this paper tends to present the concept of state responsibility and state
liability in relation with the transboundary environmental damage. Therefore, international
obligations have to be provided by international customary or conventional law. The other
obstacle in invoking state responsibility will be proving the causal link between activities and
damage. Moreover, the activities of the states can be legal, thus, no state responsibility can be
claimed. In light of that distinction between wrongful acts and activities not prohibited by
international law, International Law Commission expanded its work and produced Draft
Articles and Principles on State responsibility and International Liability for Injurious
Consequences Arising out of Acts Not Prohibited by International Law.
 THE SCOPE OF THE SUBJECT: THE DEFINITION OF TRANSBOUNDARY DAMAGE
Transboundary damage can arise from a wide range of activities which are carried out in one
country but inflict adverse effects in the territory of another. Traditionally, however,
transboundary damage as a term of art normally refers to border-crossing damage via land,
water, or air in dyadic State relations. In international environmental law, such damage is often
referred to as international environmental damage or international environmental harm.1 But
since the term ‘‘environment” has evolved to have such broad connotations, the discussion of
transboundary damage in the present study is restricted by four elements: (1) the physical
relationship between the activity concerned and the damage caused; (2) human causation; (3)
a certain threshold of severity that calls for legal action; and (4) transboundary movement of
the harmful effects. Each of these elements is explained below.

THE PHYSICAL RELATIONSHIP BETWEEN THE ACTIVITY AND THE DAMAGE

Acts that may give rise to transboundary damage for the purposes of this study are those which
directly or indirectly involve natural resources, e.g. land, water, air, or the environment in
general. In other words, there must be a physical linkage between the activity in question and
the damage caused by it. Typically, industrial, agricultural, and technological activities fall into
this category. For example, when a nuclear plant is to be built in the border area, placing a
vulnerable neighbour at risk, or a border airport creates a nuisance from overflight of a village
situated in a neighbouring country, the normal conditions of the environment are disturbed or
interrupted by the activity. More dramatic are cases where factories emit noxious fumes and,
as a result, residents living on the other side of the border experience increased risk of lung or
skin diseases; or where a fault in a border highway construction incidentally causes a landslide
that damages the crops of the neighbouring farm of another country. Not surprisingly, damage
arising from such activities has often been addressed locally or regionally, as these incidents
generally involve two or three countries in the region. The gist of this first element is that
activities in one State directly give rise to harm in a neighbouring State or States.

THE REQUIREMENT OF HUMAN CAUSALITY

The second defining element is the human (i.e. anthropogenic) cause of transboundary damage.
Damage that may affect more than one country is not caused by human activities alone. Natural
factors, such as earthquakes, floods, volcanos, and hurricanes, can also bring about tremendous
losses to human society across a wide area. For such ‘‘acts of God,” so to speak, liability rules
do not apply. A standard force majeure clause is usually contained in treaties to exonerate
States from legal liability for such damage. In principle, transboundary damage should have
‘‘some reasonably proximate causal relation to human conduct.” Furthermore, in accordance
with the principles of State responsibility and liability, remediable damage must be connected
with a legal right or interest of a State, i.e. an entity with plenary legal personality in
international law. In the domestic environmental law field, damage to the public domain could
be claimed by the government on behalf of the State community. In international practice, such
anthropocentric linkage with the rights and interests of international persons presents little
problem in dyadic relations, where the injured State can be easily identified. However, in the
case of damage to the global commons -- namely, areas situated beyond national jurisdiction
and control (e.g. polar areas, the high seas, or outer space) -- it has traditionally been thought
that no State can claim damage on behalf of the international community under international
law if its own legal rights or interests are not directly affected. In recent years, the idea of
claims for damage to the global commons has gained force, as communal interests in the
protection of the commons come to be recognized and expressed in various legal instruments.

THE THRESHOLD CRITERION

Transboundary damage does not necessarily give rise to international liability in all cases. As
has been observed to say that a State has no right to injure the environment of another seems
quixotic in the face of the great variety of transborder environmental harms that occur every
day. No one expects that all these injurious activities can be eliminated by general legal fiat,
but there is little doubt that international legal restraints can be an important part of the
response. International law only tackles those cases where transboundary damage has reached
a certain degree of severity. Both in theory and in practice, the need for a threshold criterion
has never been doubted, but what that should be has long been debated, along with the dilemma
of how strict international liability rules should be. Evidently severity is a factual inquiry which
changes with the circumstances of a given case. In different international legal instruments on
natural resources and the protection of the environment, various terms qualifying the damage
such as ‘‘serious,” ‘‘significant,” ‘‘substantial,” and ‘‘appreciable” have been adopted. The
choice of such a term serves to set the threshold criterion for invoking international liability
and to indicate the standard of conduct that State governments deem appropriate. The change
of terms in the context of the ILC’s early work on non-navigational uses of international
watercourses, from ‘‘serious” to ‘‘appreciable” and finally to ‘‘significant,” demonstrates the
difficulty in deriving generally accepted rules of conduct for riparian States in the uses of
international watercourses. To be legally relevant, damage should be at least ‘‘greater than the
mere nuisance or insignificant harm which is normally tolerated.” However, different limits
are required for different purposes and in different contexts.

THE TRANSBOUNDARY MOVEMENT OF HARMFUL EFFECTS

On the international plane, transboundary movement of harmful effects implies that more than
one State is involved in or affected by the activity in question. The most straightforward
example is the use of international rivers and lakes. When a river runs through more than one
country, it may be considered an international river,18 whether it serves as a boundary river or
flows successively in different States. If the upstream State, in developing its water resources,
either by building dams or by using the water for irrigation, brings about detrimental effects on
the downstream State (e.g. the diversion of a large quantity of water resulting in serious damage
to the crops in the territory of another State, or raising substantially the level of salinity of the
water downstream, rendering it undrinkable), it causes transboundary damage. Another
example is long-range air pollution. Industrial fumes produced in one State move across the
border into a neighboring State, forming ‘‘acid rain” that ruins the forests and crops in that
other State. As explained above, the media for the transborder movement of the effects can be
water, air, or soil. With national boundaries in mind, the term ‘‘transboundary” stresses the
element of boundary-crossing in terms of the direct or immediate consequences of the act for
which the source State is held responsible. It is the act of boundary-crossing which subjects the
consequent damage to international remedy and initiates the application of international rules.
Moreover, a ‘‘transboundary” harm may result from a transboundary movement across several
boundaries that causes detrimental effects in several States. A transboundary act may also take
the form of an act which causes harm in and beyond national jurisdiction or control, such as
marine pollution of the high seas from land-based sources.

THE QUESTION OF ATTRIBUTION: STATE RESPONSIBILITY

In the environmental field, transboundary damage bears directly on State responsibility in two
respects. In its broadest sense, ‘‘State responsibility” denotes the obligation of States to take
responsibility for the prevention, or at least minimization and mitigation, of such damage. In
the narrow sense of the term, it refers to the obligation of States to redress or make reparation
for damage. On the State level, it is the State government that is answerable to the injured State
for any transboundary damage. In practice, it is equally true that private victims can often seek
to have their grievances redressed only through representation by their government in all
dealings with or actions against the government of the author State. Therefore, as the ultimate
players in international relations, States shoulder a general responsibility for transboundary
damage. Under the general rules of State responsibility, a State is only responsible for acts or
omissions that are attributable to it. Under the terms of the ILC’s Articles on State
Responsibility1: There is an internationally wrongful act of a State when conduct consisting of
an action or omission: (a) Is attributable to the State under international law. The purpose of
attribution is to establish the link between the wrongful act and its responsible author. Thus,
international law may regard the action or omission concerned as ‘‘an act of the State.”
Traditionally, the scope of the notion of an act of the State was strictly interpreted. As the ILC
pointed out in the initial stages of its work: in theory, there is nothing to prevent international
law from attaching to the State the conduct of human beings or collectivities whose link with
the State might even have no relation to its organization; for example, any actions or omissions
taking place in its territory could be considered acts of the State. In practice, however, we find
that what is, as a general rule, attributed to the State at the international level are the acts of
members of its ‘‘organization,” in other words, the acts of its ‘‘organs” or ‘‘agents.” This is the
basic principle. The rules have developed along the lines of a ‘‘functional theory.” In other
words, States are only responsible for acts that are performed in the exercise of governmental
functions. The doctrine of attribution serves to draw the line between the public domain and
the non-governmental or private realm in order to isolate those acts or omissions which may
be considered ‘‘acts of the State” and, consequently to determine when the State’s
responsibility should arise. The doctrine has two aspects, negative and positive. On the negative
side, it determines which acts or omissions do not invoke the direct responsibility of the State,
thus leaving the matter to the private domain. In Western liberal thinking, this theory is
intended to help maintain a manageable sphere within which the government may operate,
while insulating it from undue interference from the private sector. Such a distinction would
preclude State responsibility in cases where the wrongful conduct is of a purely private nature
and there is thus no positive duty on the part of the State to answer for it. On the positive side,
the doctrine dictates duties to the State to take action or refrain from action. These positive
duties owed by States to each other and to the international community require full compliance.
Should a State fail to perform them, it breaches its international obligation. In other words,
State responsibility encourages the observance of international obligations undertaken by a
State.

1
Articles on Responsibility of States for Internationally Wrongful Acts, 2001, annexed to
GA Resolution 56/83, December 12, 2001, article 2.
 HISTORY OF DEVELOPMENT OF STATE RESPONSIBILITY (CUSTOMARY LAW, GENERAL
PRINCIPLES AND CASE LAW)

The law of state responsibility is customary international law, developed by state practice and
international judgments. 'Principles of state responsibility constituted a baseline enforcement
system at the time when public international law begun to engage with the environmental
concerns by applying general rules to situation involving environmental harm. ‟Even though
the enforcement of public international law is rather limited because states participate on
voluntary basis and reciprocal obligations, customary international law is binding on the states,
as it is evidence of generally accepted state practice and opinion juris accepted as law.” The
concept of state responsibility makes an obligation for states to act in conformity with the
international agreements or customary law. Since the concept of state responsibility is
applicable to the field of environment, the breaches of treaty or customary international law
allow the injured state to lodge claim against injuring (violating) state whether by way of
diplomatic action or by way of recourse to international mechanism where such are in place
with regard to the subject matter at issue.” The most important principles of environmental
protection are imposed by customary international law. Furthermore, some of the main general
principles of international law are relevant for states’ rights and obligations regarding the
environment. One of those principles is the principle of state sovereignty over its territory and
natural resources, which is a fundamental and the most important principle of international law
in general. Throughout the history states could use their own natural resources in the way they
want regardless of the impact to the territory of another state. It is clear that this principle is no
longer absolute. The limitation of territorial sovereignty is the obligation of states not to act as
to injure the rights of other states. ‟Such activities of the state that cares for other countries
reflects also the principle of good neighbourliness as well as the principle of state responsibility
for causing the environmental damage in case that damage occurs. Principle 21 of the
Declaration adopted by the 1972 Stockholm Conference on the Human Environment4 has also
formulated principle that no state may allow its territory to be used in a way to cause
environmental damage: States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own resources pursuant
to their own environmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
This Principle was repeated by Principle 2 in Declaration on Environment and Development,
adopted by the 1992 Conference held in Rio de Janeiro. Those were two most important soft-
law instruments that have dealt with state responsibility for transboundary harm.
Furthermore, those principles are now included in various other binding and non-binding
international instruments. For example, it can be found in the relevant provisions of Article
194 (2) of the Convention on Law of the Sea (1982)7 and the Convention on Biological
Diversity in Article 3.

CASE LAWS IN SUPPORT OF STATE RESPONSIBILITY

As far as international case law is concerned, just a few important court and arbitration cases
gave solid support to the general principles and made relevant precedents. Those cases are
related to the environmental damage that occurred in one state because of the acts in another
state. The decision in the Trail Smelter arbitration is one of the most cited decisions by courts
and tribunals in the field of state responsibility and the environment.
The dispute was between United States and Canada because of the air pollution coming from
the Canadian factory and causing the damage to crops in the United States. The tribunal
decided: that under the principles of international law, as well as the law of the United States,
no state has the right to use or permit the use of its territory in such manner as to cause injury
by fumes in or to the territory of another or the properties of person therein, when the case is
of serious consequence and the injury is established by clear and convincing evidence. This
ban of causing harm to other state has been repeated in some other cases, for instance, in the
Corfu Channel case in 1949. In this case United Kingdom suffered loss of human lives and
damage to their vessels because the explosions of mines in Albania’s territorial sea.
International Court of Justice stressed that it was Albania’s obligation to notify and warn about
those mines. Court held Albania responsible, set the compensation and declared that obligation
of each state is not to allow knowingly its territory to be used for acts contrary to the rights of
other states.
In the Lac Lanoux case, the dispute was between Spain and France about using the lake by
France for generating electricity. It was needed to redirect part of the water to another river.
Spain claimed that it would affect the interest of Spanish users of river. The tribunal decided
there was a principle which prohibits the upstream state from alerting the waters of a river in
such a fashion as seriously to prejudice downstream state.
In the advisory opinion to UN General Assembly on the Legality of the Threat or Use of
Nuclear Weapons International Court of Justice stated that: The existence of the general
obligation of states to ensure that activities within their jurisdiction and control respect the
environment of other states or of areas beyond national control is now part of corpus of
international law relating to the environment.
Furthermore, in the Gabčikovo –Nagymaros Project case concerning the construction of a dam
on the Danube River, the statement of previous mentioned case was repeated in judgment by
International Court of Justice: recently had occasion to stress the great significance that it
attaches to respect for the environment, not only for States but for whole mankind. The
existence of the international obligation or duty between two states, act that violates that
obligation and loss or damage that resulted from unlawful act are the conditions for state
responsibility. Therefore, it is always crucial to identify the international obligation which has
been breached. The real problem of this concept is that state responsibility does not provide
any duty for compensation for damage resulted from activities that are not prohibited by
international law. Identifying the damaging activity attributable to a state, proving the causal
link between act and the damage, determining either violation of international law or violation
of a duty of care (due diligence) are three main steps to raise a claim for damages under
international law.
 CONCLUSION

The purpose of this paper has been to present the state responsibility and state liability in
relation with the environmental damage. We have seen how the concept of state responsibility
was developed through customary law and few cases of international tribunals and arbitration.
The Work of International Law Commission had a major role in codifying the customary law
of state responsibility. Forty years of International Law Commission’s effort to codify
customary law finished by producing the Draft Articles for Internationally Wrongful Acts in
2001. Two main conditions are needed for state responsibility. One is the breach of
international obligation and another is the act that constitutes a breach must be attributable to
the state. Unfortunately, invoking the state responsibility in field of environment still remains
a problem. Due to the development and industrialisation, the number of hazardous activities
increased and many of these activities are allowed by international law. However, state
responsibility may arise only out of illegal acts. Today, there are many activities that are
allowed by international law, but may cause catastrophic damage to the environment. The
concept of state responsibility started to be insufficient and state liability has developed in the
response to that lacuna.
 BIBLIOGRAPHY

TABLE OF CASES

 US v. Canada (Trail Smelter case), April 16, 1931, March 11, 1941, 3 UN Reports of
International Arbitral Awards 1905 (1941).
 United Kingdom v. Albania (Corfu Channel Case), April 9, 1949 ICJ Reports Spain v.
France (Lake Lannoux Arbitration Case), November 16, 1957, 12 UN Reports of
International Arbitral Awards 281 (1957) Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, July 8, 1996 ICJ Reports 226 (1996).
 Hungary v. Slovakia (Gabčikovo-Nagymaros Project), September, 25, 1997 ICJ Reports
7(1997).
BOOKS

 Birnie P., Boyle A. and Redgwell C., International Law and the Environment (3rd edn,
Oxford University Press, 2009).
 Bowman M. and Boyle A.(eds), Environmental Damage in International and Comparative
Law (Oxford University Press, 2002).
 Brownlie I., Principles of public international law (7th edn, Oxford University Press, 2008).
 Crawford J., The international law commission's articles on state responsibility:
introduction, text and commentaries (Cambridge University Press, 2002).
 Hanqin X., Transboundary Damage in International Law, (Cambridge University Press,
2003).
LEGAL RESOURCES

 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and

Their Disposal, March 22, 1989, 28 ILM 649 (1989).
 Convention on Biological Diversity, June 5, 1982, 31 ILM 822 (1992).
 Convention on Long -range Transboundary Air Pollution, November, 13, 1979, 18 ILM
1442 (1979).
 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of
the International Law Commission, 53 session, UN Doc. A/56/10 (2001).
 Draft Articles on Responsibility of States for Internationally Wronful Acts, Report of the
International Law Commission, 53 session, UN Doc. A/56/10 (2001).
 Boyle A., 'State Responsibility and International Liability for Injurious Consequences of
Acts non prohibited by International Law: A Necessary Distinction?' (1990) Cambridge
Journals, Volume 39, Issue 1.