THE POLLUTER PAYS PRINCIPLE AS A BASIS FOR INTERNATIONAL LIABILITY FOR ENVIRONMENTAL DAMAGE
Main Article Content
Abstract
There has been considerable scholarly debate regarding the meaning of environmental damage[i], with the divergence often stemming from its conflation with the concept of environmental pollution[ii]. In reality, pollution is a narrower concept than environmental damage, yet it represents its most serious form.
As a result, many studies have focused on environmental pollution as if it were the sole form of harm affecting the environment. National legislations, for the most part, have not explicitly defined environmental damage; instead, they have concentrated on defining pollution and the harm it causes to the environment. Therefore, in this context, we will rely on the definitions provided by legal scholars and international conventions regarding environmental damage[iii].
[i] Transboundary damage differs from ecological damage, contrary to what some may believe. The latter is narrower in scope than environmental damage, as it refers specifically to harm affecting the air, atmosphere, water, and various species of animals and plants—such as the degradation of nature, the extinction of certain fish species, or the death of some bird species, among others.
[ii] Linguistically, "pollution" (Arabic: talawwuth) derives from the root referring to soiling and mixing. For example, one might say “he soiled his clothes with mud,” meaning he stained them, or “he polluted the water,” meaning he muddied it. It also connotes corruption and impurity. The verb lawwatha (to pollute) means to defile or contaminate something. Refer to: Lisan al-Arab by Ibn Manzur, previously cited.
In specialized environmental terminology, pollution is defined as any direct degradation of the organic, thermal, biological, or radiological properties of any part of the environment—for instance, by discharging, emitting, or depositing waste or substances that may affect beneficial use. In other words, it results in a condition that is harmful or potentially harmful to public health or the safety of animals, birds, insects, fish, living resources, and plants. See also: Lisan al-Arab by Ibn Manzur, previously cited.
[iii] Kanso Miloud Zine El Abidine, International Responsibility for Environmental Damage, previously cited, p. 19.
Article Details
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
References
Transboundary damage differs from ecological damage, contrary to what some may believe. The latter is narrower in scope than environmental damage, as it refers specifically to harm affecting the air, atmosphere, water, and various species of animals and plants—such as the degradation of nature, the extinction of certain fish species, or the death of some bird species, among others.
Linguistically, "pollution" (Arabic: talawwuth) derives from the root referring to soiling and mixing. For example, one might say “he soiled his clothes with mud,” meaning he stained them, or “he polluted the water,” meaning he muddied it. It also connotes corruption and impurity. The verb lawwatha (to pollute) means to defile or contaminate something. Refer to: Lisan al-Arab by Ibn Manzur, previously cited.
In specialized environmental terminology, pollution is defined as any direct degradation of the organic, thermal, biological, or radiological properties of any part of the environment—for instance, by discharging, emitting, or depositing waste or substances that may affect beneficial use. In other words, it results in a condition that is harmful or potentially harmful to public health or the safety of animals, birds, insects, fish, living resources, and plants. See also: Lisan al-Arab by Ibn Manzur, previously cited.
Kanso Miloud Zine El Abidine, International Responsibility for Environmental Damage, previously cited, p. 19.
Mohamed Hamdawi, The Legal Basis of International Responsibility for Environmental Damage, Master's thesis in International Law and International Relations, Faculty of Law and Political Sciences, Moulay Tahar University, Saida, Algeria, 2008/2009, p. 25.
Ibid., p. 26.
Zakiyya Hajila, Nasima Attar, "The Effectiveness of the Polluter Pays Principle in International Environmental Protection," Journal of Law and Humanities, University of Achour Bouziane, Djelfa, Algeria, Vol. 17, No. 1, April 2024, p. 494.
Soumya Douba, Environmental Tax and the Polluter Pays Principle, Doctoral thesis, Tax Law specialization, Faculty of Law and Political Sciences, Kasdi Merbah University, Ouargla, 2018/2019, p. 173.
Suhair Ibrahim Hajem Al-Hayti, Legal Mechanisms for Environmental Protection within the Framework of Sustainable Development, Al-Halabi Legal Publications, Beirut, Lebanon, 1st edition, 2014, p. 225.
Youri Mossoux, "The Application of the Polluter Pays Principle to Environmental Risk Management and the Sharing of Pollution Costs," LexElectronica, vol. 17.1 (Summer 2012), p. 1.
For more details see: De Sabran Ponteves Elzear, "The Polluter Pays Principle in Community Law," European Journal of Environmental Law, France, 2008, pp. 21–60.
Alexander Kiss, Dinah Shelton, International Environmental Law, Published and distributed by Transnational Publishers, Inc., 3rd edition, New York, 2003, p. 204.
Recommendation of May 26, 1972, on Guiding Principles Concerning the Economic Aspects of Environmental Policies at the International Level, C(72)/128, OECD, 1972, available at: https://legalistruments.oecd.org/public/doc/4/4.fr.pdf, Accessed on: 12/12/2023.
Turkiya Sayeh, Environmental Protection under Algerian Legislation, previously cited, p. 162.
Hélène Trudeau, "The Civil Liability of the Polluter: From the Theory of Abuse of Rights to the Polluter-Pays Principle," Les Cahiers de Droit, Faculty of Law, University of Montreal, Quebec, Vol. 34, No. 3, September 1993, p. 786.
Afef Hammami Marrakchi, "The Application of the Polluter-Pays Principle in Environmental Law: Comparison Between Community and Tunisian Legislation," Center for Tax Studies, Faculty of Law of Sfax (C.E.F), Sfax, Tunisia, Collection No. 12, 2009, pp. 441–468.
See also: Nicolas de Sadeleer, The Principles of the Polluter-Pays, Prevention and Degradation, Brussels, Bruylant, 1999, p. 37.
Sonia Ben Tayba, "Environmental Taxation as a Mechanism for Environmental Protection," Paper presented at the international symposium on The Legal System for Environmental Protection in Light of International Law and Algerian Legislation, organized by the Faculty of Law and Political Science and the Laboratory for Environmental Legal Studies, Chadli Bendjedid University, Guelma, Algeria, December 9–10, 2013, p. 08.
Abdelghani Hassouna, The Legal Protection of the Environment within the Framework of Sustainable Development, Doctoral Thesis, Business Law Specialization, Faculty of Law and Political Science, Mohamed Khider University, Biskra, Algeria, 2012/2013, pp. 26–27.
The text of this declaration states that:
“National authorities should endeavor to promote internalization 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, considering...”
See: Article 3 of Law No. 03-10, dated July 19, 2003, concerning the protection of the environment within the framework of sustainable development, Official Gazette, No. 43, issued on July 20, 2003, p. 2.
See: Article 103 of the Tunisian Code of Obligations and Contracts and new Article 8 of the law establishing the National Agency for Environmental Protection.
Mustapha Kerd El-Oued, “Environmental Protection: A Study in Light of Efforts to Establish Environmental Principles,” article published in the online magazine Environmental Development Horizons, Issue No. 84. Available on the website:
https://www.maan-ctr.org/magazine/article/1084/,
Article posted on: May 1, 2016. Date of access: July 10, 2024, Time of access: 12:30.
Abdelnasser Ziyad Hiyajna, Environmental Law – The General Theory of Environmental Law with Explanation of Environmental Legislations, Dar Al-Thaqafa for Publishing and Distribution, Amman, Jordan, 2nd edition, 2014, p. 68.
Islam Mohamed Abd El-Samad, International Protection of the Environment from Pollution, New University Publishing House, Alexandria, Egypt, n.ed., 2016, p. 182.
Hélène Trudeau, "La responsabilité civile du pollueur," op. cit., p. 788.
Horia Hassani and Mohammed Seghir Sadaoui, “The Polluter Pays Principle as the Basis of Environmental Civil Liability,” Journal of Comparative Legal Studies, Hassiba Ben Bouali University, Chlef, Algeria, Vol. 7, Issue 2, December 2021, p. 197.
Abderrahmane Boufelja, Civil Liability for Damages and the Role of Insurance, previously cited reference, p. 117.
Abdelnasser Ziyad Hiyajna, Environmental Law: The General Theory of Environmental Law, previously cited reference, p. 70.
Karrar Saleh Hammoudi Al-Jassani, “The Principle of Prevention to Avoid Environmental Damage in International Law,” article published at:
https://www.iasj.net/iasj/download/0a8f691d7769ecc2,
Date of access: January 1, 2023, Time of access: 02:35.
Zakia Hajila and Nacima Attar, “The Effectiveness of the Polluter Pays Principle in International Environmental Protection,” previously cited reference, p. 495.
Soumaya Douba, Environmental Tax and the Polluter-Pays Principle, previously cited reference, p. 180.
Abdelnasser Ziyad Hiyajna, Environmental Law: The General Theory of Environmental Law with Explanation of Environmental Legislations, previously cited reference, p. 71 and following.
Horia Hassani and Mohammed Seghir Sadaoui, “The Polluter Pays Principle as the Basis of Environmental Civil Liability,” op. cit., p. 198.
Horia Hassani and Mohammed Seghir Sadaoui, “The Polluter Pays Principle as the Basis of Environmental Civil Liability,” op. cit., p. 198.
Brian J. Preston, “Sustainable Development Law in the Courts: The Polluter Pays Principle,” The 16th Commonwealth Law Conference, Hong Kong, April 7, 2009, D6: Environmental Law, p. 3.
Safia Zaid El-Mal, Environmental Protection within the Framework of Sustainable Development in Light of International Law Provisions, Doctoral Dissertation in International Law, Faculty of Law and Political Science, Mouloud Mammeri University, Tizi Ouzou, Algeria, 2012/2013, p. 411.
Soumaya Douba, Environmental Tax and the Polluter-Pays Principle, previously cited reference, p. 188.
For more details about the Stockholm Declaration, see the link: https://political-encyclopedia.org/dictionary/,
Date of access: July 10, 2023, at 11:30.
Jana Abu Saleh, The Environment Between Theory and Reality (Challenges of Arab Countries), Arab Scientific Publishers, Lebanon, Beirut, 1st edition, 2015, p. 271
. — A declaration was also issued concerning environmental improvement, which included a preamble and 26 principles, as well as an action plan consisting of 109 recommendations. Altogether, this marked the true birth of environmental awareness. Principle 24 states:
"International issues concerning environmental protection should be handled with the spirit of cooperation by all countries, large and small, on an equal footing. Cooperation through multilateral and bilateral agreements or other appropriate means is essential to effectively identify, prevent, reduce, and eliminate environmental damage resulting from all activities conducted in all fields, while respecting the sovereignty and interests of all states."
See also: Ayat Mohamed Saud, “The Principle of Polluter Liability in International Environmental Law,” available on the website Al-Hiwar Al-Mutamaddin, Issue No. 5799: http://www.ahewar.org,
Date of article publication: February 26, 2018. Date of access: February 13, 2023.
Soumaya Douba, Environmental Tax and the Polluter-Pays Principle, previously cited reference, p. 188.
See also: Handbook for the Vienna Convention for the Protection of the Ozone Layer (1985), Sixth Edition (2006), UNEP, Ozone Secretariat, United Nations Environment Programme.
Ayat Mohamed Saud, “The Principle of Polluter Liability in International Environmental Law,” previously cited reference.
The Convention stipulates that the costs of measures to prevent and reduce harm shall, as far as possible and as appropriate, be borne by the responsible party.
Available at the link: https://www.un.org/ar/observances/biological-diversity-day/convention
Date of access: October 1, 2023, Time of access: 20:20.
Kyoto Protocol, annexed to the United Nations Framework Convention on Climate Change,
Available at the link: https://unfccc.int/resource/docs/convkp/kparabic.pdf
Date of access: February 26, 2023, Time of access: 11:25.
Soumaya Douba, Environmental Tax and the Polluter-Pays Principle, previously cited reference, p. 191.
Mustafa Kord El-Oued, “Environmental Protection: A Study in Light of the Efforts Establishing Environmental Principles,” previously cited reference.
Jana Abu Saleh, The Environment Between Theory and Reality (Challenges of Arab Countries), previously cited reference, p. 278.
"The Paris Conference, called COP 21 (Conference of the Parties), as it was the twenty-first Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC), was held at the Paris-Le Bourget Exhibition Center from November 30 to December 12, 2015. A universal agreement text was ultimately adopted by all 195 party delegations to the Convention. A new cycle of international climate negotiations then began. This new approach is based on the contributions of all states according to their capacities, breaking away from a multilateral system that distributed greenhouse gas (GHG) emission rights to be negotiated on an international market. Climate issues are thus integrated into national strategies, both in terms of reducing GHG emissions and in adapting to the consequences of global warming—that is, in development choices with their political, economic, and social dimensions. The success of the agreement will be measured by the ability to increase national emission reduction targets, which are currently largely insufficient to keep global warming below the 2°C threshold, and by the funding that will be mobilized to achieve these targets."
Written by: Catherine Aubertin, Environmental Economist, Research Director at the French National Research Institute for Sustainable Development.
Source: https://www.universalis.fr/encyclopedie/cop-21/
Kazem Al-Muqaddadi and Ali Abdullah Al-Hawsh, Marine Environmental Protection, Academic Book Center, Amman, Jordan, n.d., 2016, p. 12.
Islam Desouki Abdel Nabi Desouki, The General Theory of International Responsibility Without Fault, previously cited reference, p. 266.
Meriem Halaimiya, “The Torrey Canyon Incident and the New Rules of International Maritime Law,” Journal of Legal Studies, Yahia Fares University, Médéa, Algeria, Vol. 8, No. 2, June 2022, p. 821.
Soumaya Dobbah, Environmental Tax and the Polluter Pays Principle, previously cited reference, p. 193.
Kazem Al-Muqaddadi and Ali Abdullah Al-Hawsh, Marine Environmental Protection, previously cited reference, p. 122.
Article 3 of the Paris Convention clarifies that the operator of a nuclear installation bears absolute liability for all damages specified in the Convention arising from a nuclear incident occurring at the installation or involving nuclear materials transported to or from it. Cited in: Hadeel Ali Mohammed Al-Muadhin and Hadi Naeem Al-Maliki, “The Risk Theory as a Basis for International Responsibility for Lawful Acts of the UN Security Council Characterized by Exceptional Danger,” Journal of Scientific Research, Faculty of Law, University of Al-Qadisiyah, Baghdad, Iraq, Part 3, Vol. 36, (Special Issue), 2021, p. 170.
The Convention, through Article 4, states: “The operator of the nuclear installation shall bear absolute liability for nuclear damage resulting from an incident within the installation or involving nuclear material sent to it; the liability of the nuclear operator under this Convention shall be absolute.” Cited in: Soumaya Dobbah, Environmental Tax and the Polluter Pays Principle, previously cited reference, p. 193.
The Convention limited liability to a single person, namely the operator of the nuclear ship, whether they own the ship or merely operate it. Article 2, paragraph 2 of the Convention provides: “No person other than the operator of the ship shall be held liable for nuclear damage.”
Article 1, paragraph 4, defines the operator as: “The person authorized by the flag state to operate the nuclear ship, or the contracting state itself when it operates the ship directly.”
The rationale for concentrating liability on the operator is that they are the one who benefits from the operation of the ship, and thus should bear responsibility for any damages caused by it.
Cited in: Hadeel Ali Mohammed Al-Muadhin and Hadi Naeem Al-Maliki, The Risk Theory as a Basis for International Responsibility for Lawful Acts of the UN Security Council Characterized by Exceptional Danger, previously cited reference, p. 108.
Abd Al-Aal Al-Deirbi, International Environmental Protection and the Mechanisms of Dispute Settlement, previously cited reference, pp. 164–165
Carina Costa de Oliveira, La Réparation des Dommages Environnementaux en Droit International [The Reparation of Environmental Damage in International Law], Doctoral thesis in law, Doctoral School of International Law, International Relations and Comparative Law (ED9), Université Panthéon-Assas, Paris, France, 2012, p. 49.
This recommendation first introduced the Polluter Pays Principle, stating: “The polluter should bear the costs related to the prevention and control measures determined by public authorities in order to maintain the environment in an acceptable condition.”
See in this regard: Ashraf Arafat Abu Hijazah, The Polluter Pays Principle, previously cited reference, p. 94. The first paragraph of the same recommendation stated: “The Polluter Pays Principle is considered a constitutional principle for member states in terms of determining the costs of necessary measures to prevent and control pollution, as determined by public authorities in member states.” Its second paragraph further emphasized the uniform application of the Polluter Pays Principle by encouraging member states to adopt a common basis for environmental policies that would promote the optimal and rational use of scarce natural resources and prevent distortions in international trade and investment. See: Michel (P.), op. cit.
Waleed Fouad Al-Mahamid, previously cited reference, p. 28.
Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules.
Mohammed Bouat, International Responsibility for Environmental Damage, previously cited reference, p. 55.
Klaus Töpfer et al., op. cit., p. 34.
Omar Mahmoud Aamer, previously cited reference, p. 323.
Romi Raphaël, Law and Environmental Administration, Montchrestien, Paris, France, 5th ed., 2004, p. 117.
Marc Pallemaerts, “The Rio Conference: Assessment and Perspectives,” Environmental Law News, proceedings of the conference held on 17–18/12/1994, Bruylant, Brussels, p. 106.
Yacine Graaf, The Role of the Judiciary in Environmental Protection, Doctoral Thesis, Legal Sciences specialization, Environmental Law Branch, Faculty of Law and Political Science, Djilali Liabes University, Sidi Bel Abbes, Algeria, 2018/2019, pp. 150–151 (adapted).
Kamel Haidoum and Dina Kawthar Warith, “Compensation for Damage Resulting from Marine Pollution – The Erika Case as a Model,” Journal of Comparative Legal Studies, Hassiba Ben Bouali University, Chlef, Algeria, Vol. 8, No. 2, 2022, p. 380.
Yacine Graaf, The Role of the Judiciary in Environmental Protection, previously cited reference, p. 152.
Jérôme Bouquet-Elkaïm, “The Erika Case: A Jurisprudential Illustration of the Complementarity Between the CLC Convention and Common Law Liability,” R.E.D.L., University of Limoges, France, No. 3, September 2008, pp. 267–276.
The European Court of Justice, before which the dispute was brought, addressed two issues in its ruling: the first concerning the definition of waste, and the second relating to the identity of the polluter based on the 1975 Waste Framework Directive. In response to the first issue, the Court stated that heavy fuel oil is not considered waste unless it is mixed with sand or water. Regarding the second issue, the Court expanded the definition of a waste producer to include the owner of the substance before it became waste, meaning that this individual can be considered a producer under the meaning of the EU Directive. The Court concluded that the disposal of waste is an obligation shared by all contributors to the waste that results in a pollution risk.
Yacine Graaf, The Role of the Judiciary in Environmental Protection, previously cited reference, p. 151.
Mohammed Derbal, The Role of International Law in Environmental Protection, previously cited reference, p. 201.
Mohammed Derbal, The Role of International Law in Environmental Protection, previously cited reference, p. 201.
Zakia Hajila, Nassima Attar, "The Effectiveness of the Polluter Pays Principle in International Environmental Protection," previously cited reference, p. 495.
Ibid., p. 496