Environmental Liability and the Interplay between EU Law and International Law  book cover
1st Edition

Environmental Liability and the Interplay between EU Law and International Law

  • Available for pre-order on June 30, 2023. Item will ship after July 21, 2023
ISBN 9781138936669
July 21, 2023 Forthcoming by Routledge
360 Pages

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USD $145.00

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Book Description

The role of law in responding to global environmental problems and the interplay between different levels of regulation and governance is becoming increasingly relevant in the field of liability and reparation for environmental damage. This book examines the relationship and reciprocal influences between the EU and the international legal order in a multilevel and comparative perspective, in relation to the ongoing efforts to elaborate effective regimes of liability and reparation for environmental damage. It offers a comparative analysis of legal developments in the field of environmental liability within the EU and at the international law level and addresses questions concerning the impact of such interaction on the development, implementation and enforcement of appropriate responses to environmental damage within the respective legal orders and on a global level.

Given the book’s focus and the transnational legal dimension of the issues covered, this volume will be of great interest to legal academics and researchers working in the environmental law field from an EU law and international law perspective, as well as more generally to scholars interested in the study of the relationship between EU and international law. Outside academia, the book will also be of great interest to practitioners wishing to get insights into the application of the law of environmental liability in the EU and at the international law level.

Table of Contents

Introduction: Relevance of the Topic and Scope of the Analysis

Background: the problem

The concept, role and function of liability in the environmental context

Environmental liability and access to justice

    1. Access to justice in environmental matters
    2. Access to justice and environmental liability
    3. From theory to practice: current developments in environmental liability

    4. The global picture
    5. The elusive response of international law

      Scope and aims of this book

    7. Theoretical background
    8. Focus, methodological approach and structure of the book



Part I



Chapter 1: The Law of State Responsibility and its Application to Environmental Damage

  1. Introduction
  2. the responsibility of States for Wrongful Acts: general principles

    Transboundary Harm Prevention and State Responsibility

    1. Early developments and evolution of the primary rules
    2. From the no-harm to prevention
    3. Due Diligence and environmental liability
    4. The ‘significant harm’ trenshold
    5. The link of causality
    6. From transboundary harm prevention and responsibility to States’ Environmental liability

    7. The concept of environmental damage
    8. Reparation under the law of State responsibility
    9. Valuation and assessment of environmental damage
    10. Current challenges of the Law of State Responsibility in the environmental context

    11. Non-State actors and State Responsibility
    12. The erga omnes character of environmental harms

    State responsibility for environmental harm in international states practice

    Concluding remarks and assessment


    Chapter 2: The Quest Towards an International Law Framework of States’ Environmental Liability in the Work of the ILC

  3. State liability as a Primary rule of international law
  4. Environmental liability in the work of the ILC: from international liability to allocation of losses
  5. Response measures and ex-post prevention in the environmental Field: between primary and secondary rules?
  6. Conclusions

    Chapter 3: Civil Liability for Environmental Damage in International Treaties

  8. Introductory remarks
  9. The international liability framework for nuclear damage
    1. The 1960 Paris and 1963 Vienna Convention
    2. The role of the State in the Nuclear Liability Regime
      1. State liability under the 1963 Vienna and 1960 Paris Convention

    3. Revisiting and enhancing the international nuclear liability regime
      1. The 1988 Linking Protocol
      2. The 1997 Vienna Amending Protocol
      3. The 1997 Convention on Supplementary Compensation (CSC)
      4. The 2004 Protocols amending the Paris and Brussels Convention

    4. The international nuclear liability framework: an assessment

  10. International civil liability regimes for sea pollution damage
    1. The 1969 Civil Liability Convention and the 1971 Fund Convention
    2. The 1992 revision Protocols of the oil pollution liability framework
    3. The definition of oil pollution damage
    4. Revising the amount of compensation
    5. The International Oil Pollution Compensation (IOPC) Fund
    6. The 2003 Supplementary Fund
    7. Oil pollution liability treaties in a multilevel context

  11. Complementing the oil pollution regime: the HNS and Bunker oil liability conventions
  12. the international liability framework and the protection of the marine environment
  13. ‘Second generation’ environmental liability agreements
    1. The 1993 Council of Europe’s Lugano Convention
    2. The Nagoya-Kuala Lumpur Supplementary Protocol on Liability for Biodiversity Damage
      1. Liability and Redress in the framework of the Biodiversity Convention
      2. Liability for Damage caused by LMOs

    3. The Liability Annex to the Madrid Protocol on Environmental Protection

  14. Conventional systems of international liability: a layered framework
  15. Soft law developments in the field of environmental liability
  16. Concluding remarks
  17. Part II



    Chapter 4: The EU Approach to Environmental Liability: The 2004/35 Environmental Liability Directive


  18. Introduction
  19. Historical Background
  20. The underlying legal and policy rationales
  21. The Directive’s main elements and scope of application
    1. Definition of ‘environmental damage’
    2. The natural resources covered
      1. Damage to biodiversity
      2. Damage to water
      3. Damage to land

    3. A limited approach to environmental damage?
    4. The notion of operator and the activities covered
    5. The Directive’s temporal scope of application
    6. Exceptions and defences under the Directive
    7. Questions of causation and plurality of responsible parties

  22. enforcing environmental liability
    1. Combining prevention and reparation for environmental harm
    2. The competent authorities and the enforcement of the ELD’s liability regime

  23. Remedies
  24. issues of access to justice under the ELD
  25. harmonizing environmental liability in the EU: assessing the ELD and its potential added value
  26. Concluding remarks

    Chapter 5: Transnational Harm in Europe and the Potential for a Harmonised Legal Framework


  28. Introduction
  29. The harmonisation of conflict of law in Europe
  30. The brussels I regulation and its application to transboundary environmental damage
  31. Rome II regulation and the determination of applicable law
  32. Transnational corporate litigation before domestic courts in Europe
  33. Jurisdictional aspects, corporate liability and duty of care
  34. The harmonization of EU private international law rules: An assessment
  35. transboundary environmental liability litigation in Europe: perspectives after the ELD
  36. The new proposal for a directive on corporate sustainability due diligence

Part III



Chapter 6: The EU’s Contribution to International Law-making in the Field of Environmental Liability


The EU’s participation in international agreements: general remarks

The principle of conferral and EU’s external competence

3.1. Express external competences

3.2. The doctrine of implied external powers

3.3. Choosing the appropriate legal basis

The practice of EU external relations

4.1. Mixed agreements

4.2. Member States acting as ‘trustees’ of the EU

The duty of cooperation and its impact on Member States’ external action

Reflections on the relationship between the EU legal order and international law

The participation of the EU in international environmental liability agreements

7.1 Liability agreements with an environmental dimension: the Nagoya-Kuala Lumpur Supplementary Protocol

7.2 Disrupting interaction?

7.3 The EU’s involvement in international civil liability treaties on marine pollution and nuclear damage

7.3.1. The external relations implications of Brussels I Regulation

7.3.2. The impact of the ELD on the EU’s participation in the marine pollution civil liability regime

7.4 EU’s and Member States’ ratification of international liability conventions

Interaction and coordination between liability regimes in a multilevel context

8.1. EU law and the international liability conventions: the practice of disconnection and non-affect clauses

8.2. Coordination between the ELD and liability conventions on marine pollution and nuclear damage

8.3 Article 4 of the ELD

Environmental policy and governance perspectives on the interaction between the ELD and international law

Concluding remarks


Chapter 7: Substantive Aspects of the Interplay between EU Law and International Environmental Agreements


    1. Introduction
    2. The legal status and impact of international treaties to which the EU is a party in the EU legal order
    3. 2.1. The binding character of EU international agreements and the CJEU’s jurisdiction over them

      2.2. Primacy of EU international agreements

    4. The CJEU’s case-law and its approach to direct effect of international norms
    5. Consistent interpretation
    6. Towards a harmonious approach to the relationship between EU and international law
    7. Consistent interpretation and the mutual supportiveness of EU law and international law in the field of environment
    8. Interim findings
    9. Between mutual supportiveness and complementarity in the CJEU’s case-law on environmental liability
    10. Interactions and potential synergies between liability regimes in a multilevel context


    12. An evolving scenario
    13. General trends and emerging principles
    14. Environmental harms and the relationship between EU and international law: towards mutual supportiveness?
    15. Closing remarks

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Dr Emanuela Orlando is Lecturer in Environmental Law at the School of Law, Politics and Sociology of the University of Sussex.