A threshold question for designing liability rules is the degree of fault required to impose liability. This chapter begins with a discussion of the policy considerations that underlie the policy choice between strict liability and due diligence approaches to liability and an examination of the distributive implications of this choice. The chapter then describes the approaches to standards of liability found in the law of state responsibility and civil liability regimes, before examining the specific fault requirements that structure liability in the Antarctic, deep seabed and high seas regimes.

This chapter provides a brief overview of the international law relating to liability for environmental damage, and identifies, on a preliminary basis, potential issues arising in developing and applying liability rules in respect of environmental damage in areas beyond national jurisdiction (ABNJ). The chapter provides an overview of the current legal and institutional arrangements governing the ABNJ that are the focus of the book -- Antarctica, the deep seabed and the high seas – as well as highlighting some of the environmental risks posed to these areas by current and prospective activities.

In the concluding chapter, we take stock of the legal developments that are likely to shape the implementation and further development of liability rules and process in areas beyond national jurisdiction. We argue that the developments in relation to state obligations of due diligence, the widening scope of compensable damages and the potential for more inclusive rights of standing, as well as rights for states to take response measures in areas beyond national jurisdiction, provides a strengthened foundation for a more robust system of state responsibility for environmental harm in areas beyond national jurisdiction. In recognizing that the approaches to civil liability in areas beyond national jurisdiction remain underdeveloped, we examine the central challenges that remain, as well as some modest pathways towards stronger legal accountability for environmental harm in the global commons.

This chapter explores the potential role of national and international courts and tribunals in relation to claims for environmental damage to areas beyond national jurisdiction (ABNJ). Access to remedies includes facilitating access to international and national courts to initiate claims for environmental harm, but also requires consideration of the associated rules that may constrain the ability of the court or tribunal in question to provide relief, such as jurisdiction, rules on the choice of law and the recognition and enforcement of judgments rendered in such cases. The chapter begins with a discussion of the general rules and principles concerning access to remedies under the rules of state responsibility and domestic civil liability, respectively, before turning to the specific rules in ABNJ. It also addresses the substantial additional challenges that each of these sets of rules pose to realizing the goals of liability regimes, including the need to prevent environmental harm and restore the environment, to provide for effective deterrence of risky behaviour, to ensure a level playing field and to ensure adequate and prompt compensation.

The allocation of liability for environmental harm in areas beyond national jurisdiction (ABNJ) is complicated by several factors relating to the nature of the activities undertaken and the nature of environmental harm itself. These include the range of actors involved in activities that may give rise to environmental harm, and features of cumulative environmental damage, arising over a course of time either out of a connected or unconnected set of activities involving multiple actors or from external natural causes. To address these issues, this chapter outlines legal approaches to causation and the challenges that complex causal pathways may present in ABNJ. It then discusses the general approach to allocating responsibility to states and international organizations under international law and national law, and the channeling of liability to operational entities which is the principal approach in sector-specific civil liability regimes. Finally, it explores the rules that structure the allocation of liability in relation to specific ABNJ regimes and activities.

In order to realize the fundamental goals of liability rules, it is necessary to secure potential future liabilities through financial assurances. Financial assurances are key to ensuring ’prompt and adequate compensation’ and for the availability of funds to protect and preserve the environmental resources that have been harmed. This chapter examines the various types of assurances, such as insurance and compensation funds, that are currently used within civil liability regimes generally, before exploring the existing and emerging practices within the Antarctic, deep seabed and high seas regimes.

Environmental harm in areas beyond national jurisdiction (ABNJ) raises distinct issues of standing because of the collective nature of environmental interests in these areas, including who has the right (or obligation) to take the necessary response action to address environmental harm. Both international law and national law recognize that certain actors have sufficient legal interest to bring claims for environmental damage despite not directly suffering injury or loss. These developments reflect an increasing recognition of the intrinsic value of the environment and shifting conceptions of the environment as a collective good subjective to community interests. However, the parameters of the concepts that affirm collective interests in the protection of the environment are nebulous and the scenarios in which they would apply are likely to be contested. In considering the application of the rules of standing in ABNJ, this chapter explores trends in standing in relation to the environment under international law, civil liability regimes and national law before turning to how the specific regimes governing areas beyond national jurisdiction address the issue of standing.

This chapter provides an overview of the different approaches taken by the international community to address liability from environmental harm and how these approaches respond to the unique legal and practical issues associated with areas beyond national jurisdiction. Since liability rules that affect the commons environment exist in both international and national legal systems, the discussion begins with an examination of state responsibility and unharmonized domestic liability, before discussing various approaches to harmonizing civil liability rules through treaties. The discussion of approaches to liability is framed by consideration of the various purposes that liability rules and processes serve in international environmental law.

This chapter examines issues related to the definition and valuation of environmental damage in areas beyond national jurisdiction (ABNJ): what general principles govern reparation for environmental damage; what types of environmental damage should give rise to compensation or other measures of reparation; and how should such compensation or other measures be assessed in monetary terms? The chapter draws out the characteristics of, and considerations relating to, the global commons areas that might affect the approach taken to these questions, and how, if at all, compensation for environmental damage has been addressed in the existing regimes governing ABNJ under consideration in this study. To inform the discussion, the chapter examines other relevant international principles and rules that have been adopted or applied to address compensation for environmental damage at the international level.