ABSTRACT
Environmental liability is the legal responsibility to provide a remedy for damaging the environment. Activities that can give rise to environmental liability range from pollution of air, land, and water to the effects of military conflicts; to the release of genetically modified organisms; to climate-changing actions. States, individuals, and other entities have mutual duties to prevent harm to the environment from their activities and activities under their responsibility or control, based in international regimes, customary international law, and domestic law (see for instance the Preventive action principle). These obligations may also be owed to the international community as a whole (such obligations are called “erga omnes”), indigenous peoples and local communities, or future generations. To incur environmental liability there must be an obligation to prevent or avoid harm, a causal link between the responsible party’s activity and the harm, and a remedy for the harm. Sanctions include financial compensation, in-kind restoration, and criminal penalties (see International Law Commission 2001). Environmental liability incentivizes prevention of harm, provides accountability, allocates costs of damage, and ensures environmental restoration. Where natural incentives risk depleting or destroying a natural resource (see Tragedy of the commons), legal liability and privatization of the resources are alternative management strategies (Sands and Peel 2012.
