Civil Liability for Environmental Damage in Ethiopia. Legal and Institutional Analysis

Master's Thesis , 2020 , 94 Pages , Grade: 3.5

Law - Public Law / Miscellaneous

The main research question of this thesis is: Does the Ethiopian legal system put in place a civil liability regime for damage on environment? What does this civil liability regime look like?

Industrial and other activities by private entities have the capacity to damage the environment thereby causing environmental damage invariably. To tackle this problem, governments around the world has developed laws and policies having the aim of reducing the impacts that human activities are causing on the environment and preventing damage. The ne plus ultra of these laws is achieving a clean, healthy and sustained environment.

Civil liability is a type of liability regime adopted by countries to make private entities accountable for harm they create on the environment knowingly or negligently. Environmental liability, in one or another way is subjected two the civil liability regime. Numerous countries put environmental liability so that it would be governed by principles and rules of tort liability, which deals with all types of damages indifferently. However, the natures inherent with in environmental liability becomes problematic whenever we try to apply the existing tort rules and procedures. These problems include the difficulty in proving the cause of damage (causal-effect relationship) by already instilled tort rules. Besides, environmental liability demands remedy beyond compensation in order to protect the environment proactively.

This thesis therefore addresses these issues giving particular emphasis on the Ethiopian civil liability regimes. In an attempt to elucidate the problems and give possible recommendations, a thorough analysis on liability regimes adopted by Ethiopian laws dealing with environmental issues are assessed. Furthermore, institutions mandated to protect the environment and enforce these liability rules or EPO’s are scrutinized based on fulfillment of their mandated roles.

TABLE OF CONTENTS

ACKNOWLEDGEMENT

ABSTRACT

ACCRONYMS

CHAPTER ONE
PROPOSAL FOR THE RESEARCH .
1. Background of the Study .
2. Statement of the Problem
3. Research Questions
4. Objectives of the Study
4.1. General Objective
4.2. Specific objectives
5. Research Methodology
5.1. Methods
5.2. Methodology
6. Justifications of the Study
7. Scope of the Study
8. Limitations of the study
9. Literature Review
10. Organization of the Thesis
11. Citation Rule

CHAPTER TWO
CONCEPT AND DEFINITION OF TERMS
2.1. Meaning of “environmental damage”
2.2. What constitutes ‘environmental damage'? -The threshold for liability
2.3. Major theories justifying environmental protection
2.3.1. Anthropocentricism
2.3.2. Ecocentrism and ‘intrinsic' values
2.4. Degree of Faults: Fault Based, Strict and Absolute Liabilities
2.4.1. Liability without fault (Strict liability)
2.4.2. Fault Based Liability (Negligence)
2.4.3. Absolute liability
2.5. Distinctions between state liability, sate responsibility and civil liability: in the context of liability for environmental damage
2.5.1. State responsibility and state liability for environmental damage
2.5.2. Civil liability (CL)
2.6. Concluding Remarks

CHAPTER THREE
CIVIL LIABILITY REGIMES FOR ENIRONMENTAL DAMAGE: INTERNATIONAL. LIABILITY REGIMES, REMEDIES AND BASIC FEATURES
I. Introduction
3.1. An overview on some international civil liability regimes
3.1.1. The Vienna Convention (IAEA Convention on Civil Liability for Nuclear Damage), 1963; its amendment protocol, 1997; and convention on supplementary compensation.
3.1.2. The International Convention on Civil Liability for Oil Pollution Damage, 1969; and International Convention on the Establishment of an International Fund for Compensation for Oil. Pollution Damage, 1992
3.1.3. The 1999 Basel Protocol (Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal); adopted on 10 December 1999
3.1.4. The 1993 Council of Europe Convention on Civil Liability for Damage Resulting from. Activities Dangerous tothe Environment (hereinafter Lugano Convention)
3.2. The status of international civil liability regimes in Ethiopia
3.3. Conditions precedent for the application of CL for environmental damage
3.4. Tort law remedies applicable for enforcing CL for environmental damage
3.4.1. Injunction
3.4.2. Damages (Compensation)
3.4.3. Restitution and Remediation
3.4.4. Mandatory Insurance
3.5. Specific features of environmental liability as opposed to ‘traditional' civil liability regime
3.5.1. Burden of Proof: -Causation vs. Precautionary
3.5.2. The problem of standing or locus-standi in environmental law
3.5.3. The problem of orphan damage
3.6. Concluding Remarks

CHAPTER FOUR
ETHIOPIAN CIVIL LIABILITY REGIME FOR ENVIRONMENTAL DAMAGE: LEGAL AND INSTIUTIONAL FRAMEWORK
I. Introduction
4.1. The Legal Framework
4.1.1. Remedying environmental damage through Ethiopian tort law
i. Nuisance
ii. Trespass
iii. Dangerous activities
4.1.2. Criminalizing environmental damage
4.1.3. The corpus of specific environmental laws of Ethiopia on civil liability for environmental damage
i. Mining law
ii. Laws regulating pollution
4.2. Institutional framework to enforce civil liability for environmental damage in. Ethiopia
4.2.1. The role of the judiciary /courts/
i. Judicial review of administrative actions
ii. The need of establishing environmental courts
4.2.2. Environmental protection organs (EPO's)
4.2.3. Chapter summary

CHAPTER 5
CONCLUSION AND RECOMMENDATIONS
5.1. Conclusion
5.2. Recommendations

BIBLIOGRAPHY

ANNEXES

ACKNOWLEDGEMENT

First and above all, I would like to praise the omnipotent GOD, the Almighty, for providing me courage, patience and blessings from the beginning to the end ofthe study.

Second, I express my sincere thanks to my advisor Dr. Mellese Damtie, for his unreserved guidance; encouraging and prompt replies whenever I need one.

Third, I wish to thank Bethlehem, my wife, who has stood by me through all the journey. My Son, Aniel, who have known his father as only a student. I can only say both of them thank you for your support and understanding.

Last, none of this research could have been done without cooperation and assistance from my co­workers, colleagues and interviewees.

Thank you all!

ABSTRACT

Industrial and other activities by private entities have the capacity to damage the environment thereby causing environmental damage invariably. To tackle this problem, governments around the world has developed laws and policies having the aim of reducing the impacts that human activities are causing on the environment and preventing damage. The ne plus ultra of these laws is achieving a clean, healthy and sustained environment.

Civil liability is a type of liability regime adopted by countries to make private entities accountable for harm they create on the environment knowingly or negligently. Environmental liability, in one or another way is subjected two the civil liability regime. Numerous countries put environmental liability so that it would be governed by principles and rules of tort liability, which deals with all types of damages indifferently. However, the natures inherent with in environmental liability becomes problematic whenever we try to apply the existing tort rules and procedures. These problems include the difficulty in proving the cause of damage (causal-effect relationship) by already instilled tort rules. Besides, environmental liability demands remedy beyond compensation in order to protect the environment proactively.

This thesis therefore addresses these issues giving particular emphasis on the Ethiopian civil liability regimes. In an attempt to elucidate the problems and give possible recommendations, a thorough analysis on liability regimes adopted by Ethiopian laws dealing with environmental issues are assessed. Furthermore, institutions mandated to protect the environment and enforce these liability rules or EPO's are scrutinized based on fulfillment of their mandated roles.

ACCRONYMS

Abbildung in dieser Leseprobe nicht enthalten

CHAPTER ONE PROPOSAL FOR THE RESEARCH

1. Background of the Study

In ancient times, the capacity of humankind to cause significant environmental change, especially at the ecosystem level, is demonstrated through the subtle manipulation of forest cover through burning, hunting and other flora altering activities.¹ These environmental damaging activities of human kind were probably justifiable; at least for the fact that, they had no as such a foreseeable effect on nature due to the magnitude of the damage. However, one cannot disregard the reasons for the damage was attributed to the action of human beings.

In support of the above claims, plenty of documented literatures attributed environmental damaging activities to human actions.² However, it was since the time of United Nations Conference on the Human Environment (UNCHE), concern for the environment has been increasing for it has been realized that environmental damaging human activities are set to their peak.³

The responsibility to protect the environment first and foremost lies on the natural ecosystem itself. In accomplishing this task, the ecosystem has never been defected. Even mostly, through the natural, biological and evolutionary process of adaptation, species tends to adapt the natural adverse environmental situations as it happens.⁴ Rather, human beings barely adapt to these natural environmental perils; and to worsen the situation, they tend to break the interconnectedness and balance of the natural environment.

Human life is insincere without environment. The oxygen we breathe for life, the aesthetics values of creatures and the food we eat emanates from the normal functioning of the ecosystem. In as much as environment is indispensable for the life of human beings, its existence shall not always perceive as an instrumental one. Thus, a mere reduction of value of nature by human beings entails a moral (ethical) and legal liability.⁵ Though the ethical perspective is not the subject matter of this research; however, ‘law appears indispensable in establishing admissibility and imposing obligations and sanctions to those disrespectful of their duties towards the environment'.⁶ Therefore, environmental liability, more than an ethical duty, also appears as a matter of legal respons0esibility and is an essential part of environmental Law.

Responsibility for protection and liability for damage to the environment can be attributed to state and/or individuals. State responsibility and liability for damage in general and liability for environmental damage in particular is a fairly developed area of international law, though ‘difficulties in establishing a direct liability of states in relation to environmental damage under the state responsibility or liability regimes are undeniable'.⁷ Similarly in the civil liability matters, ‘there are about one dozen treaties establish rules on civil liabilities for environmental and related damage'.⁸ But here it will become a snippet to pass over without mentioning the difference in usage and application of the concept of “civil liability” or CL in different literatures. In some literatures, CL is meant to describe the subjects, i.e. the whole liability aspect of individuals ranging from human beings to corporations and organizations; as opposed to states.⁹ While in other scholarly works, the term is perceived from the perspective of its subject matters, i.e. a subject matter opposite to criminal liability. Regardless, civil liability in this research adopted the notion that damage to the environment by individuals (natural or legal persons) resulting in some kind of redress for injured environment. The non-economic cost of damage to the general environment without specific individuals complaining should also be considered in the civil liability regime.

In the international scene, protection of the environment and CL for damage has developed since the 1972 Stockholm Conference on the Human Environment though “still it is evolving and need further legal development.”¹⁰ The implementation of these general principles of responsibility needs comprehensive liability regimes at international level to address various aspects of individual liabilities for environmental perils. However, the various international CL regimes are disbursed in different treaties having specific objectives. An attempt to develop uniform rules of CL for nonspecific environmental damages, such as the 1993 Lugano Convention adopted by the Council of Europe, has been unsuccessful and have not entered into force.¹¹ At the domestic level, most developed countries adopt comprehensive regulatory systems recognizing the limitation of tort liability in governing environmental risks.

The Ethiopian legal system, with so much resemblance to other legal systems, provides liability rules for damage in general. Liability by individuals and mechanism of enforcements are laid down tortious liability¹² Criminal liability¹³ and other remedial rules available in domestic environmental laws. In addressing CL, though compensation is the widely used remedy in tort law, the interpretation of the amount of injury and the type of damage (fault based or strict) needs further analysis taking particular emphasis the special nature of environmental damages.

Thus, this research will show the application of the Ethiopian environmental damage CL regime compared to the common principles that are widely applicable in treaty based international CL regimes. As environmental liability should be framed from the perspective of prevention, deterrence and compensation, an analysis on the existing domestic legal framework on meeting these objectives is also the subject matter of this thesis. Furthermore, this thesis will also analyze the various types of civil remedies available in the Ethiopian laws and demonstrate if there are any pitfalls. Lastly, it will analyze the institutional set up in Ethiopia to enforce these remedial actions.

2. Statement of the Problem

Environmental damage is mainly attributed to the action of human beings. Though environmental protection necessitates a proactive measure, once the damage is materialized, mechanisms of compensation, criminal accountability and administrative measures should be in place with proper institutional set up.

In effect, the Ethiopian Civil Code provides a framework to handle almost all kinds of damage in its tort liability part; nonetheless, the ‘traditional rules' of CL face considerable challenges whenever environmental damage is in question. Environmental legislations Ethiopia adopted subsequently have provisions of sanction for non­observance of duties and obligations set out in their body. However, these sanctions have no comprehensive yardsticks to redress once the damage is materialized; thus, leave the resort to the provisions of tortious liability which are inadequate for environmental matters. The inclusion of an unnoticed and non-economic damage to the environment in the Ethiopian tort law is also uncertain, which would in turn leaves pure environmental damage unredressed. Besides, to remedy possible loopholes created in the existing Ethiopian laws relating to accommodation of all damage types to the environment, which also entails equivalent liability, proactive institutions that recognizes the public concern in making decisions shall also exist.

Thus, the inadequacy in the existing traditional rules (tort law) in addressing non­economic damage coupled with ambiguities on whether various environmental legislations recognizes environmental damage that may occur without notice (orphan damage) and non-economic damage which is not attached to any economic loss on individuals, requires an analysis with possible recommendations. Moreover, since liability attached to a particular damage type shall at least be equivalent with the amount of loss, benchmarked practices and implementation guidelines shall also be adopted. If not, a possible damage to the environment will not become full recoverable and the amount of compensations stated in some legislation would become arbitrary.

3. Research Questions

The main research question of this thesis which helps to play its informative role is: Does the Ethiopian legal system put in place a civil liability regime for damage on environment? What does this civil liability regime look like?

Particularly, this thesis attempted to delve into the following research questions, and, then, provide some theoretical and empirical answers.

- Are the Ethiopian civil liability rules instilled in tort laws recognized environmental damage per se ?
- What makes the traditional tortious liability different with environmental liability?
- How is damage assessed in Ethiopian law? Are the economic and non-economic aspects of the environment included in the environmental laws?
- Are the remedial measures, including compensatory remedies, for environmental liability adequate or are there any other measures?
- What does the institutional arrangement to make a person/organ liable for damages he/she/it bring on the environment looks like?
- Is the existing court structure adequate enough to enforce environmental liability and serve environmental justice?

4. Objectives of the Study

4.1. General Objective

The general objective this thesis is to analyze the CL regimes of Ethiopia in general and the existing legal instruments in particular as to their conformity with damage-in- environment perspectives. In addition, it will analyze the existing institutional set up devised to enforce CL in environmental damages.

4.2. Specific objectives

- To examine CL in environmental context and assess the Ethiopian legal regime on whether it recognizes matters relating to environmental damage.
- To evaluate the difference of tortious liability with environmental liability.
- To examine the assessment of damage in general and the inclusion of the non­economic aspects of damages in Ethiopian environmental lawsin particular.
- To explore the types of remedies for environmental damage in Ethiopia and examine the existence other remedies beyond compensation.
- To analyze at the institutional setup for making a person liable for damage caused on environment in Ethiopia.
- To evaluate the adequacy of existing court structure on enforcing environmental liability.

5. Research Methodology

5.1. Methods

Research methods suggests the data collection technique and the tools that would be used to analyze data collected for reaching a conclusion to the problem and give further recommendation. Consequently, this research employs both primary and secondary data. As part of primary data, which will help to obtain information regarding administrative measures taken and to identify problems relating to the current institutional set-up devised to enforce CL, interview with judges andofficials working in the office of EPO's will be conducted. In addition, primary data like conventions, laws, documents related administrative measures taken and cases decided will also be employed. Regarding secondary data sources; internet resources, books, journals and related publications could also be used.

5.2. Methodology

This research is a qualitative research type. It is a typical non-doctrinal research; a research about the law, which involves exposition, critical analysis and evaluation of rules and applications of the rules concerning the subject matter. Nonetheless, results or suggestions which would be obtained through a doctrinal research method could also be found.

6. Justifications of the Study

The Justifications of this study is that, it is the first ever comprehensive study to be conducted informing CL for environmental damage under the Ethiopian legal system. In environmental liability matter, there only exists a piece of article entitled as “Remedies for Environmental Wrong-doings in Ethiopia.”¹⁴ Though this journal article is informative, it is brief and only touches up on the available remedies without delving in to crucial points on the existing liability regimes for environmental damages and the institutional set ups. Thus, this research will fill the gap in the existing literature in the field. The research will also inform policy and law makers in the environmental law arena, on the gaps of the existing CL for environmental damage and suggests possible remedies.

7. Scope of the Study

It is pretty much interesting to analyze the application of core concepts of CL in environmental damage context making comparison among countries. However, for this thesis, comparison will only be used while discussing specific concepts and only when necessary. In addition, for want of time, interviews will only be conducted with Judges and practitioners at the Federal and Addis Ababa City Administration level. From the research questions sketched, the researcher strongly believes, the result from the interview in the federal level represents ideas that would be obtained from regional judges and practitioners

8. Limitations of the study

This research may encounter limitations. The first one could be lack of adequate time, because the timeallocated to accomplish the research may have its own effects on the depth of the contents. Second, lackof domestic literatures on the subject matter is also a limitation. By a preliminary look at institutions and universities library catalogue in Addis Ababa, the researcher worried that they may not have these resources. Cases in civil litigation matters for environmental damages could be specific and limited in nature (including nuisance, loss of property, and loss of health) and for this reason the researcher will only focus the normative applications of the laws and institutional arrangements. But depending on the research question, the researcher will tryto incorporate a few practical cases. In any case, the researcher will put its full effort to minimize these limitations.

9. Literature Review

Though literatures onCLfor environmental damage are available in more general terms, the most comprehensive literature on this subject matter is Mark Wilde's Book.¹⁵ As Wilde points out, whatever regulation and pollution control measures are in place, from time to time accident will occur and it is important to resolve who should bear the cost in these cases, which Wilde suggestions brings in the issue of tort. In his Book Wilde seeks to answer the question on ‘whether the law of tort can be harnessed and an effective additional weapon in the legal armory against polluters?'¹⁶ And he approaches this inquiry by digging in to the role oftort in environmental context. The other important issue in this book is tort protects private interest and it does not reflect the full cost of damage to the environment. Hence, according to him tort has drawn-backs in dealing with public interest environmental issues with non-economic value. This can be analogized to the Ethiopian CL regimes to seek a leeway to the traditional tort law in Ethiopian civil code.

The other literature worth mentioning in this subject matter is Lucas Bergkamp's Book.¹⁷ In his literature, Bergkamp pointed out that strict liability is ‘unnecessary, inefficient and pointless policy'¹⁸ ; thus, individuals sued for damage should defend themselves based on their compliance to statutory limitations. Though Bergkamp's work has much of Law and economics view for environmental protections issues, it is worthwhile to use his analysis for this thesis.

There are also some journal articles written on the application of polluter pays principle as one aspect of CLfor environmental damage, on the comparison between the aims of tort laws and environmental laws, on different remedial measures for environmental damages, the public-private dichotomy of environmental issues and so on. But with regard to the subject matter in Ethiopian laws context, there only exist a piece of work by Dejene Girma Janka. As it is already stated in the justification for the study of this thesis, CL for environmental damage is not exhaustively dealt.

10. Organization of the Thesis

The thesis is structured in five chapters. Chapter one introduces the whole thesis by describing the background, statement of the problem, significance and objectives of the study. The second chapter focuses on describing conceptual frameworks. This chapter specifically defines CLand clear ambiguities regarding the usage of the term in different literatures. It also conceptualizes environmental damages by separately defining environment and environmental damage. In defining environmental damages scholarly works, international conventions and regional treaties will be used as a source. It conceptualizes types of faults.

In the third chapter, CL regimes will be analyzed sticking on their features and the remedy they usually propose. Particularly, some international CL regimes adopted for different areas of environmental concern and their content in terms of containing definition for environmental damage forms of liability they opted to espouse and compensatory measures included with in them will be assessed. In addition, basis of liability (strict, fault based and absolute), different mechanisms of enforcing CL, and the distinct feature of environmental liability as compared to traditional CL will be assessed.

The fourth chapter deals with the legal and institutional framework of CL for environmental damages in Ethiopia. In this chapter major legislations that have environmental concerns in their content will be assessed in terms of the emphasis they have given for liability for pure environmental damage. Finally, the institutional set up to enforce CL in Ethiopia will be assessed.

Chapter five presents the conclusions drawn from the study that is based on the finding of the research and recommends possible measures.

11. Citation Rule

Throughout the whole thesis, Oxford University Standard for the Citation of Legal Authorities, 4th edition, 2012 (OSCOLA) is applied; As permitted by OSCOLA citation rule, a customized version of citation is applied for Ethiopian cases and Ethiopian laws.

CHAPTER TWO CONCEPT AND DEFINITION OF TERMS

2.1. Meaning of “environmental damage”

To give a universal definition for ‘environmental damage' is difficult for that defining the term ‘environment' and delineating its scope is also contentious. For example, Black's Law Dictionary defines ‘environmental effect', a much more close term to environmental damage or environmental harm, as “a natural or artificial disturbance of the physical, chemical, or biological components that make up the environment.”¹⁹ This definition lacks breadth as it redirects to look for a further meaning on ‘what makes up the environment'.

Thus, before delving in to giving a meaning for environmental damage, a clarification of the term ‘environment' needs to be established. Startlingly, the term ‘environment' itself is scantly defined. One author, acknowledging the difficulty to define environment, stated it as “a term everyone understands and no one is able satisfactorily to define.”²⁰ Alan Gilpin's dictionary on environmental law defines ‘environment' as,

“ The physical surroundings or circumstances in which humanity struggles to survive and thrive; it includes the planet Earth and outer space as well as the immediate province of living organisms, the biosphere. The environment of the individual includes the abiotic factors of land, water, atmosphere, climate, sound, odors and tastes; and the biotic factors of other humans, animals, plants, bacteria and viruses.”²¹

According to the above definition, environment broadly includes all the surroundings of human beings which include the earth and its outer space, biotic and abiotic factors water, air, soil, flora and fauna. Furthering this definition, the Draft Articles on Prevention of Trans-boundary Harm from Hazardous Activities incorporates cultural heritage and landscapes as an element of ‘environment'. An Experts Group ofUNEP recommended a broad definition for ‘environment' to include ‘abiotic and biotic components, including air, water, soil, flora, fauna and the ecosystem formed by their interaction' and might even include ‘cultural heritage, features of the landscape and environmental amenity', but it excluded private property.'²² Thus, the concept of ‘environmental damage' shall be envisaged from theabove definitions to portray the damage on one or all of those rudiments of the environment.

Taking a glance of the definition of environment forwarded by the Black's Law dictionary in the beginning of this chapter, ‘Environmental Damage', ‘environmental harm', or ‘environmental effect' can be defined as a natural or human disturbance on the components that makes up the environment; which includes biotic and abiotic factors, flora and fauna, landscapes and cultural heritages.

But for liability purpose, the natural disturbances shall be excluded from the definition forthat culpability for environmental harm is solely attributed to the action of humans. This is so, not because, nature has nothing to do with environmental damage, rather we only have control over our own actions but not over the natural. Besides, ‘nature has a way of healing its own wounds'²³ but activities of human beingsdo not give nature enough time to correct these glitches. Therefore, liability based damage to the environment shall be attributed to human actions and thedamageshall result in “loss of income directly deriving from an economic interest in any use of the environment, when that loss is incurred as a result of impairment ofthe environment.”²⁴ To wind up with relatively comprehensive definition of ‘environmental damage' proposed bythe Working Group (WG):

‘A change which has a measurable adverse impact on the quality of a particular environment of any of its components including its use and non-use values and its ability to support and sustain an acceptable quality of life and a viable ecological balance. ' ²⁵

Again, the threshold criterion as to how to much adverse impact constitutes environmental damage takes us to the next topic.

2.2. What constitutes ‘environmental damage'? —The threshold for liability

A threshold for environmental damage serves the purpose of identifying and verifying the enormity of harm and entailing proportional remedy. Stressing the irony of setting a threshold for environmental damage, Hanqin Xue affirmed that, ‘both in theory and practice the need for a threshold criterion has never been doubted, but what and how strict that should be has long been debated.'²⁶ The problem is inherent because all human actions and interactions with nature pose certain amount of damage. Yet, most of that environmental damage does not result fromintenttocause harm. Rather, it is the product of everyday activities such as driving cars, using electricity, heating homes, and manufacturing and disposing of consumer products.²⁷ Thresholds therefore set standards beyond which entails liability on human actions.

Numerous state and CL instruments establish a threshold of identifying the acceptable level of damage on the environment, though the standards vary significantly on the instruments and across countries. Even in the instruments, it is difficult to ‘identify consistency as to the extent of damage required for an operator to incur liability.'²⁸ Instruments and case laws used phrases such as "significant" (1992 UNECE Watercourse Convention) "serious" (1992 UNECE Industrial Accidents Convention, art. 1(d)), "above tolerable levels", "in excess of the prescribed standard," or "serious consequence" to achieve this purpose.²⁹ In the absence of harmonized international standards for environmental quality, the decision of harm substantiation is the discretion of every states legislator. But it is commonly understood that, severity is a factual inquiry whichcan only be assessed on a case-by-case basis.³⁰ Therefore, the notion that ‘ de-minimis or minimum environmental harms are not prohibited' is widely accepted basis.

2.3. Major theories justifying environmental protection

The rationales for the protection of the environment have much more to do with moral reasons. This in turn evokes the theory of environmental ethics. Environmental ethics is a decision dilemma based on an identified environmental problem and discovered cost of environmental solutions.³¹ This ethical decision basis itself on how the moral relationship between humans and the natural environment should be. In making the decision on what we ought to dofor environmental problems, one should necessarily consider combinations of fairness, justice, the flourishing of human and non-human entities.³²

As a matter of philosophical arguments in environmental ethics, philosopher's justifications for environmental protection broadly revolve around two categories; anthropocentricism and non-anthropocentricism or ecocentrism arguments. But, based on the value attached tothe environment while protecting it, these debates can be dichotomized as instrumental value and intrinsic value categories. These broad categories in turn comprises of a breakdown of justifications including self-interest justifications, economic rationale, religious reasons, Aesthetic, cultural and recreational motives and future generations interests.³³ Since these arguments are foundations to know the basics of justifications for environmental protections as a means of enforcing liabilities, it is worthwhile toreflect certain ideas on the central tenets of the diverging debates.

2.3.1. Anthropocentricism

The ethical question as to whose morality is protected when weprotect the environment rests in two possible answers; one the moral value of humans and the other isthe value of nature itself. Anthropocentric view is an outlook revolving around the first affirmation. Anthropocentrism ‘is the belief that value is human-centered and that all other beings [including nature] are means to human ends.'³⁴ According to anthropocentrism, “humans have a moral duty only towards one another; any duty they seem to have towards other species or entities is really only an indirect duty towards other people.'³⁵

Anthropocentrism has different versions that are rooted not only in the contemporary ethical philosophy of environment but also in history. Philosophers, authors and renowned figures, then and now elevated anthropocentricism by the following idioms. Protagoras claimed “man is the measure of all things; Aristotle believed ‘...all other animals and plants exist for the sake of man'; Kant stated ‘man is the ultimate purpose of creation here on earth'; Mao Proclaimed ‘.of all things on earth peoples are most precious; Gilbert Pinchot advocates nature as a resource ‘to be conserved for human welfare.'³⁶ Thus, all these theories attaches liabilities for environmental damage on human beings insofar as the unfair use of the environment affects the interest of other human beings. This again ignores the non-economic value of the environment and its worth and existence for its own self. An implementation of the ideas of this theory would result inprevalence of impunity from liability.

It is from this outlook that most environmentalists hold that anthropocentrism is ethically and legally wrong and would become a cause of environmental crisis. Acknowledging the extreme selfishness reflected within the ideas reflected on anthropocentricism, Gillespie labeled it as ‘simple human chauvinism with in narrowness of sympathy that is comparable to sexual, racial or national chauvinism.'³⁷ This crisis resulted in the rejection and later refinement of anthropocentricism that hallmarked the birth of ecocentrism.

2.3.2. Ecocentrism and ‘intrinsic' values

The dangerous approach dictated by subscribers of anthropocentric school of thought urged a new mindset that at least recognize the empirical problems the theory sermon. Ecocentrism or land ethic or biocentrism³⁸ is an outlook that considers human beings as an equal part of the natural community having no greater status. According to Taylor, this outlook bases itself on beliefs that recognizes human beings as part of a shared community of life with other living beings; living beings are part of a web of interdependence; ‘all organisms are teleological centers of life in the sense that each is a unique individual pursuing its own good in its own way; and humans are not inherently superior to other living things.'³⁹

Thus, ecocentrism theory recognizes the economic and non-economic value of the environment. Liability also exist not only for loss of economic profits for human beings from the use of the environment, rather for their distraction affecting the ecosystem itself. It is from this latter theory that most international and domestic legislations incorporate liability for pure environmental damage.

2.4. Degree of Faults: Fault Based, Strict and Absolute Liabilities

The major part in scheming rules of liability in any legal system is attributing the degree of fault for each conduct.⁴⁰ The law of tort in the two major legal systems of the word (common law and civil law) laid a basis for identifying the degree of conduct in civil wrongs. Though there are various types of liabilities⁴¹, in general, three forms of liabilities are mostly benchmarked from tort laws while discussing liability for environmental damages. These are strict liability, fault-based liability (negligence) and absolute liability. As these forms of liability are also mainly used in civil liabilities in environmental damage context, they are discussed in brief herein under.

2.4.1. Liability without fault (Strict liability)

The lack of clear understanding and agreement on the role of strict liability in tort law and the real intensity of the adjective ‘strict' have been creating doctrinal controversies. A liability in the legal sense of ‘strict liability' happen when ‘the fact that a particula r event has occurred' and ‘a claimant can obtain a remedy against a defendant, but the defendant was not necessarily at fault, or to blame, for that event occurring.'⁴² In short, strict liability is a liability without fault. But in both legal systems and in most domestic laws, there are exception labeled as force majeures such as acts of God, acts of war, necessity and so on, that discard liability even though they are also damaging events irrespective of fault. Thus, in strict liability fault is ‘neither a requirement nor a legitimating'; ratherotherjustifications for the damaging act must be provided.⁴³

In the upcoming international CL regimes section of this thesis, it is demonstrated that, most CL regimes for damage on the specific environment follows standard of strict liability. This is because, risk factor is the rationale for the very existence of strict liability⁴⁴ and risk associated with damage to the environment is also intense.

Thus, in acts like pollution or another environmental damage which their degree of harm is high, which are unquantifiable and difficult to restore, compensation may not be the desired mode of remedy; rather deterrence of risky behavior by applying strict liability provides maximum care and greater incentives for operators to take steps to prevent accidental damages.

2.4.2. Fault Based Liability (Negligence)

The acceptable definition of negligence is ‘a conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.'⁴⁵ When someone acts belowthis standard of conduct with an intention of to create a fault or in negligence, and if a harm occurs as a result, then, he/she/it should compensate the harm. The purpose of fault-based liability ‘is not punitive, since the goal is not to make the defendant worseoff than they were before the incident, but rather corrective in the sense that compensation is tied to the plaintiff's loss.'⁴⁶

TheBasel Protocol⁴⁷,for example, put in place fault-based liability as a requirement for which compensation is without financial limit.

2.4.3. Absolute liability

Absolute liability is the strictest case of strict liability. Strict liability allows some exceptions for waiver of liability but in the case of absolute liability no exception or very limited exception is allowed. Most of International CL regimes are said to be adopted strict, not absolute, because each CL regime contains various exceptions. For example, the 1963 Vienna Convention, that identifies the imposed standard as absolute, contains a narrow set of relieving circumstances; namely an incident due to armed conflict and ‘a grave natural disaster of an exceptional character.'⁴⁸

2.5. Distinctions between state liability, sate responsibility and civil liability: in the context of liability for environmental damage

The writer is compelled to clearly elucidate the underlying concepts of state responsibility, state liability andCLfor a reason that they are misconceived ⁴⁹ in their application in environmental issues. Besides, dealing with the area of CL inherently necessitates expounding the core concepts surrounding it. Therefore, for the purpose of comparisons, these three closely related yet sharply different concepts are discussed by grouping them in to two parts in the following manner.

2.5.1. State responsibility and state liability for environmental damage

The concept of state responsibility for environmental damage comes in to picture when a “State cause environmental damage by conduct which is contrary to a rule of international law.”⁵⁰ According to the International Law Commission, there is an internationally wrongful act of a State when: (a) conduct consisting of an act or omission is attributable to the State under international law; and (b) that conduct constitutes a breach of an international obligation of the State.⁵¹ Accordingly, for the responsibility of states to be invoked, the wrongfulness of the act shall first be proved. Once decided that states act wrongfully in contravention to a general or specific law of the international community, a comprehensive remedy shall be put in place. Besides, failure of attributing a lawful act having bad consequences would have a catastrophic effect, if left ungoverned. These two loopholes in an independent conception of state responsibility advanced further efforts to qualify the concept by wayof state liability.

Another issue regarding state responsibility is on whether the principle 'Every internationally wrongful act entails international responsibility of that State'⁵² as enshrined in general international law can be extended to encompass wrongful conducts on environmental harms. In this regard, significant number of literatures argues, ‘to the extent the principle reflects customary international law supported by international environmental treaties and general principles ‘it shall also extends to ‘breaches by a State of its international obligations relating to the environment.’⁵³

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¹ BL Turner II and William B Meyers, ‘Environmental Change: The Human Factor' in Mark J McDonnell and Steward TA. Pickett (eds), Humans as Components of Ecosystems: The Ecology of Subtle Human Effects and Populated Areas (1. softcover print, Springer 1997) 41.

² William L. Thomas, ‘Man’s Role in Changing the Face of the Earth' Chicago, London (1956) 10-13; see also George P. Marsh the Earth as Modified by Human Action, Scribner's Sons, 1882, Preface to the first edition.

³ Engobo Emeseh, ‘Challenges to Enforcement of Criminal Liability for Environmental Damage in Developing Countries: With Particular Reference to the Bhopal Gas Leak Disaster' (2003) 1 Oil Gas Energy Law Intell 1, 8.

⁴ Aaron N Brooks and others, ‘Adaptation of Cells to New Environments: Adaptation of Cells to New

Environments' (2011) 3 Wiley Interdisciplinary Reviews: Systems Biology and Medicine 544, 56.

⁵ Mehrzad Jamshidi, Mansour Pournouri and Seyed Abbas, ‘Distinguishing between Civil Liability and

Environmental Damage Liability' (2018) 6 Journal of Research in Ecology 1348, 1348.

⁶ Branca Martins da Cruz, ‘Environmental Responsibility under the 2004/35/CE Liability Directive in European law' (2007) 1.

<https://www.academia.edu/6514754/environmental_liability_in_european_law_under_directive_2004_ 35_ce_on_environmental_liability_with_regard_to_the_prevention_and_remedying_of_environmental _damage- accessed 8 December 2019.

⁷ Malgosia Fitzmaurice, ‘International Responsibility and Liability' [2008] The Oxford Handbook of International Environmental Law <https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199552153.001.0001/oxfordhb-

9780199552153-e-44- accessed 16 August 2019.

⁸ Mellese Damtie, Teaching Material on Environmental Law, (Bahirdar&Jimma University, 2010) 91.

⁹ Philippe Sands and others, Principles of International Environmental Law (3rd ed, Cambridge University Press 2012) 700.

¹⁰ Ibid; Peter Wetterstein, ‘Current Trends in International Civil Liability for Environmental Damage' (1994) 1 Comparative Law 23, 7.

¹¹ As at August 13, 2019 the convention is not ratified by a single state though nine states have signed. For ratification status see https://www.coe.int/en/web/conventions/full-list//conventions /treaty/ 150/ signatures ; see also Sands and others (n 9).

¹² Civil Code of the Empire of Ethiopia, Proclamation No. 65/1960, Negarit Gazeta-Gazette Extraordinary, 19thYear, No.2, 5thMay 1960.

¹³ The Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No. 414/2004, Negarit Gazeta 9th of May 2005.

¹⁴ Dejene Girma Janka, ‘ Remedies for Environmental Wrong-Doings in Ethiopia ' (2013) 2 Mekelle University Law Journal 34.

¹⁵ Mark Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the US (2nd edn, Kluwer Law International 2002) 14.

¹⁶ ibid.

¹⁷ Lucas Bergkamp, Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (Brill | Nijhoff 2001).

¹⁸ ibid 260.

¹⁹ Bryan A Garner and Henry Campbell Black (eds), Black's Law Dictionary (9th ed, West 2009).

²⁰ Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2010) 10.

²¹ Alan Gilpin, Dictionary of Environmental Law (Edward Elgar 2000) 92.

²² UNEP, ‘Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, Para. 45.' (1996).

²³ Brooks and others (n 4).

²⁴ Alexandre Charles Kiss and Dinah Shelton, Guide to International Environmental Law (Martinus Nijhoff Publishers 2007) 244.

²⁵ ‘Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities (1996), Para. 45.' (n 22).

²⁶ Xue Hanqin, Transboundary Damage in International Law (Cambridge University Press 2003) 7.

²⁷ Bodansky (n 20) 47.

²⁸ UNEP, ‘Environmental Liability and Compensation Regimes: A Review' (2003) 54 <https://wedocs.unep.org/bitstream/handle/20.500.11822/29241/EnvLCRev.pdf-.

²⁹ ibid 55.

³⁰ YannAguila and Jorge E Vinuales, ‘A Global Pact for the Environment - Legal Foundations' (Cambridge University: C-EENRG 2019) 1 61.

³¹ Andrew Kernohan, Environmental Ethics: An Interactive Introduction (Broadview Press 2012) 3.

³² ibid.

³³ For an elaborated discussion on these justifications see Alexander Gillespie, International Environmental Law Policy and Ethic (Oxford University Press 1994).

³⁴ Helen Kopnina and others, ‘Anthropocentrism: More than Just a Misunderstood Problem' (2018) 31 Journal of Agricultural and Environmental Ethics 109, 109.

³⁵ Tongjin Yang, Environmental Ethics and International Policy (UNESCO 2006) 28 <http://publishing.unesco. org/chapters/978-92-3-104039-9.pdf.-.

³⁶ Gillespie (n 33) 5.

³⁷ ibid.

³⁸ Though their scope may differ, the ideas carried by ecocentrism, land ethic, biocentrism and deep ecology have so much resemblances and are sometimes used interchangeably in literatures. Yet, the words are coined by different authors. For instance the word and concept of Land ethic is the work of Aldo Leopold; see Aldo Leopold, A Sand County Almanac (Oxford University Press); whereas the concept of deep ecology is invented by Arne Naess. For example, see, Arne Naess, ‘The Shallow and the Deep, Long-range Ecology Movement. A Summary' (1973) 16 95.

³⁹ Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics (25th anniversary edition with

special forward, Princeton University Press 1986) 99-100.

⁴⁰ A Neil Craik, ‘Determining the Standard for Liability for Environmental Harm from Deep Seabed Mining Activities' [2018] Centre for International Governance Innovation 16.

⁴¹ In tort law, there are various ranges of fault described separately while pursuing civil claims. these includes torts to land, torts to good, personality torts, statutory tort, economic torts and many more. But in practice these torts are included in negligence which encompasses the violation of various rights. For further discussion see Nicholas J McBride and Roderick Bagshaw, Tort Law, Sixth Edition (6th edn, Pearson 2018) 5.

⁴² ibid.

⁴³ Gerrit Betlem, Civil Liability for Trans frontier Pollution: Dutch Environmental Tort Law in International Cases in the Light of Community Law (Graham & Trotman/M Nijhoff 1993) 295.

⁴⁴ de La Fayette Louise Angélique, ‘International Liability for Damage to the Environment' in Malgosia Fitzmaurice, David M. Ong and Panos Merkouris (eds), Research handbook on international environmental law (Edward Elgar Publishing Limited 2010) 325-326.

⁴⁵ Edward J. Kionka, Torts: In a Nutshell (2nd edn, West Publishing Co 1992) 48.

⁴⁶ Craik (n 40) 2.

⁴⁷ ‘The 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal' <https://www.ecolex.org/details/treaty/basel- protocol-on-liability-and-compensation-for-damage-resulting-from-transboundary-movements-of- hazardous-wastes-and-their-disposal-tre-001341/- accessed 8 December 2019.

⁴⁸ See Article 4(2) of Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960 as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982.

⁴⁹ There appears some misconception concerning state liability and state responsibility. These confusions partly emanate from linguistic deficiencies in non-English languages. For example, Civil law vocabularies express the notion of ‘liability' in terms of ‘responsibility'. To consult to works of authors that acknowledge ambiguities in usage and explanation of these terminologies see Sompong Sucharitkul, ‘State Responsibility and International Liability Under International Law' 18 Loyola of Los Angeles Int'l. & Comp. L.J. 821, 820.

⁵⁰ ibid.

⁵¹ International Law Commission (ILC), Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries - 2001 Part I, Art. 1

⁵² ibid, Art.2;

⁵³ See also the arbitration award in the Trail Smelter Case, 3 Reps. Inl'l. Arb. Awards 1905 (1939-41); Ricardo Mazzeschi, ‘Forms of International Responsibility for Environmental Harm’ in Tullio Scovazzi and Francesco Francioni (eds), International Responsibility for Environmental harm (Graham & Trotman 1991) 15.

• College: Ethiopian Civil Service University (Law and Federalism)
• Course: International Environmental Law
• Grade: 3.5
• Author: Kibru Debebe (Author)
• Publication Year: 2020
• Pages: 94
• Catalog Number: V914563
• ISBN (PDF): 9783346561244
• ISBN (Book): 9783346561251
• Language: English
• Tags: civil, liability, environmental, damage, ethiopia, legal, institutional, analysis