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Is the administrative approach to liability the most effective way to address environmental damage?

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Organization
Abstract
Nowadays, science has been evolving in faster and more effective ways in order to find innovative solutions to reduce the impact that every human activity and new technology have on the environment. This scenario should be the same in the field of environmental law. However, the evolution of environmental laws and policies has been different. Particularly, the harmonization of laws to assess risks of damage to the environment has developed significantly compared to the existing liability systems to address environmental damage. Traditionally, the actions of liability for environmental damage at an international level have been governed by civil liability provisions which have led to unnecessary complexity, overlap of jurisdictions and an unsuccessful restoration of the environment in some cases. This is shown in the efforts of the International Law Commission (ILC) to develop international law to address environmental damage by effective response measures for restoration in addition to compensation. Some other examples followed the same tendency to the administrative approach to liability by means of response measures. The Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters included the concept of response measures following an industrial accident notwithstanding the civil liability nature of the protocol. The Protocol on Environmental Protection to the Antarctic Treaty rephrases a similar procedure to the administrative approach to liability implementing response actions in case of an environmental emergency. However, the first legal instrument addressing environmental damage via an administrative approach to liability is the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (The Nagoya Protocol). This paper will analyze the Nagoya Protocol as an example of administrative approach to liability in case of damage to biodiversity and will examine the challenges to implement this Protocol in domestic legislation. Key issues will be explored such as the distinction between administrative approach to liability and administrative liability in the sense of State liability, the concept of operator linked to causality, and a clear distinction between, regulatory measures targeted to minimizing risk; and, liability measures applicable after the damage has occurred, in order to provide for restoration or compensation.
Keywords
Environmental law -GMOs -Liability

Citation

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Chicago
Colmenarez Ortiz, Claudia. 2014. “Is the Administrative Approach to Liability the Most Effective Way to Address Environmental Damage?” In Panel 2C Enforcement of International Environmental Law.
APA
Colmenarez Ortiz, C. (2014). Is the administrative approach to liability the most effective way to address environmental damage? Panel 2C Enforcement of International Environmental Law. Presented at the CCIL 43rd Annual Conference : “Combustion : Energy, Resources, and Environmental Issues Igniting International Law.”
Vancouver
1.
Colmenarez Ortiz C. Is the administrative approach to liability the most effective way to address environmental damage? Panel 2C Enforcement of International Environmental Law. 2014.
MLA
Colmenarez Ortiz, Claudia. “Is the Administrative Approach to Liability the Most Effective Way to Address Environmental Damage?” Panel 2C Enforcement of International Environmental Law. 2014. Print.
@inproceedings{6914893,
  abstract     = {Nowadays, science has been evolving in faster and more effective ways in order to find innovative solutions to reduce the impact that every human activity and new technology have on the environment. This scenario should be the same in the field of environmental law. However, the evolution of environmental laws and policies has been different. Particularly, the harmonization of laws to assess risks of damage to the environment has developed significantly compared to the existing liability systems to address environmental damage.
Traditionally, the actions of liability for environmental damage at an international level have been governed by civil liability provisions which have led to unnecessary complexity, overlap of jurisdictions and an unsuccessful restoration of the environment in some cases. This is shown in the efforts of the International Law Commission (ILC) to develop international law to address environmental damage by effective response measures for restoration in addition to compensation.
Some other examples followed the same tendency to the administrative approach to liability by means of response measures. The Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters included the concept of response measures following an industrial accident notwithstanding the civil liability nature of the protocol. The Protocol on Environmental Protection to the Antarctic Treaty rephrases a similar procedure to the administrative approach to liability implementing response actions in case of an environmental emergency. However, the first legal instrument addressing environmental damage via an administrative approach to liability is the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (The Nagoya Protocol).
This paper will analyze the Nagoya Protocol as an example of administrative approach to liability in case of damage to biodiversity and will examine the challenges to implement this Protocol in domestic legislation. Key issues will be explored such as the distinction between administrative approach to liability and administrative liability in the sense of State liability, the concept of operator linked to causality, and a clear distinction between, regulatory measures targeted to minimizing risk; and, liability measures applicable after the damage has occurred, in order to provide for restoration or compensation.},
  author       = {Colmenarez Ortiz, Claudia},
  booktitle    = {Panel 2C Enforcement of International Environmental Law},
  keyword      = {Environmental law -GMOs -Liability},
  language     = {eng},
  location     = {Ottawa, Canada},
  title        = {Is the administrative approach to liability the most effective way to address environmental damage?},
  url          = {http://www.ccil-ccdi.ca/2014-rapporteurs-reports/post/2435433},
  year         = {2014},
}