Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law

68 Pages Posted: 6 Sep 2007 Last revised: 13 Jun 2008

See all articles by Noah Sachs

Noah Sachs

University of Richmond School of Law

Abstract

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadopted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations, grounded in regime theory from political science. Based on the model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: 1) interest conflicts between developed and developing states; 2) high transaction costs and low expected payoffs; and 3) incorporation of treaty provisions that are too onerous for states to accept. I conclude that strengthening tort remedies will require changing the substantive content of liability treaties and the process of negotiating them. I also show how liability principles can be strengthened outside the treaty-making process through diffusion of norms against transboundary environmental damage.

Keywords: torts, environmental law, international law, hazardous waste, transboundary, transnational, remedies, treaty

JEL Classification: K13, K32, K33

Suggested Citation

Sachs, Noah, Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law. UCLA Law Review, Vol. 55, p. 837, 2008, Available at SSRN: https://ssrn.com/abstract=1012323

Noah Sachs (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States
804-289-8555 (Phone)

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