Current International Law Relating to Site Contamination

Chapter

Abstract

This chapter contains a detailed review of international, regional and bilateral law of relevance to site contamination, whilst noting that no binding international instrument exists on the issue. There is a particular focus on legal and policy developments in the areas of environmental protection, soil protection, chemicals and hazardous waste, state responsibility and civil liability. Comparisons and lessons are drawn from this review so as to inform the discussion of a possible international approach to site contamination in later chapters.

3.1 Introduction

To date, there has not been any detailed review of the international law on site contamination, although there have been several studies and brief surveys of domestic site contamination laws around the world (e.g., Visser 1993; Ferguson 1999; Christie and Teeuw 1998; Kadas et al. 2008; Andersen 2000; Isted and Lawrence 2012). Some reviews of international law have been undertaken which are of limited relevance to site contamination, mainly because they focus on related issues of soil protection, environmental liability and hazardous substances (Hannam and Boer 2002; Brunnée 2004; Daniel 2003; Lammers 2007). However, none of these surveys specifically address the issue of site contamination and there remains a distinct lack of dialogue on the subject at the international level.

The obvious explanation for this situation is the absence of any multilateral environmental instrument or other global initiatives specifically directed to site contamination to date. However, in the many hundreds of international agreements on environmental matters, including regional and bilateral arrangements, there is at least the potential for some of these to have relevance to the subject of site contamination, or to provide a vehicle for the future development of more specific measures on this subject. The examination of site contamination law at the international, regional and bilateral levels in this chapter will be divided into two parts: regulatory measures and liability measures. Section 3.1 (regulatory measures) will focus on soils, pollution/hazardous substances and general environmental protection, while Sect. 3.2 (liability measures) will focus on state responsibility and civil liability for environmental harm.

These are the particular elements of international environmental law that are potentially of most relevance to site contamination. The issue of soil protection, for example, has attracted increasing attention at the international and regional level since the late 1990s resulting in some efforts to improve domestic soil legislation. These controversial initiatives are still being developed, and thus are yet to be implemented at the domestic level, but they provide valuable insights into how efforts to promote domestic site contamination law might be pursued.

Some similarities between the soil protection, pollution/hazardous waste and site contamination issues, particularly in terms of public awareness and the legal implications of regulation, allow useful lessons to be drawn for the purposes of this book. General environmental protection laws, although they tend to contain little or no explicit reference to site contamination, may in some cases be the only existing legislation with any (albeit indirect) bearing on the issue. Such general laws also tend to be the pre-cursor to specific legislation on site contamination in many countries, and it is instructive to understand the process by which domestic legislation evolves in this regard.

Likewise, the principles of state responsibility and civil liability for environmental harm have been selected for analysis because they have potential implications for the domestic regulation of site contamination. States have a responsibility to prevent unlawful acts or omissions within their own borders from causing environmental harm in neighbouring States, and to remedy any harm that is caused. This principle could arguably extend to some instances of site contamination, where there is a transboundary element involved. Civil liability for environmental harm usually involves obligations to make restoration for harm caused by dangerous or hazardous (but not necessarily unlawful) activities. The polluter pays principle is one example of a civil liability measure, and is widely cited in support of regulating site contamination. Other forms of civil liability with potential relevance for site contamination have also been proposed, with varying degrees of success.

Although some of the legal instruments that are discussed below exclusively address one of the above issues, others are not so clearly defined, and may be capable of falling into more than one of the above categories. Where appropriate, links between categories are referenced.

3.2 Terminology

3.2.1 International Law

The term ‘international law’ will be used here to include multilateral, regional and bilateral agreements, decisions of international courts and tribunals, customary international law, and soft law, such as resolutions and declarations by international organisations. International law is generally understood to have an essential function of regulating the conduct of States in their relations with each other and is grounded in the consent of States (Desai 2004: 105).

3.2.2 Regional Law

Legal initiatives at the regional level will be examined primarily in accordance with the geographical location and/or economic groupings of countries. On this basis, the following regional law-making bodies are referred to: the United Nations Economic Commission for Europe (UNECE); the European Union (EU); the Commission for Environmental Cooperation for North America (CEC); the Association of Southeast Asian Nations (ASEAN); the South Pacific Regional Environment Programme (SPREP); and the African Union.

The UNECE was founded in 1947 and is one of five regional commissions of the United Nations. It has 56 member countries, although any interested member of the United Nations and even some non-governmental organisations may participate in its activities. The UNECE provides a forum for cooperation on issues such as economic integration, environment, housing and land management both in Europe and elsewhere.

The CEC was created in 1994 through the North American Agreement on Environmental Cooperation, a side agreement to the North American Free Trade Agreement. The CEC comprises three member countries (Canada, the United States and Mexico) and promotes cooperation on environmental issues of ‘continental concern’, including those arising through trade-related activities between the member countries.

ASEAN was formed in 1967 and currently has ten member countries: Indonesia, Malaysia, Philippines, Singapore, Thailand, Brunei Darussalam, Vietnam, Laos, Burma and Cambodia. SPREP, which in 2004 was renamed the Pacific Regional Environment Programme, was established in 1982 to promote regional cooperation, environmental protection and sustainable development. It has a total of 26 participating countries, including all 22 South Pacific island countries and territories and four countries with direct interests in the region (Australia, France, New Zealand and the United States).

3.2.3 Bilateral Law

‘Bilateral law’ describes instruments or arrangements involving two countries, which may or may not be geographically adjacent to one another. The arrangements, such as bilateral agreements, exchanges of notes and memoranda of understanding, may exist between governments and/or agencies and organisations (e.g., the United States Environmental Protection Agency and its foreign counterparts).

3.2.4 Soft Law

The term ‘soft law’ generally refers to non-binding instruments, such as United Nations resolutions and declarations, memoranda of understanding or exchanges of notes between heads of state or national organisations, statements, principles, codes of conduct, recommendations and action plans made by major international organisations (Hannam and Boer 2002). Non-binding instruments may exist at the international, regional or bilateral level. Soft law consists of general norms or principles rather than rules, and is therefore not readily enforceable through binding dispute resolution (Boyle 1999: 901). An important aspect of soft law is its potential for becoming law in the future, through state practice (Shelton 2008: 13). It also offers an advantage in that it is more flexible and more quickly negotiated than ‘hard law’ (Shelton 2008: 15).

3.2.5 Customary Law

Norms of customary international law evolve from two main sources: the general and consistent practice of States (state practice) and the belief by states that they are legally obliged to follow this practice (opinio juris) (Roberts 2001: 757). A useful distinction between these two sources is made by Roberts (2001: 757, citing D’Amato 1971: 49) in categorising the former as actions and the latter as statements. State practice may be evidenced by, for example, national legislation, government statements, restatements of the law, and diplomatic instructions. Treaties and declarations are generally thought to represent opinio juris because they are statements about the legality of action, rather than examples of that action (Roberts 2001: 758). Roberts further distinguishes between ‘traditional custom’, which emphasises state practice, and ‘modern custom’, which focuses on opinio juris.

Article 38 of the Statute of the International Court of Justice (ICJ) states that the ICJ, in making its decisions, shall apply ‘international custom, as evidence of a general practice accepted as law’ (art. 38(1)(b)), as well as ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations’ (art. 38(1)(d)). The latter are to be applied as ‘subsidiary means for determination of rules of law’.

3.3 Regulatory Measures

3.3.1 Soil Protection

Soil protection legislation involves measures that are specifically directed to the prevention and management of erosion, pollution and degradation of soil, particularly through promotion of the conservation and sustainable use of soil (Hannam and Boer 2002: 23, citing Christy 1971). Therefore, site contamination is merely one issue affecting soil use and soil protection. In some instances it might be assumed that protective measures are inadequate or come too late to safeguard soil quality where a site has already been contaminated. However, the concept of soil protection may be important not only at the pre-contamination (preventive) stage, but also in the management of ongoing contamination, closure of facilities, and remediation works.

Particularly in Europe, soil protection initiatives are being used as a vehicle for the prevention, assessment, management and remediation of contaminated soils, as distinct from—or sometimes in combination with—other site elements such as groundwater. On this basis, soil protection measures warrant closer scrutiny.

3.3.1.1 International Level

In response to a perceived increase in awareness of soil issues at the international level, a survey of international and regional measures relevant to soil protection was completed by Hannam and Boer for the IUCN in 2002. In their report, Hannam and Boer (2002: 57–78) review both binding and non-binding legal instruments and initiatives on soil. They conclude that, while some multilateral environmental treaties ‘contain elements that can assist in achieving sustainable use of soil, […] none are sufficient in their own right to meet the requirements of international environmental law in relation to soil’ (Hannam and Boer 2002: 59). They note (at 62) that the provisions of relevant multilateral agreements are generally ‘tangential to the needs of the soil as such.’ This view has subsequently been supported by Wyatt (2008: 192).

To date, the only binding international agreement with a specific, clearly defined role of soil protection is the 1994 United Nations Convention to Combat Desertification (UNCCD). UNCCD focuses primarily on the prevention and mitigation of soil degradation in arid, semi-arid and dry sub-humid regions, which together comprise approximately one-third of the world’s land area. These regions are particularly susceptible to desertification, a process which already affects millions of inhabitants as well as fragile ecosystems. The definition of ‘land degradation’ in the Convention is expressly limited to these specific regions, thereby excluding any form of land degradation in most developed countries.

The Convention promotes measures for the sustainable development of affected land areas, including activities aimed at the prevention or reduction of land degradation, rehabilitation of partly degraded land, and reclamation of desertified land (art. 1(b)). According to Article 1(b)(f) of the Convention, the term ‘land degradation’ describes a

reduction or loss, in arid, semi-arid and dry sub-humid areas, of the biological or economic productivity and complexity of rainfed cropland, irrigated cropland, or range, pasture, forest and woodlands resulting from land uses or from a process or combination of processes[.]

Degradation may be induced by both natural causes and human activities, and may take a variety of forms, including soil erosion, vegetation loss and the ‘deterioration of the physical, chemical and biological or economic properties of soil’ (UNCCD, art. 1(b)(f)). The latter is the most relevant to soil contamination, although it is clearly limited to particular types of land (i.e. rural areas) which may not be the most heavily impacted by contaminating activities, as these tend to be located in urban or industrial centres.

Parties to the Convention are required to develop domestic legislation to support its objectives. Under Article 5(e), signatories undertake to

provide an enabling environment by strengthening, as appropriate, relevant existing legislation and, where they do not exist, enacting new laws and establishing long-term policies and action programmes.

This obligation could encompass soil protection legislation, but again only in developing countries affected by desertification issues. National, sub-regional and regional action plans for combating land degradation are required by the Convention (UNCCD, Part III), and non-affected developed countries must provide financial, technical and scientific assistance to help affected countries meet their obligations (UNCCD, arts. 16–21). The annexes to the Convention provide specific implementation plans for five affected regions, comprising Africa, Asia, Latin America and the Caribbean, the Northern Mediterranean, and Central and Eastern Europe (UNCCD, annexes I-V).

The limited focus of UNCCD has been criticised since its inception (e.g., Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen 2001: 160) and efforts are now underway to expand its scope to other forms of land degradation (Conference of the Parties to UNCCD 2007). This expansion reflects a growing understanding of the causes and impacts of land degradation, some of which have emerged only in the past 15 years (Conference of the Parties to UNCCD 2007: 15). A 10-Year Strategic Plan, which covers the period 2008–2018, was unanimously adopted at the 8th Conference of the Parties in 2007 (Conference of the Parties to UNCCD 2007).

However, the 10-Year Strategic Plan does not refer specifically to soil contamination, nor does it expressly extend the scope of the Convention to all forms of land degradation, such as those occurring in developed countries. In general terms, it seeks to capitalise on the strengths of the Convention, and identifies the ‘vision’ for the future as being ‘to forge a global partnership to reverse and prevent desertification/land degradation and to mitigate the effects of drought in affected areas’ (Conference of the Parties to UNCCD 2007: 16), an objective which could be construed more broadly over time. At the 9th Conference of the Parties in 2009, it became clear that any efforts to extend the scope of the Convention will face significant difficulties (International Institute for Sustainable Development 2009).

Two early policy instruments, the World Soil Charter (Food and Agriculture Organization of the United Nations 1981) and the World Soils Policy (United Nations Environment Programme 1982) were intended to promote international cooperation in the rational use of soil resources. They are not binding, but are generally accepted as the global ‘soft law’ for soil and are credited with raising the international profile of soil conservation (Hannam and Boer 2002).

The World Soil Charter was designed to encourage the best possible use and conservation of soil, and contains governing principles and guidelines for future action. It broadly recognises the scarcity of soil as a resource and the threat presented by its mismanagement. The Charter refers briefly to pollution as one type of soil degradation, and the need to avoid permanent degradation of good quality soils (Food and Agriculture Organization of the United Nations 1981, principles 3 and 11). It calls on governments to develop institutional frameworks for monitoring soil management and assessing potential hazards of degradation. The World Soils Policy contains more technical guidelines for action (United Nations Environment Programme 1982).

Both the Charter and the Policy are over 30 years old and, as critics note, soil degradation is now much more serious and widespread than at the time of their creation. Hannam and Boer 2002: 61) comment that, although many of the principles contained in the instruments are still relevant, they ‘fall well short of the basic necessities of a modern day suitable non-binding “soft law” instrument’ and it is time for them to be superseded.

Amman Resolution on Legal Aspects of the Sustainable Use of Soils (2000)

The World Conservation Congress’ Amman Resolution on Soils requests the IUCN Environmental Law Programme to ‘investigate the need for and feasibility of further developing international environmental law […], in particular through an international instrument for the sustainable use of soils’ (World Conservation Union 2000: para 3). The Amman Resolution has been supplemented by further WCC Resolutions in 2004 and 2008, which more specifically define the work to be done by the IUCN, ultimately through its Commission on Environmental Law’s Specialist Group on Sustainable Use of Soil and Degradation (SGSS&D) (World Conservation Union 2004, 2008).

In response to the WCC resolutions, the IUCN’s Environmental Law Programme continues to work on the development of an appropriate international legal framework, based primarily on the groundwork already laid by Hannam and Boer (2002; Boer and Hannam 2011). The international soil science and environmental law communities expressed a preference for this framework to be in the form of a protocol attached to an existing global treaty. Accordingly, the SGSS&D prepared two draft instruments, one as a draft protocol to the Convention to Combat Desertification, and the other as a draft protocol to the Convention on Biological Diversity (Boer and Hannam 2011: 6).

The Draft Protocol for the Security and Sustainable Use of Soil, which was prepared in 2009, is the option favoured by Boer and Hannam. They contend (2011: 7–8) that the Draft Protocol would help improve the operation and effectiveness of the Convention to Combat Desertification, which currently does not have a protocol. The Draft Protocol would be compatible with the integrated approach to soil contained in the Convention, and would provide a ‘significant basis on which to develop national legal mechanisms to enable the Parties to meet their obligations’ under both the Convention and the UNCCD 10-Year Strategy (Boer and Hannam 2011: 7).

Proposed provisions of the Draft Protocol include general measures regarding national legislation for the security and sustainable use of soils. There are provisions on the identification of existing or potentially threatening processes to soil security and ecological standards. Various implementation tools are also outlined, such as national policies and strategies, management plans, and ecological soil standards, as well as technical, monitoring and financial obligations. In addition, the Draft Protocol contains a provision on liability and redress (Boer and Hannam 2011: 15, app. 2).

Tutzing Proposal for an International Soil Convention (1998)

The Tutzing Proposal was put forward in 1998 by a group of academics and scientists from across the world (Held et al. 1998) and supported by the International Society of Soil Science (International Centre for Physical Land Resources 1999: 5–6). It recognises the main ecological functions of soil and defines ‘soil degradation’ as ‘damage to and the destruction of soils and of soil functions’, including by way of contamination (Held et al. 1998). Actions to be taken by governments to achieve sustainable use of soils are outlined, encompassing regulatory measures, reviews of national legislation, creating ‘soil degradation syndrome’ databases, soil monitoring, increasing public awareness, and assisting developing countries to address problems such as contamination (Held et al. 1998).

The Tutzing Proposal promotes a binding international soil instrument. It has not been pursued formally at the international level, although it has led to much discussion and recognition of the benefits of taking global action to protect soil (Hannam and Boer 2002: 71). In 1999, the 2nd International Conference on Land Degradation and Desertification passed a resolution ‘seeking the introduction of an international soil conservation instrument’ (International Union of Soil Sciences 1999; Hannam 2004: 1). The IUCN Environmental Law Centre was also approached by the supporters of the Tutzing Proposal to investigate more closely the feasibility of a global soil instrument (Hannam and Boer 2002: 72). However, the Tutzing Proposal has not at any stage been considered by States as a likely candidate for formal adoption, and it is now outdated by more recently proposed soil documents (Futrell 2007; Boer and Hannam 2011).

3.3.1.2 Regional Level

There is currently no comprehensive regional agreement on soil protection anywhere in the world. However, the European Union has been the most active region in the area of soil protection. European efforts to improve soil protection date back to the 1972 European Soil Charter (Council of Europe 1972), which inter alia aims to protect soils against damage from human causes, and to promote the rehabilitation of damaged soils (Hannam and Boer 2002: 60). The tenets of the European Soil Charter were reaffirmed 20 years later in the Council of Europe Recommendation on Soil Protection (Council of Europe 1992). The Recommendation on Soil Protection recognises that soil, as a finite natural resource, should be protected from pollution and practices which damage soil structure. It addresses issues such as the heavy metal contamination of soil.

The 1998 Soil Protocol to the 1991 Convention on Protection of the Alps, while expressly confined to the European alpine environment, is the only binding agreement on soil protection in the world apart from UNCCD. In addition, general environmental protection instruments, such as the 6th Community Environment Action Programme (European Parliament/Council of Europe 2002) and the Draft European Charter on the Environment and Sustainable Development (Council of Europe 2003), have prioritised the soil protection issue and identified specific soil threats. Most recently, the European Commission released its soil protection strategy, including the draft Soil Directive, in 2006 after lengthy preparations (European Commission 2006a, b).

European Union Protocol on the Implementation of the Alpine Convention of 1991 in the Field of Soil Conservation (1998)

The Soil Protocol (to the Convention on the Protection of the Alps) entered into force in 2005 for its nine signatories (the European Union, Austria, Switzerland, France, Germany, Italy, Liechtenstein, Monaco and Slovenia). The Protocol is limited to the alpine regions contained within the borders of its signatories, and is largely preventive in character. Parties have a general obligation to ‘do everything in their power to minimize, through preventive action, inputs of harmful substances into the soils through water, air, waste and other substances harmful to the environment’ (art. 15(1)).

More specifically, Parties must avoid soil contamination and implement environmentally compatible measures for waste management (art. 17(2)). Environmental liabilities and ‘suspicious landfills’ must also be surveyed and documented, together with an assessment of their condition and hazard potential (art. 17(1)). To avoid soil contamination occurring through the use of dangerous substances, Parties are to introduce technical regulations and other domestic measures to improve knowledge and expertise (art. 15(2)). Soil rehabilitation is required in some circumstances; for example, where tourism has caused significant soil or vegetation damage, the Parties must ‘take the necessary remedial action’ as soon as possible (art. 14(3)). Article 7(4) also states that, ‘where natural conditions allow it, disused or impaired soils, especially landfills, slag heaps, infrastructures or ski runs, shall be restored to their original state or shall be recultivated’ (art. 7(4)).

Draft EU Framework Directive for Soil Protection (2006)

In 2006, the European Commission presented a draft Framework Directive for the Protection of Soil (‘draft Soil Directive’), in an attempt to fill a perceived gap in existing European environmental legislation. The aim of the draft Soil Directive is to establish a common strategy for the sustainable use of soil by integrating soil concerns into other policies, preserving soil functions, preventing threats to soil and restoring degraded soil. Neither the high variability between soil types and functions across Europe, nor the fact that soil is mostly privately owned, were ultimately viewed by its proponents as obstacles to the draft Soil Directive (European Commission 2006a: preamble, paras 5 and 12).

In developments leading to the draft Soil Directive, soil contamination was identified as one of eight major threats to soils in the European Union (European Commission 2002). Contamination is referred to at length in the preamble to the original draft Directive, and specific measures to be taken by Member States are set out in Chapter III of the Directive. Member States would be obliged to take preventive measures to limit the introduction of contaminants, both intentional and unintentional, into the soil. They would also have to identify potentially contaminated sites (art. 10(1)) within their territory and establish a national, publicly accessible inventory of them, which would be reviewed every 5 years (art. 10(2)). An evaluation of the risk would have to take into account the current and approved future use of the land in question (art. 10(1)).

Under the original draft Directive, Member States would have to task a competent authority with identifying the location of all potentially contaminated sites within five years of the Directive being transposed into national law (art. 11(2)). Potentially contaminating activities are listed in Annex II of the draft Soil Directive and are considered ‘contaminating’ whether they took place in the past or are ongoing. The competent authority would be expected to measure the concentration levels of dangerous substances at all identified contaminated sites gradually, over a certain timeframe (art. 11(3)). An on-site risk assessment would be necessary for sites posing a significant risk to human health or the environment, following the same timetable.

Other requirements of the original draft Soil Directive relate to the provision of detailed soil status reports in transactions involving potentially contaminated land (art. 12), the remediation of all listed contaminated sites such that they no longer pose any significant health or environmental risk (art. 13(2)), funding for orphan site remediation where the polluter-pays principle cannot be invoked (art. 13(3)), and developing a National Remediation Strategy on the basis of identified contaminated sites (art. 14).

The remainder of the draft Soil Directive is predominantly preventive. It addresses, in fairly general terms, the issues of soil sealing (art. 5), erosion, organic matter decline, compaction, salinisation and landslides (art. 8). Soil sealing practices must be limited and its effects on soil mitigated (art. 5). In relation to the other issues (‘risk areas’), Member States would be required to draw up a programme of measures, including risk reduction targets, measures for reaching those targets, a timetable for implementation, and an estimate of the relevant funding (art. 8(1)). The precautionary approach would be applied to all soil degradation issues, to the effect that any land users whose actions will significantly affect soil functions must take action to prevent or minimise those adverse effects (art. 4).

Following its initial proposal by the European Commission in September 2006, the draft Directive was adopted at the first reading stage by the European Parliament in late 2007. The relevant resolution (European Parliament 2007b) states that

an EU framework directive is fully justified in accordance with the principles of better lawmaking, given that the evaluation of existing EU legislation and of voluntary options based on the transfer of know-how still reveals gaps in soil protection. It considers that a framework directive is an adequate measure, having due regard for the subsidiarity principle and subject to proportionality[.]

However, the draft Directive requires adoption by both the Parliament and the Council of Ministers, and from its earliest stages the draft Directive has met with considerable opposition from a minority of countries in the Council of Ministers. Germany, the United Kingdom, Austria, France, the Netherlands and Malta have together blocked any further action on the draft Directive (Phillips 2010), opposing it primarily on the basis that it breaches the subsidiarity principle. The subsidiary principle, which is enshrined in the Treaty of Europe (2008, art. 5), states that any action taken by the European Union must either fall within its exclusive competence or be more effective than action taken at the national, regional or local levels. The minority countries argue that soil is a local or national issue and therefore should be dealt with exclusively at that level.

Other criticisms levelled at the draft Directive by its opponents are that its provisions are superfluous to existing national and regional measures (European Parliament 2007a); it would place a heavy cost burden on those countries which already have specific soil policies or legislation in place (Common Forum on Contaminated Land in the European Union 2007); the wording of the text is too inflexible (Council of the European Union 2007b); and it unfairly places the burden of liability on land-users rather than those responsible for soil damage. Conversely, proponents of the draft Directive—particularly environmental groups—have argued that the wording of the proposed draft should be clarified and strengthened (European Environmental Bureau 2006); and that it focuses too much on soil contamination issues to the detriment of other soil threats (e.g., Euromines 2007). Despite its perceived flaws, there were several endorsements of the original draft Soil Directive, including from industry networks, environmental groups and other commentators (e.g., European Environmental Bureau 2010; Network for Industrially Contaminated Land in Europe 2007b; Papanicolaou 2007).

Discussions of the proposal have been ongoing throughout the various European presidencies from 2007 to date, and all have been unsuccessful despite the sustained efforts of individual Presidents. A number of revised drafts of the Directive have been put forward over time. In September 2008, in response to the objections raised by the minority countries, the French Presidency of the EU issued a watered-down version of the draft Directive (Council of the European Union 2008a). This failed to gain sufficient support, and talks on the Directive stalled even after that proposal was itself revised in December 2008 (Council of the European Union 2008b; ENDS Europe 2008).

In March 2009, negotiations were revived under the Czech Presidency of the EU, which released another version of the draft Directive (ENDS Europe 2009a). The most divisive issue at that time was the procedure for dealing with contaminated sites, and in particular whether all sites should be addressed simultaneously (as proposed by the Commission) or prioritised through risk assessment (ENDS Europe 2009a). Shortly afterwards, the German Government proposed that a non-binding strategy on soil replace the draft Directive (ENDS Europe 2009b). According to observers (e.g., EurActiv 2010),

Some delegations are already suggesting that after years of deadlock over the dossier, it is time for the EU to look at ‘alternative ways’ of promoting soil protection without overtly focusing on legislation.

In April 2009, the Czech Presidency revised its draft proposal once again in response to ongoing resistance from the blocking minority (Council of the European Union 2009b). However, by June 2009 it was evident that little progress was being made on the Directive (ENDS Europe 2009c; Rankin 2009).

A revised draft Protocol put forward by Spain in 2010 proposed that Member States be required to identify places where soil is at risk and take steps to protect it; draw up plans to remediate contaminated soil; and give authorities responsibility for soil at abandoned industrial sites (Council of the European Union 2010a; European Commission 2012: 14–15; Rankin 2010a, b). This draft was again rejected by the minority countries, on the ground that the same fundamental problems with the original draft remained unchanged (Rankin 2010a; Council of the European Union 2010b). In early 2012, the European Commission identified the main issues as subsidiarity, excessive cost and administrative burden.

For its part, the European Commission has continued to apply pressure to the minority Member States blocking the draft Directive. It has held conferences and workshops, released detailed reports, and issued statements on the important role played by soil in efforts to both combat climate change and protect biodiversity (European Commission 2008a, b, 2009; Turbé et al. 2010). However, the failure of the international community to reach a binding agreement on climate change in late 2009 may have somewhat reduced the impetus of the Commission’s message. The controversial form and wording of the draft Soil Directive mean that it is unlikely to be finalised and agreed upon for several more years, if at all.

ASEAN Agreement on the Conservation of Nature and Natural Resources (1985)
The Association of South East Asian Nations’ (ASEAN) Agreement on the Conservation of Nature and Natural Resources is the only regional instrument outside of Europe that promotes measures for soil protection generally, and the improvement and rehabilitation of damaged soils in particular. Article 7 of the Agreement requires the Parties to

take measures, wherever possible towards soil conservation, improvement and rehabilitation; they shall, in particular, endeavour to take steps to prevent soil erosion and other forms of degradation, and promote measures which safeguard the processes of organic decomposition, and thereby its continuing fertility.

To this end, Parties are called upon to establish land use policies aimed at avoiding damage to the structure of the soil, and to take appropriate measures to rehabilitate degraded soils, including rehabilitation of soil affected by mineral exploitation (art. 7).

Avoiding and mitigating environmental degradation are key objectives of the Agreement. It obliges Parties, wherever possible, to prevent, reduce and control degradation of the natural environment. In particular, they are to promote pollution control and the development of environmentally sound industrial processes and products (art. 10(b)). An early version of the ‘polluter pays’ principle is incorporated into Article 10(d), which requires Parties

as far as possible to consider the originator of the activity which may lead to environmental degradation responsible for its prevention, reduction and control as well as, wherever possible, for rehabilitation and remedial measures required.

Koh (2003: 5) comments that this enunciation of the polluter pays principle significantly pre-dated the Convention on Biological Diversity (1992) and subsequent international environmental treaties, which also invoked the principle.

The Agreement states that environmental impact assessment should also be undertaken for activities that may significantly affect the environment (art. 14). The adverse effects of any such activities that do proceed should be monitored with a view to taking any appropriate remedial action.

The ASEAN Agreement has been seen as a ‘remarkable’ and ‘progressive’ instrument that reflected a ‘state of the art’ holistic approach to environmental conservation and management when it was first made (Koh 2003: 3–4). However, more than 25 years after its creation, the Agreement is yet to enter into force. This may be due in part to perceptions by some ASEAN governments that the Convention on Biological Diversity and other global environmental treaties have usurped the role of the ASEAN Agreement. According to Koh (2003: 8), this belief is misplaced, because

the ASEAN Agreement could in addition to [the] CDB and other biodiversity instruments provide a complementary overarching framework to deal with ASEAN’s bioregion at the subregional level, as well as at the national level[.]

Another possible reason for the failure of some Parties to ratify the Agreement may be the preference by ASEAN Member States for a cooperative (i.e., in this context, ‘soft law’) approach to problem-solving. Koh and Robinson (2002: 642–643) refer to this consensus-building approach as the ‘ASEAN Way’, which is based on principles of non-interference and non-intervention in state sovereignty. Other possible reasons for non-ratification may include a lack of implementation ‘readiness’, lack of scientific data, and lack of capacity (Koh 2003: 10–11). However, Koh contends that none of these reasons are sufficient in themselves to justify a failure to ratify.

As Boer (2002: 538) notes, the ASEAN Agreement “has the potential to influence environmental planning and management at a regional level, and to promote legislative reform at a national level”. It can provide both a comprehensive approach to environmental conservation in the region, and “a basis for detailed regional plans in every area of environmental management” (Boer 2002: 539). However, Boer contends that a stronger regional legal regime is needed, and that the first step towards achieving this would be the ratification of (and accession to) the Agreement by the remaining Parties and ASEAN Member States.

African Convention on the Conservation of Nature and Natural Resources (1968, Revised 2003)

The 2003 revised African Convention requires Parties to take all appropriate measures to prevent, mitigate and eliminate ‘to the maximum extent possible’ the adverse effects on the environment of radioactive, toxic and other hazardous substances and wastes (art. XIII). To this end, countries should use the ‘best practicable means’, and establish, strengthen and implement national standards (art. VI). The Parties should also use economic incentives and disincentives to mitigate environmental harm and restore environmental quality (art. XIII.2(b)). Efforts should be made to harmonise national policies with those of the other Parties (art. XIII.2(a)).

Until relatively recently, these provisions may have had little significance for contaminated sites, as other types of land degradation—such as desertification and soil erosion—have tended to be the primary focus of regional and international action in Africa. However, it is now recognised that site contamination is a growing problem in most African countries (United Nations Environment Programme 2003: 43). The causes of site contamination in this region vary widely, from chemical and industrial manufacturing activities, oil refineries, landfill sites and medical waste, to mining practices, stockpiles of obsolete toxic chemicals and electronic waste (United Nations Economic Commission for Africa 2008: 71).

3.3.1.3 Bilateral Level

There are no known bilateral agreements on soil protection at present, although there are numerous agreements on environmental protection in general, of which soil protection is one sub-issue.

Conclusions: Soil Protection Law

From a review of current international, regional and bilateral law, it is apparent that, with the exception of the Desertification Convention and the EU Soil Protocol to the Alpine Convention, international soil protection law as such is non-existent. The soil protection role of existing international and regional agreements is limited to certain types of soil damage, such as desertification (particularly in Africa) and soil erosion (e.g., as a result of forestry practices in Asia and elsewhere). Therefore both the geographical scope and the breadth of soil issues covered by these agreements are restricted. Although the EU Soil Protocol to the Alpine Convention is dedicated to the specific issue of soil conservation (art. 1), site contamination is addressed as only one minor aspect of that issue (arts. 15, 17).

Following their own detailed review of international law, Hannam and Boer (2002: 72) conclude that

The existing binding instruments are insufficient as a framework for soil as they fall well short of including anywhere near a sufficient range of legal elements that are needed to protect and manage soil in a sustainable way.

While non-binding instruments on the subject exist at the international and regional level, these have not led to more formal measures to protect soil. The degree of controversy surrounding the release of the draft EU Soil Directive in 2006 suggests that formalisation of soil initiatives is likely to be lengthy, even in a relatively proactive region. The apparent shortcomings of the draft Soil Directive may also undermine its long-term effectiveness and subsequently its credibility as a leading example of soil protection law.

Hannam and Boer (2002) consider it a ‘major concern’ that the existing international environmental law regime does not provide any guidance to States in relation to the reform or development of national soil legislation. On the basis of their research into international and regional law on soil protection, they identify the elements of a possible ‘international legal framework for soil’ (Hannam and Boer 2002: 58). Other efforts have been made to discuss the possibility of an international soils convention, although they have either concluded that a convention would not be possible, or their proposals have received a lukewarm response (e.g., Wynen 2002). Despite the slow progress being made on the issue of international soil protection, efforts to promote an appropriate international instrument are nonetheless continuing (Wyatt 2008; Boer and Hannam 2011).

3.3.2 Pollution and Pollutants

Given the similarities between the concepts of ‘contamination’ and ‘pollution’, and ‘contaminants’ and ‘pollutants’, it is important to examine the existing body of anti-pollution laws to determine whether they have any bearing on domestic site contamination measures. Site contamination is indeed one form of pollution (the term ‘point-source pollution’ can also be used to describe site contamination) and, apart from naturally-occurring contamination, the presence of pollutants determines the status of a contaminated site. The approach taken to regulating some types of pollution and pollutants can involve similarly sensitive and complex legal, political and practical issues to site contamination.

The successes and failures of a binding international agreement on a specific group of pollutants or type of pollution can be insightful for the discussion of a possible international instrument on site contamination. Some anti-pollution instruments have been in existence for several years now, allowing lessons to be drawn from their experience. A more detailed analysis of the effectiveness (or otherwise) of global anti-pollution treaties is contained in Chap. 7 below.

With the links between pollution and site contamination in mind, the following section analyses the features and relevance of several key international treaties, including those on persistent organic pollutants, prior informed consent for international trade in hazardous chemicals and pesticides, major industrial accidents, and transboundary hazardous waste movements and disposal. A brief analysis of two key international law cases on transboundary pollution then follows, as these make an important contribution to the body of international law on the subject, and could have a significant impact on the small percentage of contaminated sites involving transboundary issues. Several regional instruments on pollution and pollutants, with a particular focus on European treaties, directives and regulations, are then discussed, reflecting the segregated regulatory approach of the European Union to different elements of the environment. Finally, the scarcity of bilateral anti-pollution instruments is noted.

3.3.2.1 International Level

There are several binding agreements at the international level that regulate the use, transport and disposal of particularly toxic or hazardous pollutants. Perhaps the most successful of these agreements, in terms of its relatively short negotiation process and effectiveness in attaining its goals to date, has been the 2004 Stockholm Convention on Persistent Organic Pollutants. Its subject matter is also clearly linked to site contamination, as the toxic chemicals covered by the Stockholm Convention are commonly found at contaminated sites. This Convention is discussed first, followed by international agreements that are more preventive in nature, or are only indirectly related to site contamination in the regulation of certain processes (e.g. transboundary transport or disposal of hazardous waste).

Stockholm Convention on Persistent Organic Pollutants (2001)

The Stockholm Convention on Persistent Organic Pollutants (‘Stockholm Convention’) entered into force in 2004. The Stockholm Convention aims to permanently phase out the use of a group of toxic chemicals, because of the serious threat they present to human health and the environment. It promotes the development of alternative processes and technology and exhorts the international community to take immediate action to eliminate or reduce POPs. It endorses the precautionary principle as a central objective (art. 1).

The relevance of the Convention to site contamination lies primarily in its regulation of the disposal of certain toxic chemicals. The Convention will impact on the management of industrial sites in that countries are obliged to identify where POPs are used, stockpiled or contained in waste. The POPs need not be causing contamination at a site to require action, although by their very nature they are likely to do so. Once POP sites are identified, they must be managed or cleaned up in a safe, efficient and environmentally sound manner, so as to minimise any leaks (arts. 3, 5, 6). The toxic content of any waste materials must also be destroyed.

Rotterdam Convention on Prior Informed Consent for Hazardous Chemicals and Pesticides in International Trade (1998)

A partner to the POPs Convention, the Rotterdam Convention on Prior Informed Consent (‘Rotterdam Convention’) also entered into force in 2004. As the title indicates, it promotes shared responsibility and cooperation between countries in the international trade of certain hazardous chemicals, by introducing a system of prior informed consent (art. 1). It also aims to ‘contribute to the environmentally sound use of those hazardous chemicals’ by way of information exchange and improving domestic import and export regulations (art. 1).

Each party to the Rotterdam Convention must implement ‘appropriate’ domestic measures for the import (art. 10) and export (art. 11) of the listed hazardous chemicals. If a party to the Convention decides not to import one of the listed hazardous chemicals from another country, it must at the same time prohibit any domestic production of that chemical (art. 10(9)(b)). All parties are obliged to exchange scientific, technical, economic and legal information on the listed chemicals and the domestic regulatory measures used to address them (art. 14). Apart from legislative or administrative measures, implementation should include the establishment of national registers and databases on listed chemicals; industry initiatives to promote chemical safety; and the promotion of voluntary agreements (art. 15).

The Rotterdam Convention only affects site contamination in that details of the nature and use of listed chemicals at certain sites may have to be kept on a national database. This may facilitate the earlier identification of potentially contaminated sites in countries which are parties to the Convention, and may result in a more informed management procedure for such sites.

Prevention of Major Industrial Accidents Convention (1993)

The Prevention of Major Industrial Accidents Convention (‘PMIA Convention’), convened under the auspices of the International Labour Organization, entered into force in 1997. It has the primary purpose of preventing major accidents involving hazardous substances and limiting the consequences of such accidents (art. 1). While site contamination can clearly occur as a result of a major industrial accident, such accidents are relatively rare and would need to be particularly serious for the provisions of the Convention to apply.

The PMIA Convention covers sudden occurrences, including ‘a major emission […] involving one or more hazardous substances and leading to a serious danger to workers, the public or the environment, whether immediate or delayed’ (art. 3(d)). According to Article 3(c), a ‘major emission’ must occur at a ‘major hazard installation’, i.e. one which

produces, processes, handles, uses, disposes of or stores, either permanently or temporarily, one or more hazardous substances or categories of substances in quantities which exceed the threshold quantity.

A hazardous substance is ‘a substance or mixture of substances which by virtue of chemical, physical or toxicological properties, either singly or in combination, constitutes a hazard’ (art. 3(a)).

Parties to the Convention must develop, implement and review a ‘coherent national policy’ for the protection of workers, the public and the environment against the risk of major accidents (art. 4(1)). Preventive and protective measures are to be used for the management of major hazard installations and to promote the best available safety technology (art. 4(2)). In addition, countries must establish a system for identifying all of their major hazard installations, with employers carrying the obligation of such identification (art. 7). The Convention enables the competent national authority to inspect major hazard installations (art. 18) and to ‘suspend any operation which poses an imminent threat of a major accident’ (art. 19).

The PMIA Convention is largely preventive in purpose. Its limited relevance to site contamination lies in the identification and inspection of all facilities which may be ‘major hazard installations’. If an incident of serious contamination at such an installation is imminent, the national authority could intervene to prevent it or mitigate its effects. However, most site contamination does not occur suddenly, but rather takes place over a lengthy period, perhaps remaining undetected until its effects become obvious.

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989)

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (‘Basel Convention’) entered into force in 1992 with the aim of minimising the generation and movement of hazardous wastes. It promotes ‘environmentally sound management’ (ESM), which means ‘taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes’ (art. 2(8)). It uses mostly preventive language throughout its text.

While the Basel Convention largely targets the movement of hazardous wastes between countries, it also has some relevance for the domestic management of waste. Each Party to the Basel Convention must take ‘appropriate measures’ to ensure that their domestic generation of hazardous and other wastes is reduced to a minimum (art. 4(2)(a)). They must also ensure the availability of ‘adequate disposal facilities’ as near as possible to the source of the wastes.

Under the Basel Convention, persons involved in the management of hazardous wastes must take the necessary steps ‘to prevent pollution […] arising from such management and, if such pollution occurs, to minimise the consequences thereof for human health and the environment’ (art. 4(2)(c)). This is perhaps more significant for the management of contaminated sites than other provisions in the Convention. It is conceivable that site contamination may arise from hazardous waste operations, such as waste disposal facilities, or chemical manufacturing plants which generate hazardous wastes. Where this occurs, operators have a positive duty to contain the contamination and minimise its detrimental effects.

Basel Protocol on Liability and Compensation (In Relation to Transboundary Wastes)

The Protocol to the Basel Convention was developed to provide a comprehensive regime for liability and adequate, prompt compensation for damage resulting from the transboundary movement of hazardous wastes, including illegal dumping and accidental spills. The scope of the Protocol and its definitions are similar to the provisions of the Basel Convention. However, Article 4 deals with the strict liability of the various persons involved in the movement and disposal of hazardous wastes. Article 5 provides for fault-based liability, Article 9 for contributory fault, and preventive measures are required to be taken under Article 6.

The Protocol is not yet in force, and even if it does become binding on the Parties, its significance for site contamination will be substantially limited to the discrete issue of hazardous wastes (only where, or indeed if, unexcavated site contamination can be defined as hazardous waste), and the domestic aspects of their movement and disposal.

International Jurisprudence

Finally, there are two international decisions that have some potential relevance to the subject of site contamination—one a classic and frequently cited case, the other arising from a recent transboundary dispute in South America.

Trail Smelter Arbitration (United States v Canada)

In this case, a lead and zinc smelter situated at Trail, in British Columbia, Canada, released sulphur dioxide fumes which were carried by air across the border to the United States, where it caused pollution. The output of the Canadian smelter, and the subsequent environmental damage to the United States, increased from 1925. Eventually, an Arbitral Tribunal was convened to settle several matters, including whether further cross-border pollution had occurred since 1932 (when some monetary compensation had been paid to the United States for damage caused), what the appropriate damages should be, whether the smelter operations should cease, and what measures should be taken to this end.

The Tribunal looked to international law and United States legal precedents to find against Canada, concluding (at 1965) that

[…] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

On this basis, the Tribunal found that Canada was responsible in international law for the operations of the Trail Smelter, and must refrain from causing further damage to the United States (Read 2006: 25).

The Trail Smelter decision has long been regarded as embodying the fundamental principle of state responsibility, and is often cited in relation to pollution cases (Read 2006; Ellis 2006a: 56). However, this status has been questioned in recent years. In particular, commentators argue that the scope of the decision is confined to situations where serious harm is caused by fumes and evidence of such harm is clear and convincing. These conditions may be difficult to satisfy in all but the most extreme cases of cross-border environmental harm, and perhaps only harm caused by air pollution. As Ellis (2006a: 61) notes, Trail Smelter may offer little assistance for the consequences of gradual emissions of pollutants over time, even though these may be ‘potentially devastating’.

Therefore, while the decision offers some guidance on the resolution of disputes over cross-border pollution, it may be more influential for instances of severe airborne pollution damage than for cases of transboundary soil or water contamination. It is likely to affect the management of site contamination only where the contaminant is sufficiently mobile to cross an international border, the contamination causes serious harm, and that harm can be clearly proven. In such cases, the national government in whose territory the contamination originates has an obligation to ensure that the contaminating activity either ceases or subsequent cross-border environmental harm is prevented.

The Trail Smelter site has re-emerged in recent court action in the United States, in which US citizens asked the District Court to enforce a site investigation order made by the US Environmental Protection Agency against the Canadian company operating the smelter (Pakootas v Teck Cominco2006). The order had been made under US federal legislation (Comprehensive Environmental Response, Compensation and Liability Act 1980) in relation to contaminants allegedly emanating from the smelter into the Columbia River, and being carried downstream across the Canadian/US border into Lake Roosevelt, Washington State. Teck Cominco, the Canadian company, was held responsible by the US Federal Court for the Lake Roosevelt contamination and effectively made subject to the extraterritorial application of the federal legislation. The Court did not rely on principles of international law in reaching its decision, but rather looked to domestic US law and the intention of Congress.

Pulp Mills on the River Uruguay (Argentina v Uruguay), International Court of Justice (2007)

In 2006, Argentina began proceedings against Uruguay in the International Court of Justice for an alleged breach of the 1975 Statute of the River Uruguay by authorising and commissioning two pulp mills on the River Uruguay without first notifying or consulting with Argentina. Argentina was concerned at the effects of the pulp mills on the quality of the river and surrounding areas, and alleged that Uruguay’s actions could cause environmental harm within Argentina.

The ICJ was requested by each country to make ‘provisional measures’ according to their own respective desired outcomes. Argentina wished to have the pulp mill construction halted and Uruguay wanted to prevent Argentine civilians from blockading the Argentine/Uruguayan border. In its decision of 23 January 2007, the ICJ declined to make any provisional measures and instead called upon the two countries to comply with their obligations to consult with one another under the Statute of the River Uruguay.

In its judgment of 21 April 2010, the ICJ rejected Argentina’s claim that Uruguay had breached the substantive provisions of the 1975 Statute. Regarding this matter, the Court held (para 265):

there is no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or caused harm to living resources or to the quality of the water or the ecological balance of the river since it started its operations in November 2007.

Although the ICJ held that Uruguay had committed procedural breaches, those breaches were not considered sufficient to justify closing down the pulp mill or requiring compensation to be paid to Argentina (ICJ 2010: paras 269, 276). The pulp mill was therefore allowed to continue operating (ICJ 2010: paras 279–280).

The limited significance of the Argentina v Uruguay proceedings is that, where States are parties to a treaty concerning shared natural resources and that treaty contains provisions for minimisation of environmental harm and prior notification and consultation, the parties must fulfil their obligations. Therefore, where one State is contemplating an act which may cause cross-border contamination in an adjacent State, it must observe its particular treaty obligations to that State in addition to general principles of international law on state responsibility. However, as the judgment in Argentina v Uruguay shows, there will not always be penalties for parties who commit a breach of the relevant agreement, particularly if the breach is procedural rather than substantive. Court remedies may come too late to prevent or mitigate the harm already caused, and the existing law may not provide adequate compensation or practical remedies to affected parties.

3.3.2.2 Regional Level

There are several agreements on pollution at the regional level, mainly in Europe. These include two initiatives of the United Nations Economic Commission for Europe, the Protocol on a Pollutant Release and Transfer Register and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes. The European Union also has a treaty and several directives and regulations relating to pollution and pollutants, particularly waste. An important decision of the European Court of Justice on the definition of ‘waste’ has led to changes in relevant EU regulations, and this is discussed below. Lastly, the Bamako Agreement regulates the transportation and disposal of hazardous waste in the African region.

UNECE Protocol (to the Aarhus Convention) on Pollutant Release and Transfer Registers (2003)

This Protocol was developed by the United Nations Economic Commission for Europe (UNECE) under the auspices of the Aarhus Convention. It aims to improve public access to information on pollutants by establishing a nationwide, integrated register in each member country. It is envisaged that such a register would both enhance the environmental decision-making process and help prevent and reduce environmental pollution (art. 1). The Protocol entered into force in 2009.

The Protocol defines ‘pollutant’ as a substance (or group of substances) that may be harmful to the environment or human health on account of its properties and of its introduction into the environment (art. 2(6)). A ‘release’ is broadly defined in Article 2(7), as

any introduction of pollutants into the environment as a result of any human activity, whether deliberate or accidental, routine or non-routine, including spilling, emitting, discharging, injecting, disposing or dumping, or through sewer systems without final waste-water treatment.

The core elements of a publicly-accessible, nationwide pollutant release and transfer register system are set out in Article 4. This is a register of pollutant releases, not contaminated sites as such. The register must be computerised and searchable by specific categories, such as particular facilities (art. 2(4)), owners or operators of facilities, types of pollutants or activities, releases to land, water and air, and transfer destinations. The information is derived from annual, mandatory reporting by facility operators or owners (arts. 4(f), 7 and 8). Only those whose facility is involved in an activity listed in Annex I to the Protocol are required to submit reports (art. 7).

The Protocol may affect operators and owners of potential and actual contaminated sites by requiring regular reporting on any releases and transfers of pollutants that take place (art. 9). The release of a harmful pollutant into the environment as a result of human activity would normally be understood to equate to ‘contamination’, although the Protocol does not explicitly acknowledge this term. The wide definitions of ‘pollutant’ and ‘release’ would encompass many types of contaminants and contaminating activities. Public access to the pollutants register may result in increased public involvement in the decision-making process, for example the granting of a permit for emissions on a site, a transfer of contaminated soil for off-site treatment or disposal, or approval for remediation works which may involve the release of a contaminant.

UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992)

The Helsinki Convention was intended to strengthen national measures for the protection and ecologically sound management of transboundary surface waters and groundwater. It obliges Parties to prevent, control and reduce water pollution from point and non-point sources (arts. 3 and 9). It also includes provisions for monitoring, research and development, consultations, mutual assistance, institutional arrangements, the exchange of information, and public access to information (arts. 4–6, 9–13, 15–16). There are two protocols to the Convention, the 1999 London Protocol on Water and Health and the 2003 Kiev Protocol on Civil Liability.

Article 2(2) of the Convention states that the Parties ‘shall, in particular, take all appropriate measures to prevent, control and reduce pollution of waters causing or likely to cause transboundary impact’. Article 2(5) lists the polluter pays principle and the precautionary principle as among the guiding principles for measures taken by the Parties. Domestic measures must ensure that the emission of pollutants is dealt with at source by appropriate regulation and licensing of discharges (art. 3(1)). The provisions of the Convention are most likely to have a generalised, preventive effect on site contamination within domestic borders, by exerting pressure on Parties to take action against water pollution.

Convention on the Protection of the Rhine (1999)

The Bern Convention covers the Rhine River and connected groundwater, aquatic and terrestrial ecosystems, including the Rhine catchment areas. A major aim of the Convention is to maintain and improve the quality of the Rhine’s waters, by preventing, reducing and eliminating its pollution by noxious substances and point-source nutrients (art. 3(1)(a)). It specifically mentions the precautionary principle, polluter pays principle, and principles of preventive action and rectification at source, as among its guiding principles (art. 4).

Parties to the Convention (Germany, France, Luxembourg, Switzerland, Netherlands and the EU) undertake to analyse the causes of Rhine-related pollution in their territory and identify the parties responsible for such pollution (art. 5(3)). Discharges of waste water must be restricted and authorised, discharges of hazardous substances reduced and eventually eliminated, regulatory compliance monitored, and the risk of pollution from incidents reduced as far as possible by regulatory measures (art. 5(4)). The only contaminated sites to be regulated by this Convention would be those discharging into or otherwise affecting the waters or catchment areas of the Rhine.

Integrated Pollution Prevention and Control (IPPC) Directive (2008/1/EC) (European Union)

The IPPC Directive was first adopted in 1996 and revised in 2008, and contains a set of rules for permitting and controlling emissions from industrial plants. Permits must consider the whole environmental performance of a plant, including, among other factors, emissions to land and water and site remediation after closure (arts. 7 and 9). Contamination occurring at some industrial sites may therefore be regulated by such permits, which may state specific measures to be taken to mitigate the contamination, remediate the site and undertake further monitoring post-closure.

The European Commission updated the IPPC Directive in 2008 as a result of a detailed review of all of the relevant legislation. The revised Directive contains strengthened provisions on soil protection and contamination prevention. Measures include harmonising the obligation to avoid pollution risks, and obliging site operators to return IPPC sites to a ‘satisfactory state’ (art. 3).

Water Framework Directive (2000/60/EC) (European Union)

The Water Framework Directive (‘WFD’) was adopted in 2000 to protect rivers, lakes, coastal waters and groundwater in Europe from pollution. It sets a target for all waters to attain a ‘good quality’ status by 2015 (art. 4(1)(b)(ii)). Specifically, it requires Member States to take largely preventive steps regarding the discharge of pollutants into groundwater (art. 4(1)(b)). However, they must also actively restore all bodies of groundwater and reverse any identified trends of pollution. This seems to require Member States to proactively identify areas of polluted groundwater and take remedial measures. Where a contaminated site may pollute groundwater, onsite remediation may be necessary to curb the pollution.

A ‘pollutant’ is defined as ‘any substance liable to cause pollution, in particular those listed in Annex VIII’ (art. 2(31)). The WFD also distinguishes between ‘priority substances’ and ‘hazardous substances’, each of which require their own particular measures (arts. 2(30) and 2(29)). ‘Pollution’ is defined in Article 2(33) as

the direct or indirect introduction, as a result of human activity, of substances or heat into the air, water or land which may be harmful to human health or the quality of aquatic ecosystems, which result in damage to material property, or which impair or interfere with amenities and other legitimate uses of the environment.

Groundwater Directive (2006/118/EC) (European Union)

The Groundwater Directive, adopted in 2006, requires Member States to take measures to prevent or limit discharges (‘inputs’) of pollutants into water (art. 6). It defines inputs as ‘the direct or indirect introduction of pollutants into groundwater as a result of human activity’ (art. 2(4)). Guidelines for establishing threshold values for groundwater pollutants and indicators of pollution are contained in Annex II to the Directive.

Landfill Directive (1999/31/EC) (European Union)

The Landfill Directive aims to prevent or minimise the negative impacts of landfill on the environment, by introducing strict technical requirements for waste and landfill facilities (art. 1). It covers landfills for hazardous wastes, non-hazardous wastes, and inert wastes, and includes onsite waste disposals (arts. 2 and 4). Landfill site operators must prepare and submit a site closure and aftercare plan to address any contamination left in situ (art. 13).

Restrictions introduced under the Directive mean that, in general, any soils removed from contaminated sites that are deemed ‘hazardous waste’ must be disposed of at a dedicated hazardous waste landfill. Due to the high costs of operating such landfills (and subsequently, high disposal fees), the traditional ‘dig and dump’ approach to contaminated soil is increasingly being replaced with alternative remedial methods, such as in situ soil treatment or containment measures (Gronow 2005: 3). The Directive represents a potentially major shift in the approach to site remediation across European Union Member States.

Waste Directive (2008/98/EC) (European Union)

The 2008 Waste Framework Directive defines ‘waste’ as ‘any substance or object which the holder discards or intends or is required to discard’ (art. 1(a)). It requires Member States to ensure that waste is recovered and disposed of without endangering human health, and without using processes or methods which could harm the environment, particularly elements such as soil and water (art. 13). Particular types of waste disposal operations must carry a permit (art. 23). Facilities carrying out their own onsite non-hazardous waste disposal or waste recovery processes may be exempted from the permit requirement (art. 24). ‘Hazardous waste’ is defined as waste which displays one or more of the hazardous properties listed in Annex III of the Directive (art. 3). Annex I lists several categories of substances which are ‘contaminated’, including ‘contaminated materials, substances or products resulting from remedial action with respect to land’.

Traditionally, domestic waste management legislation was seen to encourage a ‘dig and dump’ approach to contaminated site remediation (Waite 2005: 38). In the United Kingdom, for example, waste management controls were criticised for leading to unjustified management costs for contaminated sites, discouraging redevelopment of brownfield land, and failing to provide incentives for the use of alternative remedial technologies (Waite 2005: 38).

In the 2004 decision of Van de Walle, the European Court of Justice gave a liberal interpretation of ‘waste’ as defined under the original 1991 version of the Waste Directive. The case involved the contamination of soil and groundwater as a result of an accidental leak of hydrocarbons from a petrol station in Belgium. The Court ruled (at para 62) that both the contaminant and the resulting contaminated soil, even where that soil had not been removed, were ‘waste’. The Court also took a broader approach to the allocation of responsibility for the disposal and recovery of waste, particularly the definition of a ‘holder’ of waste (McIntyre 2005: 118).

The ECJ decision generated substantial debate and confusion over whether all contaminated soil could be considered ‘waste’ (McIntyre 2005: 118). According to one commentator at the time, Van de Walle brought contaminated soil within the scope of domestic and European waste law and had a potentially ‘profound impact on the application of rules imposing liability for the remediation of contaminated sites’ (McIntyre 2005: 118). The decision was considered to undermine fundamental established principles of ‘suitability for use’ and ‘risk-based land management’ by preventing usable materials from being reused (Network for Industrially Contaminated Land in Europe 2007a: 1). However, Waite (2007: 347) contends that the Van de Walle decision has been wrongly interpreted, and that its application is much narrower than is commonly understood.

Van de Walle prompted a review of the 1991 Waste Directive, along with several other pieces of European legislation relating to waste (Council of the European Union 2007a). As a result, and in an effort to clarify the legal definition of ‘waste’, the 2008 Waste Framework Directive now expressly excludes from the definition any ‘land (in situ) including unexcavated contaminated soil and buildings permanently connected with land’ (art. 2(1)(b)). Also excluded from the definition of ‘waste’ (art. 2(1)(c)) are

uncontaminated soil and other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated[.]

Therefore, contaminated soils that are remediated in situ are not covered by the Directive, and nor are excavated clean soil or other natural materials where they will be reused on site. However, contaminated soil that is excavated and remains onsite, or that is removed for offsite treatment and/or disposal, is still subject to the requirements of the Directive.

Regulation (EC) No 850/2004 on Persistent Organic Pollutants (POPs Regulation) (European Union)

The POPs Regulation was amended in 2006 to more fully incorporate Europe’s obligations under the Stockholm Convention on Persistent Organic Pollutants. Its objective is to protect human health and the environment by prohibiting, phasing out, or restricting the production, trade and use of POPs (art. 1). Measures and timelines are set out for the reduction, minimisation and elimination of POPs releases (art. 6). Waste producers must ensure that waste is not contaminated with POPs or, where such contamination occurs, that the POPs element is permanently destroyed as soon as possible (art. 7).

Regulation (EC) No 166/2006 on the Establishment of a European Pollutant Release and Transfer Register (European Union)

The European Union adopted the EPRTR Regulation in 2006, in response to the 2003 United Nations Economic Commission for Europe (UNECE) Protocol on a Pollutant Release and Transfer Register, to which it is a signatory. The Regulation creates a publicly accessible database to assist in the prevention and reduction of environmental pollution (art. 1). Similarly to the Protocol, the Regulation defines ‘pollutant’ and ‘release’ broadly (arts. 2(9) and 2(10)).

The Register will include information on pollutant releases and off-site transfers of waste, both of which are to be reported by operators (arts. 3(a) and 3(b)). Reports need only be made annually and if threshold values are exceeded (art. 5). The Regulation envisages the development of guidelines for the monitoring and reporting of pollutants, in accordance with ‘internationally approved methodologies, where appropriate’ (art. 9(4)).

Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa (1991)

Created by African countries with a similar purpose to the 1989 Basel Convention, but with stricter controls on hazardous wastes, the Bamako Convention entered into force in 1998. The Bamako Convention defines ‘management’ as the prevention and reduction, as well as the collection, transport, storage and treatment, of hazardous wastes (art. 1(3)). Parties have a broad obligation to adopt a preventive, precautionary approach to pollution issues, by preventing the release into the environment of substances which may cause environmental or human harm (arts. 3(f) and 3(g)).

3.3.2.3 Bilateral Level

There are only two agreements at the bilateral level on the specific issue of pollution, both of which do specifically refer to site contamination, but to a very limited number of contaminated sites.

United States-Germany Bilateral Agreement on Remediation of Hazardous Waste Sites (1990)

The United States Environmental Protection Agency (USEPA) and the German Federal Ministry of Education and Research entered into a Bilateral Agreement on Contaminated Waste in 1990. The objective of the Agreement is to improve each country’s approach to the remediation of hazardous waste sites, through an evaluation of current practices and exchange of technologies (United States-Germany Bilateral Working Group 2000, 2001: 2).

The Bilateral Working Group, established to implement the Agreement, is currently in its fifth phase of operations (United States-Germany Bilateral Working Group 2012). Over the past decade the Bilateral Working Group has held several conferences and has developed publicly accessible tools to assist with redevelopment of contaminated land. The German partner organisation has since been changed to the German Federal Environment Agency (Umweltbundesamt).

Exchange of Notes Between Canada and United States on Environmental Issues (1996)

This agreement deals specifically with a ‘lump sum’ payment by the United States to Canada to meet the cost of remediating several former-US military sites in Canada. It has no relevance to contaminated sites beyond those military sites specified.

3.3.2.4 Conclusions: Pollution and Pollutants

There are several international and regional instruments on pollution and pollutants, focussing primarily on specific types of chemicals, hazardous substances and wastes, and pollution processes. None refer to site contamination, except in the broad sense of preventing or managing pollution, or in the very narrow sense of imposing cleanup obligations for particular substances (such as POPs) or sites (e.g. the US-Germany Bilateral Agreement). Nor can the existing international jurisprudence on state responsibility, provided by the Trail Smelter case, necessarily be applied generally to all environmental damage caused by one State to another. Moreover, the proportion of site contamination having a transboundary impact is small compared to the number of sites with domestic impacts only.

3.3.3 General Environmental Protection

This category encompasses instruments that have broad environmental objectives. There are many binding and non-binding instruments with the general purpose of environmental protection, at the international, regional and even bilateral levels. While most of these are only indirectly relevant to site contamination, they nonetheless play an important role in enhancing public awareness of environmental issues, which in turn may eventually lead to a greater knowledge of the environmental impacts of site contamination, among other factors. The national legislation, policies and plans of action that individual countries implement to comply with these instruments may be the foundation for more specific action on pressing domestic environmental issues. In some countries, site contamination is already considered a high priority for action. In others, that recognition is yet to emerge but may result from concerted efforts to collate relevant information at the domestic level.

3.3.3.1 International Level

At the forefront of binding international agreements on environmental protection is the Convention on Biological Diversity, although its ramifications for the domestic regulation of site contamination are indirect and minimal at best. However, its implementation has raised awareness of environmental issues more generally, as have several non-binding initiatives at the international level. These include declarations, action plans, programmes, draft covenants and standards created by the United Nations and other international organisations, all of which are referred to below because they have potential relevance (albeit indirect) to site contamination. Another important consideration at the international level is the precautionary principle, although its role is largely preventive in terms of site contamination.

Convention on Biological Diversity (1992)

The Convention on Biological Diversity (CBD) entered into force in 1995 and contains broad obligations for States to protect biodiversity and remedy damage caused to it (arts. 8(f), 10(a) and 10(d)). These obligations are underpinned by the central aim of the CBD, which is to promote ‘sustainable development’ (arts. 1 and 3). As with all other existing international treaties, site contamination is not mentioned in the text of the Convention. However, principles contained in the CBD may be broadly applicable to the management of site contamination, encompassing preventive, mitigating and remediation measures insofar as they affect the conservation of biological diversity.

For example, Article 7(3) of the Convention states that:

Parties shall […] identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques.

It is conceivable that parties to the Convention would identify activities that cause site contamination as activities that are likely to have significant adverse impacts on biological diversity, and that they would be obliged to take appropriate actions to minimise and monitor those impacts. However, Article 7(3) appears to refer only to current activities, rather than past activities, so this would not cover historic contamination.

Some countries have already identified ways of measuring the impacts of contaminants on biological diversity. For example, Australia has developed ‘Ecological Investigation Levels’ (EILs), which measure the concentration of a contaminant, above which further appropriate investigation and evaluation of ecological impacts will be required (National Environment Protection Council (Australia) 1999: sched. B5). The EILs have been prepared ‘specifically for the protection of terrestrial biota from the adverse effects of chemical contaminants in soil’. The ecological values to be protected vary, depending on several factors, and both existing and proposed site uses are taken into account when applying EILs.

The Conferences of the Parties to the CBD, together with the Subsidiary Body on Scientific, Technical and Technological Advice, have in recent years focused on reducing soil degradation, although mainly in the context of agricultural practices (Secretariat for the Convention on Biological Diversity 2008; United Nations Environment Programme 2002). There have been no initiatives on, or references to, site contamination by the Parties to the CBD at the international level, except in relation to the use of pesticides by farmers. Despite this, it is encouraging that some countries are integrating CBD principles into domestic decision-making processes on site contamination.

The Precautionary Principle
Principle 15 of the 1992 Rio Declaration on Environment and Development is often cited (see, e.g., Dickson and Cooney 2005: 5) as the classic articulation of the precautionary principle:

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The precautionary principle has been applied and interpreted in many different ways in both international and national law and policy (Dickson and Cooney 2005: 5). It is also often referred to as a ‘precautionary approach’, and whether there is any real distinction between the two terms is debated (see, e.g., de Sadeleer 2007: 3). Regardless of the specific term used, the notion of precaution is broadly identifiable (de Sadeleer 2007: 4–5) as

the premise that complete certainty regarding an environmental harm should not be a prerequisite for taking action to avert it….[It] supports action to anticipate and avert environmental harm in advance of, or without, a clear demonstration that such action is necessary.

The principle requires only that there be a threat of ‘serious and irreversible’ environmental damage, not actual damage, but there should be some persuasive scientific evidence to support the threat (Preston 2008: 168). If such a threat can be shown, the proponent of the environmental harm then has the burden of proving that the threat either does not exist or is negligible (Preston 2008: 168).

It is unlikely that the precautionary principle has yet attained the status of a norm of customary international law (Ellis 2006b: 445). Observers remain divided on this issue and some indicate that the absence of the application of the precautionary principle in decisions by international tribunals is one reason for its lack of legal status (Ellis 2006b: 448). Where the precautionary principle is incorporated into international soft law instruments, countries are encouraged, but not legally bound, to adopt the principle in their law- and policy-making. For its part, the Rio Declaration calls on States to apply the precautionary approach widely and in accordance with their capabilities (principle 15).

In relation to site contamination, a broad application of the precautionary approach could include the introduction of legal measures to require investigations into suspected contaminated sites and action even where contamination, or risks to the public or environment, are not yet confirmed. Justice Preston (2008: 169) states that

In the context of contaminated land, the precautionary principle can operate in at least two ways: first, to prevent contamination of land in the first place and second, to remediate and manage contaminated land.

In relation to the remediation and management of contaminated land, the precautionary principle can require a site operator to take appropriate remedial measures to manage a contaminated site. This is evidenced by the European Directive on Environmental Liability, in which Articles 6 and 7 set out requirements for operators to take such action without delay.

The recent emergence of site-based risk assessment of contaminated land, and the in situ retention of contaminants, may present a challenge to efforts to comply with the precautionary principle. The fact that many sites will not be completely ‘cleaned up’ leaves open the possibility that ‘serious or irreversible damage’ may occur at some point in the future, and that further remediation could be required. While the precautionary principle obliges countries to avoid such damage wherever possible, it could be argued that emerging trends in site remediation represent a compromise in the operation of the principle. On the other hand, the reference within the precautionary principle to ‘cost-effective’ measures may serve to justify the adoption of the risk assessment approach to site contamination, rather than the expensive multifunctionality approach used in the 1980s (see Sect. 2.6.1 above).

Stockholm Declaration on the Human Environment (1972)

The Stockholm Declaration is broadly relevant to site contamination in that it emphasises the need for careful management of natural resources, including land and water, for present and future generations (principles 2 and 7). It also specifically links pollution to ecosystem damage, calling for a halt to ‘the discharge of toxic substances or of other substances […], in such quantities or concentrations as to exceed the capacity of the environment to render them harmless’ (principle 6). However, there is no reference to the other impacts of pollution and the Stockholm Declaration provides no detailed guidelines for the ‘careful management’ of land or water.

Rio Declaration on Environment and Development (1992)

The Rio Declaration, adopted 20 years after the Stockholm Declaration, is more clearly focused than its predecessor. It recognises the need for ‘effective environmental legislation’ (principle 11). It specifically asks States to develop national laws on liability and compensation for pollution victims (principle 13), and refers to the ‘polluter pays’ principle (principle 16). The Declaration also espouses the ‘precautionary principle’ (principle 15) and calls for national environmental impact assessment procedures for proposed activities ‘that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority’ (principle 17).

Agenda 21: The United Nations Programme of Action from Rio (1992)
Agenda 21 is described by the United Nations (Department of Economic and Social Affairs 2012) as

a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts [sic] on the environment.

Chapter 10 of Agenda 21 refers to the need for an integrated and sustainable approach to the use of land resources, through the development of planning and management tools. Chapter 19 recognises that

Gross chemical contamination, with grave damage to human health […] and the environment, has in recent times been continuing within some of the world's most important industrial areas. Restoration will require major investment and development of new techniques.

Specific recommendations are made for the environmentally sound management of chemicals at the national, regional and global level (para 19.4). At the national level, these include establishing risk reduction programmes and strengthening national capacities for chemicals management. Governments are requested to identify, assess, reduce and minimise, or eliminate as far as feasible by environmentally sound disposal practices, risks from storage of outdated chemicals (para 19.49(i)).

Agenda 21 identifies the capacity for rehabilitation of contaminated sites as one of the basic elements for sound management of chemicals (para 19.56). However, apart from these two brief references in Chapter 19, site contamination receives no further mention in the text of Agenda 21. As the most comprehensive set of recommendations made so far at the international level on human-induced environmental impacts, this absence is significant. It suggests that, at the time, the international community did not perceive site contamination to be an appropriate issue for inclusion in Agenda 21.

IUCN Draft International Covenant on Environment and Development (2010)
Apart from espousing precaution and prevention of environmental harm, the Draft Covenant (art. 18) calls on countries to:

Take all appropriate measures to ensure the conservation and where necessary the regeneration of soils for living systems by taking effective measures to […] safeguard the processes of organic deposition and to promote the continuing fertility of soils.

Water quality should also be maintained and restored where appropriate (art. 19). Any particular substances, technologies, processes and types of activities having actual or likely significant adverse effects on the environment or public health should also be identified and evaluated by governments, with subsequent action being taken to regulate or manage them to prevent harm (art. 23). Environmental impact assessment procedures are to be followed for activities which pose a significant risk (art. 38).

With regard to pollution, countries should take steps to ‘prevent, reduce, control and eliminate, to the fullest extent possible, detrimental changes in the environment from all forms of pollution’ (art. 24). In doing so, they should employ the ‘best practicable means at their disposal’ and endeavour to harmonise their policies. However, they should avoid any attempt to transfer harm or hazards from one area to another, or one type of environmental harm to another (art. 14).

Although there is no specific reference to site contamination within the Draft Covenant, the explanatory materials accompanying the text refer to the need to devise effective remedies for environmental harm. It states (at 145), in relation to Article 52 on the Consequences of Failure to Prevent Harm, that

A particular focus should be on restoring the environment, particularly protected areas or fragile ecosystems […] after environmental harm has occurred. Remediation may include ‘any reasonable measures aiming to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of these components into the environment.

The relevance of Article 52 for site contamination is limited, however, as it focuses primarily on sites or areas which have particularly sensitive ecosystems or high conservation value.

UNEP Montevideo Programme III (2001–2010) and IV (2011–2020)

The Programme for the Development and Periodic Review of Environmental Law for the First Decade of the Twenty-First Century (Montevideo Programme III) presented a 10-year strategy for the involvement of UNEP in environmental law developments worldwide. Improvement in the conservation, rehabilitation and sustainable use of soils was an objective identified in the Programme (area 12). To this end, domestic land use laws were to be reviewed and soil conservation measures were to be incorporated into all relevant domestic laws. Similar measures were required in relation to water conservation (area 10). No specific reference to site contamination was made.

The Third Programme also sought to prevent, reduce and control environmental pollution by strengthening and expanding existing laws and policies and developing new ones (area 15). It identified developing countries and those with economies in transition as being particularly in need of assistance, and outlined the types of assistance required. According to the United Nations Environment Programme (2009c: 3), ‘developing countries are, to a large extent, lacking comprehensive national legislation and therefore do not have applicable legislation in environmental damages cases.’

Partly in response to this need, and in the specific context of environmental liability, UNEP is now finalising ‘draft guidelines for the development of national legislation on liability, response action and compensation for damage caused by activities dangerous to the environment’ as part of the Fourth Montevideo Programme (2010–2020). The new Programme was adopted at the 25th Session of the UNEP Governing Council/Global Ministerial Environment Forum in early 2009 (United Nations Environment Programme 2009c).

Montevideo Programme IV consists of 27 programme areas, of which the management and sustainable use of soils is one, and the prevention, mitigation and compensation of environmental damage is another (United Nations Environment Programme 2009c: paras 8(b)(iii) and 8(a)(iii)). In relation to soil, the Programme (Annex, 11) aims to promote

the development, dissemination and implementation of laws and policies that aim to enhance the conservation, sustainable use, control and reduction of soil degradation and, where appropriate, restoration of soils[.]

In particular, efforts to review and implement domestic land-use laws are to be encouraged, existing domestic legal measures are to be strengthened to address the restoration of soils on an ‘as needed’ basis, and educational programs are to be provided to improve understanding of the legal aspects of sustainable soil use. In relation to environmental damage, the role of the polluter pays principle and the effectiveness of civil liability regimes are to be closely studied under the Programme. It also recognises the need to analyse the ‘adequacy and effectiveness of ways and means of providing compensation, remediation, replacement and restoration for environmental damage’ (United Nations Environment Programme 2009c: 4).

ISO 14000 Standards

The International Organization for Standardization (ISO) develops internationally applicable, but non-binding, standards which specify the requirements for products, services, processes, materials, systems and organisational management. These standards are essentially for preventive rather than remedial purposes. There are two broad categories of ISO standards which are relevant to site contamination: the ISO 14000 set of standards, and the numerous, very specific standards which apply to soil and water quality. The latter have been devised to achieve standardisation in particular aspects of soil quality, and deal with topics such as soil assessment, soils in situ and soil materials intended for reuse. Many of these standards are still under development by the relevant ISO technical committees.

ISO 14000 is an international standard for the development and implementation of an environmental management system (EMS) to deal with the environmental impacts of running an organisation. To achieve the standard, companies must adopt particular practices as prescribed in ISO 14001:2004, at which point they become certified and may adopt additional ISO 14000 standards. These include ISO 14004 (EMS development), 14011 (EMS monitoring), 14040 (environmental performance product lifecycle monitoring), 14030 (environmental performance target monitoring) and 14063 (environmental performance public communication). EMS is applied to many environmental aspects of business activities that are potentially relevant to site contamination, including hazardous materials management and emissions reductions.

There are several aspects of ISO 14001 which could be applicable to site contamination (see, e.g., Environment Agency (UK) 2005: 18). To obtain certification, companies must examine past, current and future activities and identify any possible environmental impacts. Any relevant environmental law requirements or industry standards must be complied with. Companies must take responsibility for activities of other entities over which they have influence, not only activities over which they have direct control. There are also many ISO standards (some of which are still under development) relating to sampling, testing and analytical methods for the monitoring of specific environmental aspects, such as soil and water quality (Elias 2000). For example, ISO 16712:2005 covers sediment, soil and water pollution, biological analysis and testing, toxic materials and toxicity. Among others, ISO 16703:2004 and ISO 16772:2004 provide standards for soil testing for particular substances.

3.3.3.2 Regional Level

There are some binding agreements on environmental protection at the regional level, including the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Europe), North American Agreement on Environmental Cooperation, and the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region. All of these have only broad, indirect relevance to site contamination.

United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998)

The Aarhus Convention entered into force in 2001 with 40 signatories. Its objective is to safeguard the right of present and future generations to live in an environment adequate to their health and well-being, by guaranteeing the rights of access to information, public participation in decision-making and access to justice in environmental matters (art. 1). Its relevance for domestic management of site contamination is limited and indirect, but the provisions of the Convention may result in information on contaminated (and potentially contaminated) sites becoming more readily accessible to the general public, particularly the residential population near such sites.

Under the Convention, local authorities must collate, update and disseminate ‘environmental information’, which includes information on soil (arts. 2 and 5(1)(c)). Part of this obligation is to maintain publicly accessible ‘lists, registers or files’ for environmental information (art. 5(2)(b)). Specifically, Convention signatories are required to establish a coherent, nationwide system of pollution inventories or registers in a publicly available format (art. 5(9)). This database is to be compiled using standardised reporting and taking into account ‘international processes where appropriate’. It can include inputs, releases and transfers of certain substances and products in relation to various activities and onsite and offsite treatment and disposal sites.

Other provisions include a requirement that operators, whose activities have a significant environmental impact, regularly inform the public of that impact (art. 5(6)), that public participation be permitted in decision-making on significant activities, and that particular information be provided to the public by the proponent during that process (art. 6(6)). In relation to contaminated sites, public participation can play a significant role during the site investigation and assessment stages, and becomes even more important in the lead-up to the remediation decision. In addition, the Convention requires that access to justice be facilitated by allowing members of the public with a ‘sufficient interest’ to challenge the legality of ‘any decision, act or omission’ (art. 9). These measures could, for example, enable affected persons to object to a remediation decision on a contaminated site on the basis that procedures for public consultation had not been followed.

North American Agreement on Environmental Cooperation (1993)

NAAEC is a side agreement to the North American Free Trade Agreement (NAFTA), whose participants are Canada, the United States and Mexico. It contains broad environmental objectives, such as pollution prevention policies and practices (art. 1(j)). NAAEC obliges the member countries to apply sanctions and remedies to breaches of their environmental laws, such as compliance agreements, fines, imprisonment, injunctions, the closure of facilities, and the cost of containing or cleaning up pollution (art. 5(3)(b)). However, its relevance to site contamination extends no further.

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region and Related Protocols (1986)

The SPREP Convention entered into force in 1990. Parties are required to prevent, reduce and control pollution ‘caused by coastal disposal or by discharges emanating from rivers, estuaries, coastal establishments, outfall structures, or any other sources in their territory’ (art. 7). Similar measures must be taken for pollution caused by the storage of toxic or hazardous wastes (art. 11). However, there are no specific provisions for the management or remediation of contaminated sites, either in the Convention itself or the two associated (1986) protocols to the Convention.

3.3.3.3 Bilateral Level

Examples of general bilateral environmental agreements are numerous, and include the following: La Paz Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area (US-Mexico); United States-Japan Agreement on Cooperation in Environmental Protection (1975); Canada-Chile Agreement on Environmental Cooperation (1997); and the Memorandum of Understanding between the United States Environmental Protection Agency and the State Environmental Protection Administration of China on Scientific and Technical Cooperation in the Field of Environment (2003). There are many more such general bilateral instruments, most of which contain little or no direct reference to any aspect of site contamination.

The Memorandum of Understanding (MOU) between USEPA and China’s SEPA offers some broad provisions on matters relevant to site contamination. It sets out a work program for scientific and technical cooperation on a range of issues, including water pollution, persistent organic pollutants, and hazardous and solid wastes. Specifically, remediation of hazardous waste sites is one type of activity covered by the work program, and strengthening of regulations for waste management is another. A more recent addition to the US-China MOU deals with the development, implementation and enforcement of environmental law. The new Annex 5 to the MOU covers many types of project activities, such as improving the scope and substance of environmental laws and provisions for public participation in environmental law.

Conclusions: General Environmental Protection

If international or regional instruments on general environmental protection refer to site contamination at all, it is in a passing reference. They are more likely to only encourage prevention and mitigation of environmental harm and reinstatement of the environment, and in terms too general to extrapolate any specific duties or management procedures, such as a duty to remediate contaminated sites to a particular standard, or a method for identifying and assessing potentially contaminated sites.

3.4 Liability Measures

Two major notions of responsibility and liability are potentially relevant to the domestic regulation and management of site contamination. State responsibility involves a duty on the part of governments to prevent, mitigate and remedy any harm that may be caused, by activities within their control, to another country. The principle was applied in the high-profile case of Trail Smelter in North America in the late 1930s-early 1940s and has been the subject of lengthy discussions in international law circles since that time (see, e.g., Bratspies and Miller 2006). Its relevance to site contamination may be limited, but nonetheless should not be overlooked.

Civil liability is a tool with more scope for addressing site contamination, particularly the issue of devising a clear system for allocating the costs of site remediation to appropriate parties. The ‘polluter pays’ principle already plays an important role in the regulatory approach of many countries, although it is not always a straightforward matter to apply it, particularly in former Soviet countries. One binding regional agreement now exists on liability for environmental harm and non-binding international guidelines are being developed. Although none of these initiatives deal directly or comprehensively with site contamination, they are relevant to the issue and perhaps constitute a precursor to more specific action.

3.4.1 State Responsibility

States have a general responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or to areas beyond the limits of national jurisdiction (Trail Smelter Arbitration1938, 1941). This principle is also known as the ‘good neighbourliness’ (or sic utere) principle, and has been reaffirmed in the Stockholm Declaration (principle 21) and the Rio Declaration (principle 2).

It is important to distinguish state responsibility from state liability. State responsibility involves an obligation to prevent (unlawful) activities which take place within its borders from causing harm to other States. The consequence of a breach is that the State must either ‘make good’ the damage done, or pay compensation. State liability arises when, perhaps through no actual fault of its own, a State has failed to prevent transboundary harm occurring from activities lawfully conducted within its borders.

Boyle (2005: 7) observes that:

State responsibility will usually be based on breach of an obligation of due diligence in the regulation and control of […] potentially harmful activities. This will not cover damage resulting from events that are either unforeseeable or unavoidable using reasonable diligence.

The principle of state responsibility for transboundary damage is enshrined in international law (Boyle 2005: 3–4). Harmful activities are viewed as ‘internationally wrongful’ where the State has violated an international obligation incumbent on it (Drumbl 2006: 98–99). In 2001, the International Law Commission adopted Draft Articles on the Responsibility of States for Internationally Wrongful Acts. The Draft Articles stipulate when an obligation has been breached and the legal consequences of the relevant breach, but do not include any substantive provisions. Drumbl (2006: 99) contends that the Draft Articles have already had a considerable impact in international law, and have been relied upon by the International Court of Justice (e.g., Legal Consequences of theConstruction of a Wallin the Occupied PalestinianTerritory 2004: para 140).

State responsibility also entails a duty to warn other States promptly about environmental emergencies and environmental damage to which those States may be exposed. As discussed above, this duty was a partial premise for the (unsuccessful) action taken by Argentina against Uruguay in the International Court of Justice to halt the construction of pulp mills by Uruguay along a river bordering both countries (Pulp Mills on theRiver Uruguay2007). However, the ICJ did recognise that Uruguay had a breached a procedural obligation to notify and consult with Argentina prior to constructing the pulp mills.

In the context of site contamination, the principle of state responsibility is confined to the relatively small proportion of site contamination which occurs close to, or across, an international border. A high-profile example of transboundary site contamination is the Trail Smelter site, which caused air and water pollution across the Canadian-US border. However, it is unlikely that the principle of state responsibility could affect the day-to-day management of site contamination located solely within one country’s borders, except where such site contamination coincidentally has (or could have) an international impact. If so, the originating State would have a duty to ensure that the owner or operator of the facility generating the contamination takes measures to prevent or minimise further contamination, in line with the Trail Smelter (1938, 1941) decision. The same State would also be obliged to notify and consult with the affected State in relation to the contamination.

3.4.1.1 Conclusions: State Responsibility

State responsibility has limited relevance to site contamination, being confined to transboundary cases which are likely to be few in number. According to some commentators, the Trail Smelter decision is not applicable to all types of transboundary site contamination in any event (see generally, Bratspies and Miller 2006).

3.4.2 Civil Liability for Environmental Harm

The decision as to whom should be made liable for environmental harm, and how to make appropriate restitution for such harm, has long been an issue of contention within the international community. Attempts to codify international law on the subject have been unsuccessful to date, resulting in draft principles and guidelines, non-binding resolutions and a defunct multilateral agreement instead. States have been unable to agree on a common regulatory approach to civil liability for environmental harm, and it is evident that they consider it a matter for domestic legislation rather than international law.

However, the polluter pays principle has emerged over the past few decades as a leading national approach to civil liability for environmental harm in many developed countries. Although it is not a binding principle of international law, it is nonetheless expressly included in some international instruments and has had a significant impact on domestic legislation. The polluter pays principle is implemented differently by individual countries, depending on how it is interpreted in national legislation and policy.

It is also significant that the general inaction on civil liability for environmental harm apparent at the international level is not necessarily reflected at the regional level. For example, the European Union enacted legislation on liability for environmental damage in 2004 (Environmental Liability Directive). The Directive required all EU Member States to have adequate implementing legislation in place by 2007, a deadline which was largely met (European Commission 2010).

It is possible that such regional measures to regulate civil liability for environmental harm will in turn influence international efforts. This is already suggested by references to the European environmental liability legislation by the Governing Council of the United Nations Environment Programme (2009a), in support of its Draft Guidelines for the Development of National Legislation on Liability, Response Action and Compensation for Damage Caused by Activities Dangerous to the Environment.

3.4.2.1 International Level

The Polluter Pays Principle
At the international level, the polluter pays principle first emerged in 1972. In its original form as a domestic policy tool, the polluter pays principle was neither intended nor designed to deal with transboundary or global pollution (Organisation for Economic Cooperation and Development 1972: 30). It has since evolved through its inclusion in many soft law instruments and national laws and policies (Organisation for Economic Cooperation and Development 2002: 9). A widely recognised description of the polluter pays principle is found in Principle 16 of the 1992 Rio Declaration on Environment and Development:

National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

Pollution-related costs to be borne by polluters may now extend to not only the costs of pollution prevention and control, but assessment and remediation costs, compensation payments, taxes, charges, and other forms of expenditure (Organisation for Economic Cooperation and Development 2002: 10). Where a competent authority steps in to prevent, assess or remedy the pollution damage, the costs of their actions are recoverable against the operator of the facility causing the pollution. As Preston (2008: 177) notes,

The principle plays a role in prevention by justifying the imposition of responsibility for prevention and control of pollution arising from the development and use of land on the person carrying out that activity. This can be done by the imposition of conditions on any approval necessary to carry out the activity.

The principle has been incorporated into both global and regional environmental treaties and continues to be reinforced in international soft law instruments (e.g., Stockholm Convention on Persistent Organic Pollutants 2001; Convention on the Protection of the Alps 1991; Convention on the Transboundary Effects of Industrial Accidents 1992). Despite these developments, and claims that it has become ‘a general principle of international environmental law’, its exact status as a principle of customary international law remains contentious and uncertain (Organisation for Economic Cooperation and Development 2002: 10). In addition, the effectiveness of the polluter pays principle in both global treaties and soft law instruments may be undermined by the lack of a consistent, precise definition of the principle (Organisation for Economic Cooperation and Development 2002: 12–14).

Although the polluter pays principle originated as a domestic policy tool, its relevance for transboundary and global pollution is both evidenced by recent soft law developments and advocated by international actors, such as the OECD (Organisation for Economic Cooperation and Development 1989). The OECD (2002: 30) stated

It could be argued that on the basis of the principle of non-discrimination formulated at the OECD for cases of transfrontier pollution, polluters should be subject to the PPP whatever the type of pollution: national, transfrontier or global. In other words, the fact that pollution affects territories outside national frontiers may be seen as insufficient justification for reducing the polluter’s obligations with regard to pollution levels or costs.

At the domestic level, Preston (2008: 177) observes, ‘the polluter pays principle operates in the remediation of contaminated sites by requiring the polluter to bear the primary liability for the remediation of sites they have contaminated.’

The polluter pays principle is fundamental to site contamination because it now underlies the legislative and policy approaches selected by many countries to address site contamination problems. Statements of the principle in global treaties oblige the treaty parties to take positive action to make polluters (such as site operators, owners and other relevant legal persons) cover the extensive costs of their polluting activities. Soft law instruments also call on governments to take this approach, but compliance remains voluntary.

UNEP Draft Guidelines for the Development of National Legislation on Liability, Response Action and Compensation for Damage Caused by Activities Dangerous to the Environment (2009)
The UNEP Draft Guidelines on liability set out key elements for possible inclusion in a domestic regime for environmental liability. According to UNEP (2009a), the Draft Guidelines are intended to

be of assistance to, in particular, developing countries and countries with economies in transition, to create, as they deem appropriate, the necessary frameworks on which they might base national/domestic legislation or policy on liability and compensation for environmental damage.

The Draft Guidelines could therefore provide useful guidance for the drafting of liability principles in domestic legislation on soil contamination. UNEP foresees practical assistance being given to developing countries and economies in transition to ensure implementation of the guidelines at the national level, ‘including through assisting them to develop or to update their national legislation in this field’ (United Nations Environment Programme 2009a: 2–3).

The commentary to the Draft Guidelines provides further details on how domestic legislation should expand on these key definitions and take particular measures to ensure the effectiveness of the guidelines (United Nations Environment Programme 2009a: 8). UNEP (2009a: 12) has noted that the Draft Guidelines are to be regarded as ‘minimum guidelines on which national legislation could be based and which would require tailoring to specific national circumstances’.

Resolution on Responsibility and Liability Under International Law for Environmental Damage (Institute of International Law 1997)
The Resolution is non-binding and encourages States to reform their environmental regimes to reflect a particular set of common principles. It recommends (at art. 2) that

environmental regimes should include specific rules on responsibility and liability in order to ensure their effectiveness in terms of both encouraging prevention and providing for restoration and compensation.

With regard to civil liability, environmental regimes ‘should prefer the strict liability of operators as the normal standard applicable […], thereby relying on the objective fact of harm and also allowing for the appropriate exceptions and limits to liability’ (art. 5). Primary liability should be assigned to the operator of an activity, or to the State if acting in that capacity (art. 6). Liability should be apportioned to all entities that legitimately may be required to participate in the payment of compensation so as to ensure full reparation of damage (art. 11). Several and joint liability, in addition to primary and subsidiary liability, should be considered (art. 11).

For liability to be imposed, a causal link between the activity undertaken and the damage occurring should be required (art. 7). Where the operator has fully complied with relevant domestic rules or standards, they may be exempt from liability (art. 6). There are further recommendations on limits to civil liability, compulsory insurance and funding schemes (arts. 8–10). Operators (or States where necessary) should be required to respond promptly to damage already caused, and make restoration (art. 14). Failure to do so should invoke civil liability ‘and possible international responsibility’ (art. 15). The entity liable for the costs of taking action should reimburse those who undertook the response action or restoration in their stead (art. 16).

The scope of the recommended compensation and reparation of damage is broad. Damage to the environment should be provided for in addition to the traditional heads of damage, such as death, personal injury and loss of property/economic value (art. 23). Reparation should include cessation of the relevant activity, restitution, compensation and, if necessary, satisfaction (art. 24). Compensation should encompass both economic loss and the costs of environmental reinstatement and rehabilitation. Where damage is irreparable or unquantifiable, other criteria should be used to establish the appropriate compensation to be made (art. 25).

The Resolution aims to promote both the preventive and the restorative purposes of an ideal liability regime for environmental damage. It is one of the few attempts that have been made at the international level to identify the most effective elements of a liability regime and encourage individual States to adopt them at the domestic level. It contains several recommendations relevant to the remediation of site contamination and the allocation of associated costs.

Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities (International Law Commission 2006)

The 2006 Draft Principles adopted by the International Law Commission are directed at hazardous activities which are not prohibited by international law, but which pose a risk of causing significant transboundary harm. Activities which are prohibited by international law are presumed to be covered by the law of state responsibility. ‘Hazardous activities’ are those which carry a risk of causing significant harm (principle 2(c)). The official commentaries to the draft principles indicate that ‘significant harm’ means either a high probability of causing significant transboundary harm or a low probability of causing disastrous transboundary harm (International Law Commission 2006: 116–117).

The Draft Principles focus on providing redress and compensation for victims of transboundary harm, where damage has occurred despite a State having fulfilled its duty of due diligence in accordance with its obligation to prevent harm (International Law Commission 2006: 120). ‘Damage’ includes significant damage caused to the public, property or the environment, and the costs of reasonable measures of response and reinstatement (principle 2).

States are required to take necessary measures to ensure that victims of transboundary harm obtain ‘prompt and adequate compensation’ (principle 4(1)). These measures should include imposing strict liability on the operator ‘or, where appropriate, other person or entity’ involved in the activity causing the transboundary harm (principle 4(2)). ‘Operator’ is defined as ‘any person in command or control of the activity at the time the incident causing transboundary damage occurs (principle 2(g)). States should also require operators to have financial insurance or bonds to cover compensation, and establish national, industry-wide funds to contribute to compensation costs (principles 4(3) and 4(4)). Where the funds from these two sources are insufficient, the State should make additional funds available (principle 4(5)).

If an incident occurs which may present a significant risk of transboundary harm, the originating State is obliged to notify all potentially affected States of the incident and its possible effects (principle 5(a)). It should also ensure that ‘appropriate response measures’ are taken - which may involve the operator - based on the best available scientific data and technology (principle 5(b)). In attempting to mitigate or eliminate the harmful effects, the originating State should cooperate with the potentially affected State(s) (principle 5(c)). Potentially affected States should also take all feasible steps to mitigate or eliminate the harm (principle 5(d)).

Site contamination would only come within the ambit of the draft principles where there is a risk of it causing one of the three specified types of damage, where this damage would have a transboundary impact, and where it is either highly likely to cause ‘significant’ harm or potentially could be ‘disastrous’. The instances of site contamination meeting all of these criteria are likely to be very few, particularly those falling into the ‘disastrous’ category. Moreover, the draft principles are not binding on States, although they may eventually evolve into customary law.

3.4.2.2 Regional Level

Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (1993)

The Lugano Convention was concluded by the Council of Europe in 1993, and is primarily a preventive instrument which seeks to avoid environmental damage caused by dangerous activities. Where damage does occur, the Convention provides measures for compensation and reinstatement of the environment. A controversial aspect of the Lugano Convention is its broad definition of ‘damage’, to include loss of life or personal injury, loss of or damage to property, loss or damage by impairment of the environment, and the costs of preventive measures and any loss or damage caused by taking them (arts. 2(7) and 6).

Compensation for environmental damage under the Convention is limited to the costs of reinstatement measures actually undertaken or to be undertaken (art. 2(7)(c)). ‘Measures of reinstatement’ are any reasonable measures aiming to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of these components into the environment (art. 2(8)). Contracting Parties may decide who is entitled to take such measures. A ‘dangerous activity’ is defined in the Convention as the production, handling, storage, use or discharge of one or more dangerous substances, or any operation of a similar nature dealing with such substances, provided that the activity is performed in a professional capacity (art. 2(1)). ‘Dangerous substances’, for the purpose of the Convention, include substances or preparations having properties which constitute ‘a significant risk for man, the environment, or property’ (art. 2(2)).

Due to the inherently dangerous nature of the activities covered by the Convention, its provisions are based on strict liability, taking into account the polluter pays principle (arts. 6 and 10). The person who controls the dangerous activity at the time of the incident, or at the time the damage becomes known, is held liable (art. 6). ‘Incident’ is defined as ‘any sudden occurrence or continuous occurrence or any series of occurrences having the same origin, which causes damage or creates a grave and imminent threat of causing damage’ (art. 2(11)).

However, the Convention also contains specific principles on the fault of the victim, causation, joint liability of the operators of installations or sites for damage, and a compulsory financial security scheme to cover liability (arts. 9–12). Various exemptions from liability are available, for example, where the activity in question was carried out in compliance with an order or compulsory measure, or in the interests of the person suffering the damage, or where the resulting damage was tolerable (art. 8). There are provisions for public access to technical information held by operators, and non-governmental organisations are able to take legal action to halt unlawful activities and to require preventive measures or reinstatement of the environment (art. 18).

The Lugano Convention is unusual in that it allocates liability for environmental damage occurring within national borders, whereas most global or regional environmental treaties focus on transboundary environmental harm. However, despite being adopted by the Council of Europe in 1993, it is not yet in force and seems unlikely to attract sufficient ratifications to enter into force in the near future (see generally, Boyle 2005: 15–16).

Directive 2004/35/CE on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (European Union)

The Environmental Liability Directive (‘ELD’) entered into force in 2004 and its implementation by the Member States of the European Union was required by 30 April 2007. The objective of the ELD is to establish a framework of environmental liability within the EU region that is based on the ‘polluter pays’ principle, to prevent and remedy environmental damage (art. 1). It is not retrospective, so it applies only to damage caused after April 2007 (art. 17).

The definition of ‘damage’ in the ELD is a ‘measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’ (art. 2(2)). ‘Damage’ specifically includes land contamination, where it creates a significant risk of human health being adversely affected; the risk must arise from the ‘direct or indirect introduction of substances, preparations, organisms or micro-organisms in, on, or under land’ (art. 2(1)(c)). It also includes damage to protected species, natural habitats and water (arts. 2(1)(a) and 2(1)(b)). Activities which are recognised as causing damage are listed in Annex III to the ELD.

The ELD requires operators to take immediate steps to prevent damage where there is an imminent threat of it occurring, and to inform the competent authority if the preventive steps are unsuccessful (arts. 5(1) and 5(2)). Where damage has already occurred, the operator must take ‘all practicable steps to immediately control, contain, remove or otherwise manage the relevant contaminants and/or any other damage factors’ to mitigate the damage, and inform the competent authority without delay (art. 6(1)(a)). Appropriate remediation measures must then be approved by the competent authority and carried out by the operator (art. 7).

All costs of the preventive and remediation measures must be borne by the operator, unless they can prove that the damage was caused by a third party and despite appropriate safety precautions, or that it resulted from compliance with a compulsory order from a public authority (art. 8(3)). These are ‘mandatory’ financial defences, which all Member States must implement (Waite 2005: 51). In such cases the operators must still take the action required under the Directive, but do not have to bear the cost of doing so.

Member States themselves may also legislate to relieve operators of the financial burden (but not the functional requirement) of remediation in two additional situations: (a) where the operator was not at fault or negligent, and the damage was caused by an emission or event expressly authorised in a permit granted in accordance with national legislation (art. 8(4)(a)); and (b), where the emission or activity in question was not considered likely to cause environmental damage ‘according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place’ (art. 8(4)(b)).

Where the operator is absent, or unwilling or unable to take preventive or remedial action, the competent authority may do so (arts. 5(3), 5(4) and 6(3)) and recover the costs from the operator (art. 8(2)). The ELD contains provisions on allocation of costs among multiple parties, limitation periods for costs and intervention by concerned individuals or non-governmental organisations (arts. 9, 10 and 12). It specifically indicates that Member States may adopt more stringent provisions than those contained in the ELD, including additions to the list of harmful activities and potentially responsible parties (art. 16(1)). However, it appears that many Member States are merely transposing the Directive into their national law as it stands, and choosing not to transpose politically sensitive ‘opt in’ provisions, such as compulsory insurance.

3.4.2.3 Conclusions: Civil Liability

There are no international treaty provisions on civil liability for site contamination, although non-binding resolutions, draft guidelines and principles on appropriate liability regimes have been put forward by international organisations. Europe is the only region to have adopted a liability regime for environmental damage which partly addresses site contamination, although it is not retrospective and it applies only to site contamination which poses a significant risk of human health being adversely affected, or which causes damage to protected species, natural habitats or water.

Civil liability for environmental damage remains a controversial issue at the international and regional level. The International Law Commission struggled to reach agreement on draft principles for allocating the costs of hazardous activities, after more than 20 years of deliberations. The Lugano Convention on liability for environmental damage is unlikely to enter into force. The unwillingness of States to adopt binding measures on civil liability perhaps stems from a desire to protect state sovereignty and to avoid undertaking what may be a complete revision of the relevant domestic law in compliance with those measures.

3.5 Summary

The overwhelming conclusion to be drawn from this survey is that there is almost no explicit reference to the subject of site contamination in any international or regional measures, binding or non-binding. Over 200 multilateral environmental treaties, agreements and protocols have been developed since the early twentieth century, but at present there is no international legal instrument which specifically addresses the issue of site contamination (see, e.g., Boer and Hannam 2003). Existing multilateral environmental agreements are either very broad in scope or deal primarily with the management of specific chemicals or wastes which are particularly hazardous or long-lasting. In most cases, these bear very little relevance to site contamination. The agreements are generally preventive in character and objectives, and may to some small extent assist in preventing behaviour which results in site contamination, although this is doubtful.

There are several international instruments and principles which could indirectly relate to a very few aspects of site contamination. However, when viewed together, they are still insufficient to provide a comprehensive approach to the various aspects of site contamination. They do not address in detail the sequential management of site contamination, from the preliminary investigation stage through to the closure and aftercare of sites. Nor do existing measures adequately cater for all physical and legal aspects of site contamination, as they commonly focus on single issues such as hazardous waste or state responsibility. It is not currently possible to draw upon the existing body of international law to manage domestic site contamination in a cohesive or comprehensive manner.

Similarly, there is currently no comprehensive regional agreement on site contamination. Every region has a general environmental agreement, containing broad objectives which are mostly preventive in character. There are also some more specialised agreements on pollution and hazardous waste. Even pollution prevention can be a politically sensitive regional issue (see, e.g., Pacific Regional Environment Programme 2005: 12), which states that it ‘is something that needs to be addressed mainly at national and local levels’, although it acknowledges that there are ‘also regional and global aspects’. Criticism levelled at the draft EU Soil Directive also argues that soil degradation has local and regional (as distinct from Europe-wide) causes and effects (European Parliament 2007a). However, with the exceptions of the European Soil Protocol to the Alpine Convention and the European Environmental Liability Directive, there is no regional agreement which specifically addresses site contamination as an issue in its own right.

The European initiatives that do relate to site contamination have their limitations. The 1998 Soil Protocol to the Alpine Convention is confined to the European alpine region, and the Environmental Liability Directive applies only to liability for significant damage caused after April 2007. The draft EU Soil Framework Directive, which targets contamination only as a sub-issue, is also controversial and presently appears unlikely to be adopted. Yet European law, although it is piecemeal in its coverage of site contamination, is probably the most advanced of any regional legal system in dealing with certain aspects of the issue. European law-makers acknowledge that extensive and consistent regulatory measures on site contamination are needed, and recent developments on environmental liability, water pollution, soil protection and chemical use are an attempt to at least partially fill the gap.

Again, at the bilateral level, there is no binding agreement on site contamination. With the exception of the United States-Germany Bilateral Agreement on Remediation of Hazardous Waste Sites, all existing bilateral agreements have a general environmental protection purpose rather than a specific focus on site contamination. The 1990 US-Germany Bilateral Agreement was made between governmental agencies, not heads of government. Moreover, it relates only to selected sites containing hazardous waste, and remedial methods for those sites. The 1996 Canada-US Exchange of Notes is even more limited in scope, applying to the remediation of a handful of former military sites. Both agreements are over a decade old and neither has led to any further developments in bilateral law on site contamination.

3.6 Conclusions and Analysis

Site contamination is a problem experienced worldwide, although to different extents. The absence of site contamination on the international law-making agenda is in clear contrast to the increasing regulation of site contamination at the domestic level, notably in Europe but also in North America. There are several possible reasons for the lack of profile for site contamination in international law.

One important explanation may be that site contamination is widely seen as a ‘domestic’ or ‘local’ issue, one which predominantly occurs within national borders and therefore is most appropriately regulated at the national or even local government level (see, e.g., Layard 2006: 130). Soil has already suffered from a similar public perception for some time (Wyatt 2008: 167; Hannam and Boer 2002: 9). Matters of biodiversity, climate change and persistent organic pollutants, in contrast, are viewed as being of global importance, and interconnected in such a way as to make national borders irrelevant.

Efforts are now being made to highlight the links between soil, climate change and biodiversity (Futrell 2007: 126; Harbottle et al. 2005; Al-Tabaa et al. 2007), particularly in support of the beleaguered draft European Directive on Soil Protection (Turbé et al. 2010; European Commission 2008b). It is possible that site contamination may eventually benefit from a changed perception of soil as a global issue instead of local issue.

The high variability between soil types may be another reason why site contamination is often viewed as an exclusively domestic issue. Once again, this was recognised as an initial problem for the draft European Directive on Soil Protection (European Commission 2002), but one which it has been sought to overcome by drafting the Directive in general terms and leaving the specifics, such as soil quality values, to be provided by the EU Member States to suit their own soil characteristics.

Another potential ‘image problem’ may lie in the fact that site contamination usually occurs gradually and almost invisibly, at least from the perspective of the public. This is similar for the issue of soil degradation (Wyatt 2008: 192 and 199). As Bouma and Batjes (2000: 38) point out,

soils occur in “darkness” below the surface of the earth and, in contrast to weather and water, are not directly visible and cannot be experienced by the senses unless one digs a hole.

As a result, soil degradation (including contamination) may often be an unseen, unknown or poorly understood phenomenon. Given the lack of public awareness of soil functions generally, it should not be surprising that public pressure and subsequent political motivation to address contamination issues is lacklustre. Regulatory action may only be taken in response to a sudden and obvious case of contamination, such as an unsightly, toxic discharge of contaminants into a river.

A further obstacle to international action on this issue is its complex nature (with reference to soil degradation, see Wyatt 2008: 200). Site contamination encompasses many issues, ranging from the effects of contaminants on basic physical elements (e.g., soil and water) to broader issues such as spatial planning, property rights, manufacturing processes and costs, and liabilities of individuals and companies (Carlon et al. 2008: 113). The management of site contamination necessitates the use of detailed procedures and clear standards, including for the operation of facilities, the application of tests, monitoring procedures and risk assessment, the remediation and future use of contaminated sites, and the imposition of responsibility on government bodies, companies and individuals.

Without external pressure arising from international obligations, governments may be reluctant to carry out the fundamental legislative and policy changes required to address site contamination comprehensively (regarding soil protection measures, see Wyatt 2008: 192). Similarly, without guidance from an internationally-agreed approach to the issue, governments of developing countries may lack the knowledge required to introduce effective domestic measures. Chapter 4 below examines the various domestic approaches to site contamination that have emerged in some countries, and the lack of site contamination law or policy in others.

Whether therefore site contamination has been deliberately discounted as a subject of international environmental law or has simply failed to achieve sufficient recognition as an environmental issue to generate international measures is a moot question. In either event, the question remains whether it may be possible in the future to develop an international instrument concerning site contamination. It is evident that leadership on the issue is needed at the international level, given that no global agreement currently deals with site contamination, and few domestic regimes have specific or comprehensive laws on the issue. An international instrument could serve at least three important functions: provide a basic framework for regulating site contamination, raise public awareness of the issue (thereby generating political pressure to act), and provide developing countries with technical and financial assistance to address the problem.

The viability of an international instrument on site contamination will be considered further in Chap. 7, whilst Chap. 8 will examine the alternatives to an international instrument.

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Copyright information

© Springer Science+Business Media Dordrecht 2013

Authors and Affiliations

  1. 1.TanundaAustralia

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