This chapter explores alternatives to international environmental liability of the contractor. First, it argues that, although the insurability of environmental liability in DSM is controversial at a theoretical level, it is less problematic at a practical level. Second, it argues that environmental compensation funds and liability regimes share the same purpose and they are functionally complementary. Yet, funds are based on the notion of solidarity, which is fundamentally distinct from liability regimes. Particularly, it analyses the possible contributing entity/entities to an environmental compensation fund to be established in the DSM context, thereby filling in the gap left by international environmental liabilities. Insurance and compensation fund both derive from the idea of ‘allocation of loss’ which includes players other than the one liable; the practicability of these alternatives depends on the willingness of others to join the compensation regimes. Third, it argues that the administrative approach places regulator at the centre of environmental liability regime, it has practical advantages in comparison with the court-centred civil liability approach. Two scenarios for the application of this approach are examined.

The allocation of liability for environmental harm in areas beyond national jurisdiction (ABNJ) is complicated by several factors relating to the nature of the activities undertaken and the nature of environmental harm itself. These include the range of actors involved in activities that may give rise to environmental harm, and features of cumulative environmental damage, arising over a course of time either out of a connected or unconnected set of activities involving multiple actors or from external natural causes. To address these issues, this chapter outlines legal approaches to causation and the challenges that complex causal pathways may present in ABNJ. It then discusses the general approach to allocating responsibility to states and international organizations under international law and national law, and the channeling of liability to operational entities which is the principal approach in sector-specific civil liability regimes. Finally, it explores the rules that structure the allocation of liability in relation to specific ABNJ regimes and activities.

This chapter recalls the distinction between responsibility and liability as it emerged in the work of the International Law Commission and its inherent difficulties, before turning to its relevance in relation to the interplay between the obligation to prevent harm and the prohibition to cause harm, the question of cessation and the procedural treatment at the International Court of Justice of the issues of injury, causality and reparation owed. The chapter questions the received wisdom according to which ‘responsibility’ and ‘liability’ would be two different legal genres and argues that the dichotomy between them is porous.