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#19

Maritime Oil Pollution and Punitive Damages: Advocating International
Environmental Consensus Law



The jury was taken to Prince William Sound to observe the results of Exxon’s
cleanup efforts, six years after the
Exxon Valdez

ran aground at Bligh Reef
:
1


What struck some of these jurors was the absence of wildlife. “The entire
day I never saw one bird flying around or anything else,” says Janette
Garrison. “No otters. I mean, we spend a lot of time in Homer, and I am so
used to seeing otters.” And hear
ing the call of birds overhead. Those birds
previously had been so abundant. Now the skies were clear, but the only
sound was that of the surf and of their own boots on the gravel. It is
estimated that more than three hundred thousand murres, a local bird,

had
perished in the spill.”
2


Rendering one of the largest punitive damage awards in history, the jury
calculated the damage at $5 billion before the award was modified on appeal.
3

With the
continued availability of punitive damages in U.S. courts, the li
kelihood of similar
verdicts increases daily with the aging of the world’s single hull tanker fleet.
4

But are
such remedies possible with regard to disasters in other waters? In 2002,
The Prestige,

a



1

Theodore Eisenberg,
Engle v. R.J. Reynolds Tobacco Co.: Lessons in State Class Actions, Punitive
Damages, and Jury decision
-
making Damage Awards in Perspective: Behind the Headline
-
Grabbing
Awards in Exxon Valdez and Engle
, 36 Wake Forest L. Rev. 1129, 1143 (2001).
See also
Elizabeth R.
Millard
, Anatomy of an Oil Spill: The
Exxon Valdez

and the Oil Pollution Act of 1990
, 18 Seton Hall
Legis. J. 331, 340
-
41 (1993).
See generally

In re the
Exxon Valdez
, No. A89
-
0095
-
CV, 236 F
. Supp. 2d
1043 (2002).

2

D
AVID
L
EBEDOFF
, C
LEANING
U
P
: T
HE
S
TORY

B
EHIND

T
HE

B
IGGEST

L
EGAL

B
ONANZA

O
F

OUR

T
IME
,
292 (1997),
quoted in
Eisenberg,
supra

n. 1.

3

In re Exxon Valdez, No. A89
-
0095
-
CV, 1995 U.S. Dist. LEXIS 12952 (D. Alaska Jan. 27, 1995),
aff’d
. in
part, vacated in part
, Nos. 97
-
35191, 97
-
35192, 97
-
35193, 97
-
35235, 2001 WL 1359852 (9
th

Cir. Nov. 7,
2001).

4

R. M
ICHAEL
M’G
ONIGLE AND
M
ARK
W.

Z
ACHER
,

P
OLLUTION
,

P
OLITICS
,

AND
I
NTERNATIONAL
L
AW

T
ANKERS AT
S
EA
20

(1979).



2

single
-
hulled tanker, sank 130 miles off the coast of Sp
ain, releasing over 12,000 tons of
oil into the Atlantic Ocean and causing an estimated

1 billion in damage.
5

Punitive
damages, considered against public policy, are not generally available in civil law
countries, not even in private, international commercial arbitration.
6

Given that
compensatory damages often under
-
compensate,
7

and offer li
ttle toward deterrence,
8

it is
fair to ask whether a system of punitive remedies should not be available internationally.


This article will explore the background of punitive damages and other punitive
regulatory remedies in the United States, and examin
e the international legal and
regulatory scheme in the rest of the world with regard to maritime oil pollution. It will
become apparent that by applying integration
9

and convergence
10

principles to current
law, a new source of international law can be creat
ed, “international
environmental

consensus law.”
11

By creating an avenue to the remedy of punitive damages, practitioners



5

Richard J. Ferris, Jr., Meg

Caldwell, Kevin T. Haroff, Nicole L. Leonard, and Gwen Parker,
International
Environmental Law,

38
INT’L

L
AW
.487

(2003).

See also
Lloyd’s List Int’l, Issue # 58798, 1 (Nov 29,
2004).
See also Les Echo,
Financial Times Information Lmtd. (FECH), May 9, 200
3, at 1.

6

John Y. Gotanda,
Awarding Punitive Damages in International Commercial Arbitrations in the Wake of
Mastrobuono v. Shearson Lehman Hutton, Inc
.
, 38 Harv. Int’l L.J.59, 62 (1997).

7

D
OUGLAS
L
AYCOCK
,

M
ODERN
A
MERICAN
R
EMEDIES

C
ASES AND
M
ATERIALS

728
, (3
rd

ed. 2002)
(discussing Posner’s rational for punitive damages).

8

Neal Shover and Aaron S. Routh,
Environmental Crime
,
in
C
RIME AND
J
USTICE

A

R
EVIEW OF
R
ESEARCH

321, 353 (Michael Tonry, ed., vol. 32, 2005).

9

See generally
Richard J. Lazarus,
Meetin
g the Demands of Integration in the Evolution of Environmental
Law: Reforming Environmental Criminal Law,

83 Geo. L.J. 2407 (1995).

10

See generally
Linda S. Mullenix,
Reuschlein Lecture
,
Lessons from Abroad: Complexity and
Convergence,
46 Vill. L. Rev. 1 (
2001).

11
In re “Agent Orange” Product Liability Litigation, 580 F. Supp. 690, 713 (1984) (Chief Justice,
Weinstein, E.D.N.Y., discussing lack of precedent and the need for a national consensus law:


That neither New York nor, as far as we have ascertained,
any state has had a case such
as this one before us does not permit our throwing up our hands and refusing to decide
the question. Perhaps it would have been better if certification rules permitted posing the
conflicts question to the more than half
-
a
-
hund
red jurisdictions involved. But no such
procedure is presently in place . . .. In the meantime, this court must ascertain the living
state law as best it can. The “evolutionary growth” of the law of conflicts means that each
“litigant, whether in the feder
al or the state courts, has a right that his case shall be a part
of this evolution


a live cell in the tree of justice . . ..”(citing Corbin, The Laws of the
Several States, 50 Yale L.J. 762, 776 (1941))


3

can hurdle the political obstacles common to international claims,
12

bolstering protections
of the “soft law” approach to treaties.
13


Th
e proposed paradigm could be engaged beyond
maritime oil disasters, to other environmental catastrophes where punitive damages are
warranted.


Choosing Oil Pollution as the Paradigm


Of all potential environmental catastrophes, oil pollution is one of the
most deadly
to the environment, and is one of the most prevalent toxic substances in the oceans.
14

While diplomatic efforts are strongly focusing on this problem through a G8 Action Plan,
more must be done.
15

There has been concern about water pollution sinc
e the 19
th

century, but the tremendous increase in oil consumption after World War II brought the





. . . .

For the reasons noted, it is likely that
each of the states would look to a federal or a
national consensus law of manufacturer’s liability, government contract defense and
punitive damages. What is the nature of the national consensus or federal law is a subject
for another memorandum.



Id.);

See also
D
AVID
H.

V
ERNON
,

L
OUISE
W
EINBERG
,

W
ILLIAM
L.

R
EYNOLDS
,

W
ILLIAM
M.

R
ICHMAN
,

C
ONFLICT OF
L
AWS
:

C
ASES
,

M
ATERIALS AND
P
ROBLEMS
683
, (Rev. 2
nd

ed. 2003) “In a 1991 study on
enterprise liability for personal injury, the American Law Institute recommend
ed the application of
“national consensus” state law in mass tort cases.”
Id
;
Cf.
Theodor Schilling,
Constitutionalization of
General International Law

An Answer to Globalization? Some Structural Aspects (Abstract at
www.nyulawglobal.org/fellowsscholars/documents/GFFS05SchillingAbstract.pdf
.
(March 18, 2005)
(“international consensus law”).

12
See generally
M’Gonigle and Zacher,
supra

note 4.
See also

Guruswamy
,
supra

n. 39 at 337 (seeing a
dearth of procedural or secondary rules that enable the recovery of damages in international environmental
law).

13

P.K.
R
AO
,

I
NTERNATIONAL
E
NVIRONMENTAL
L
AW AND
E
CONOMICS
302
-
03, (2002) (arguing that the
“soft law” of environ
mental treaties “requires only vague commitments.”
Id
.).

14

D
OUGLAS
B
RUBAKER
,

M
ARINE
P
OLLUTION AND
I
NTERNATIONAL
L
AW

P
RINCIPLES AND
P
RACTICE

11
(1993).
See also
John Vogler,
T
HE
G
LOBAL
C
OMMONS
--
A

R
EGIME
A
NALYSIS
59

(1995)

(
maritime
transport and dumping ac
counts for 10% each of total pollution of the seas).

15

Ferris,
et. al
.,
supra

note 5 at 487. Members of the G8 are Germany, Canada, the United States, France,
Italy, Japan, the United Kingdom, and Russia. The European Union participates as an observer. The

meeting of June, 2003:

As a first step, the group agreed to accelerate the phasing out of single hulled tankers and further
agreed to accelerate the adoption of guidelines on places of refuge for vessels in distress,
increase compensation funds for victim
s of oil pollution, and improve the training of seafarers,
including the imposition of mandatory minimum qualifications.

Id

at n. 71.


4

matter of oil pollution to the forefront. The huge increase in exported oil was, and still is,
carried mostly by sea.
16

Although the oceans have a huge capacit
y for self
-
purification, it
is being exceeded by a number of pollutants, especially oil.
17

It is estimated that thirty
five million tons per year are deliberately or accidentally poured into the oceans, half
from land based sources, and most of the rest fr
om shipping.
18

The Baltic and
Mediterranean Seas are of special concern, being almost completely enclosed.
19

As
Dellapenna writes: “One can look to the Mediterranean…despoiled by nearly every
coastal state and despite high
-
sounding agreements to protect the
sea, continues to
deteriorate with little being done to correct the situation.”
20

Oil pollution comes from a variety of sources: vessel
-
based; exploitation of the
sea
-
bed; land
-
based pollution, and deliberate dumping.
21

A third of all pollution flows
from of
fshore drilling.
22

In 1973, it was estimated that three million tons of oil went into
the oceans from routine tanker operations, such as flushing out ballast water that is
pumped into the ship once the oil is off
-
loaded.
23

Most of the oil from accidental
di
scharge results from structural failures, groundings, and collisions. While structural
failures account for more volume of oil, the discharges from groundings and collisions
wreak more havoc, in that they usually occur closer to shore. M’Gonigle wrote in 1
973:
“Interestingly, thirty per
-
cent of all collisions occur in the very congested English
Channel and another forty per
-
cent in the North Sea, Baltic Sea, and other waters



16

M’Gonigle and Zacher,
supra

n. 4 at 14.

17

A
LEXANDRE
K
ISS AND
D
INAH
S
HELTON
,

I
NTERNATIONAL
E
NVIRONMENTAL
L
AW

435 (2
nd

ed.

2000).

18

Brubaker,
supra

n. 14 at 34.

19

Kiss and Shelton,
supra
n.17 at 436.

20

Joseph W. Dellapenna,
The Internet and Public International Law: Law in a Shrinking World: The
Interaction of Science and Technology with International Law,
88 Ky. L.J. 809 at
849 (2000).

21

Kiss and Shelton, supra n.17 at 437.

22

Id
. at 436.

23

M’Gonigle and Zacher,
supra

n. 4 at 20.


5

surrounding Western Europe.”
24

Navigational errors accounted for the
Torrey Canyon

and
Argo Merchant

incidents,
25

two dramatic losses provoking great impetus to
international efforts to control oil pollution.
26

Some discussion of the science of oil’s effects on the environment is required, in
order to understand verdicts such as in
Exxon V
aldez.
M’Gonigle explains:

There are four general types of oil most likely to be discharged
from vessels: crude oil, Bunker C fuel oil, diesel fuel oil, and light
petroleum products (gasoline, kerosene). Of these, diesel fuel oil has been
described as the

worst in terms of toxicity, although light petroleum
products also are considered very toxic . . .. Bunker C and viscous crude
oils are noted for their smothering effects on organisms in inter
-
tidal areas,
and they can poison organisms at sea that come in
to contact with the oil
soon after the spill.
27


The affects on humans are virtually unknown,
28

and research has yet to prove
lingering effects on fish populations.
29

It is admitted that knowledge of the effects of oil
in the oceans is “rudimentary and fragme
ntary.”
30

However, there is clear evidence of
other harm: “[o]f all the adverse effects of oil pollution, the most pathetic is the
destruction of wildlife and their habitats . . .. It has been estimated that chronic oil
pollution in the North Sea and North
Atlantic alone kills a staggering total of between
150,000 to 450,000 birds every year.”
31

Just as devastating is the affect on lower forms of
life, closer to the bottom of the food chain. Studies have shown that a spill can kill half of
the phytoplankton a
nd can disrupt entire populations of invertebrates, (snails, crabs, soft
shell clams), for six to eight years. Mangroves, nature’s coastal protector and a source of



24

Id.

25

Id
.

26

Id
. at 6.

27

Id
. at 31
-
33.

28

Brubaker,
supra

n. 14 at 12.

29

M’Gonigle,
supra
n.4 at 35.

30

Brubaker,
supra

n. 14 at 32.

31

Id
. at 34.


6

food for invertebrates and vertebrates, are killed and do not recover from contact with
oil
.
32

The resultant damage to fishing and tourism cannot be discounted.

Experience in the last century has shown that these unfortunate catastrophic
events are likely to occur, based on the aging, single hull tanker theory. Witness the
following litany of ca
lamities: The
Torrey Canyon
, off the coast of Cornwall, 1967;
33

the
Argo Merchant
, off the coast of Massachusetts, 1976;
34

the
Amoco Cadiz,
off the northern
coast of France, 1978; the
Burmah

Agate
, Texas, 1979; the
Puerto Rican,
San Francisco,
1984, the
Aven
us,
Louisiana, 1984; the
Exxon Valdez
, 1989;
35

the
Erica
, 1999; and now
the
Prestige
, Spain, 2002. An intensifying factor to the likelihood of another spill is the
flag
-
of
-
convenience issue, the practice of ship owners assigning to their vessels the
nationa
lity of a state with the least safety regulations. Statistics show that vessels
registered in “flag
-
of
-
convenience” states have some of the worst accident records.
36

The
problem is described succinctly by Goldie:

…[A]s the world’s giant tanker fleet conti
nues to age, more and
more ships become less and less safe. This development is the inevitable
consequence of tanker economics. As ships age, they tend to become the
property of less scrupulous owners, who, in order to glean their profits,
make cuts in the
ir ship’s maintenance and so in their environmental
protection costs. Thus, in order to earn a precarious living, these vessels
will increasingly become menaces on the high seas, creating disasters
afloat and on the shoreline. Hence, the privilege of regis
tering ships under
permissive flags
-
of
-
convenience will increasingly create more severe
problems . . .”
37






32

I
d
. at 31.

33

M’Gonigle,
supra

n. 4 at 144.

34

Lawrence I. Kiern,
Admiralty Law Institute Symposium: Damages in Maritime Cases: Article:
Environmental Damages Under Federal Law,
72 Tul. L. Rev. 693, 707.

35

Millard,
supra

n. 1 at n. 3.

36

M’Gonigle,
supra
n. 4
at 20.

37

L.F.E. Goldie,
Environmental Catastrophes and Flags of Convenience

Does the Present Law Pose
Special Liability Issues?,
3 Pace Y. B. Int’l L. 63 (1991)
reprinted in

Lakshman D. Guruswamy, Sir
Geoffrey W.R. Palmer, Burns H. Weston, Jonathan C. Car
lson,
I
NTERNATIONAL
E
NVIRONMENTAL
L
AW
AND
W
ORLD
O
RDER

A

P
ROBLEM
O
RIENTED
C
OURSEBOOK
at

628,

(2
ND
ed. 1999).


7

Adding insult to injury is the fact that owners of these vessels could essentially
become judgment
-
proof. The International Convention on Civil Liabi
lity for Oil
Pollution Damage, (CLC), defines the “owner” as the “person or persons registered as the
owner of a ship, or in the absence of registration, the person or persons owning the
ship.”
38

The significance of this definition lies in the fact that the

“operator,” the
charterer, is usually in more control of the vessel than is the owner, effectively creating a
“straw man to answer for major maritime pollution.”
39

Thus, the choice of the paradigm of oil pollution prevention and enforcement
becomes an obvi
ous one for study with regard to available punitive remedies. The
possibility of another dramatic loss looms on the future, and the legal community must
search for ways to compensate the victims and, at the same time, build deterrence into a
globally
-
weak
system of enforcement.
40

As Brubaker states: “It appears in this area of
international law, concerns with providing real channels for economic relief for pollution
damage, even catastrophes, do not move States to take concrete action.”
41

And as Plater



38

Id.

See also

International Convention on Civil Liability for Oil Pollution Damage, 1992, concluded at
London, 27 November 1992, Art. I, (3)
repri
nted

in

G
URUSWAMY
,

ET.AL
.,

S
UPPLEMENT OF
B
ASIC
D
OCUMENTS TO
I
NTERNATIONAL
E
NVIRONMENTAL
L
AW AND
W
ORLD
O
RDER
877 (1999).

39

L.F.E. Goldie,
Environmental Catastrophes and Flags of Convenience

Does the Present Law Pose
Special Liability Issues?,
3 Pace Y. B.
Int’l L. 63 (1991)
reprinted in
Lakshman D. Guruswamy, Sir
Geoffrey W.R. Palmer, Burns H. Weston, Jonathan C. Carlson,
I
NTERNATIONAL
E
NVIRONMENTAL
L
AW
AND
W
ORLD
O
RDER

A

P
ROBLEM
O
RIENTED
C
OURSEBOOK
628,

(2
ND
ed. 1999);
Cf
. Patricia W. Birnie and
Alan E. Boy
le
,

I
NTERNATIONAL
L
AW AND THE
E
NVIRONMENT

290
-
91, (1992) (arguing that flag states
might have strict liability, but no state practice exists to test this conclusion).

40

Cf
. Mullenix,
supra

n. 10 at 3:

History has demonstrated that the judicial system lack
s the forecasting powers to anticipate new
problems . . . the most famous illustration of the judicial system’s failure to anticipate new
problems is the rule drafters’ failure in the early 1960s to anticipate modern mass tort litigation .
. . what problem
s will emerge in the next millennium that are not currently foreseeable?”

Id.

at 3
-
4.

41

Brubaker,
supra

n. 14 at 166.


8

said,
“[w]e cannot expect people to maximize the public good and minimize the public
detriments of their activities on the basis of altruism, which is why we have law.”
42


The Remedy of Punitive Damages

One of the great products of work holism in the history of
e
nvironmental law is David Oesting and Brian O’Neill’s triumph in
securing a five billion dollar punitive damage award in the wake of the
spill of the
Exxon Valdez

. . . They did not let their single mindedness
block out their critical “aha!” moment: for [t
hem] it was the discovery of
the five billion dollar figure

an average year’s net profit for Exxon.
43



Loved and scorned at the same time, punitive damages in the United States are
here to stay. That is, as long as they meet the Due Process standard of
Sta
te Farm v.
Campbell
, a single digit ratio between punitive and compensatory damages.
44

Punitive
damages, also known as exemplary damages, are a punitive, civil remedy
45

having roots
in English common law, and even earlier.
46

Punitive damages are historically
separate
from compensatory or nominal awards, “levied to punish and deter certain conduct, . . .
awarded only when one party’s misconduct was willful or malicious.”

47

They were first
awarded in dignitary torts, some scholars theorize, as a way for the cour
t to explain
substantial verdicts.
48

Posner sees multiple rationales for the awarding of punitive
damages: actual damages under
-
compensate; not all torts are detected; and the criminal



42

Zygmunt J.B.Plater,
Facing a time of Counter Revolution

The Kepone Incident and a Review of First
Principles,
29 U. Rich. L. Rev. 657,
694.

43

William H. Rodgers, Jr.,
The Most Creative Moments in the History of Environmental Law: The Who’s,
39 Washburn L.J. 1, 25
-
26 (1999).

44

State Farm Ins. Co. v. Campbell and Barneck, Sp. Admin, 538 U.S. 408, 425 (2003). (the court further
limits puni
tive damages to the particular claim at hand, and thus cannot be based on general company
practice in all states).

45

Laycock,
supra
n. 7 at 5.

46

Id.

at 719
-
21 (
citing

Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757 (1981).
See also
Gotanda,
supra
n. 6 at
61
-
62. “These damages date back to the Code of Hammurabi, which provided that if a person stole
an animal from the temple, that person would have to repay the temple thirtyfold.”
Id.

47

Gotanda,
supra
n. 6 at 62
-
63.

48

Laycock,
supra

n. 7 at 727.


9

justice system is overloaded.
49

Some see punitive damages as the answer t
o the
limitations of the economic harm rule, (limiting damages to those suffering physical
impact to the person or property only),
50

which can adversely impact the availability of a
cause of action to potential plaintiffs in an environmental case.

As indica
ted previously, punitive damages are not available in civil law legal
systems.
51

Because of this, “trade usage thus weighs against arbitral awards of punitive
damages” internationally.
52

In the United States, the availability of punitive damages
varies with

state law, but is not unusual when the matter is framed as toxic tort
litigation.
53

In addition, the Excessive Fines Clause of the 8
th

Amendment has been held
not to apply to punitive damages awards, ameliorated nonetheless by
State Farm’s

Due
Process par
ameters.
54

In the environmental law area, the standard of evidence is “clear and
convincing,”
55

often for behavior that is particularly egregious with regard to compliance
with safety standards. A “defiant attitude,” toward environmental regulations, in



49

Id
. at 72
8.

50

Laycock,
supra
n. 7 at 116
-
17.

51

Mullenix,
supra

n. 10 at 7. (many complex litigation cases settle without punitive damages, for this and
other reasons: “In essence, then, the element of punitive damages has effectively been leeched from
American comp
lex litigation.”
Id
. at 24.).

52

Gotanda,
supra

n. 6 at 66.

53

James R. May,
Control of Toxic Substances: Fashioning Procedural and Substantive Due Process
Arguments in Toxic and other Tort Actions involving Punitive Damages after
Pacific Mutual Life Ins.Co.

v.

Haslip
,
22 Envtl. L. 573, 582
-
83 (1992).
See also
Janet S. Kole, Alan Klein, Sean P. Wajert, and
Christopher M. Roe,
Toxic Tort Litigation: Theories of Liability and Damages,
in
E
NVIRONMENTAL
L
ITIGATION

139 (2
nd

ed. 1999). “Many states direct juries to

determine the amount of punitive damages by
considering the character of the defendant’s act, the nature and extent of harm to the plaintiff, and the
defendant’s wealth. The third factor is generally justified by the notion that it takes more to punish a
rich
person than a poor one.”
Id
.

54

Hershel J. Richman, Alan Klein, and Janet S. Kole,
Toxic Tort Litigation
:
Theories of Liability and

Damages,
in ENVIRONMENTAL

L
ITIGATION
,

ABA

S
ECTION OF
L
ITIGATION
113

(J
anet S. Kole, Larry D.
Espole, Eds. 1991) (citing

Browning
-
Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S.
257 (1989)).
See also

State Farm Ins. Co. v. Campbell and Barneck, Sp. Admin, 538 U.S. 408, 425 (2003);
In re
Exxon Valdez
, No. A89
-
0095
-
CV, 1995 U.S. Dist. LEXIS 12952 (D. Alas
ka Jan. 27, 1995),
aff’d. in
part, vacated in part
, Nos. 97
-
35191, 97
-
35192, 97
-
35193, 97
-
35235, 2001 WL 1359852 (9
th

Cir. Nov. 7,
2001); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).

55

Laycock,
supra

n. 7 at 734.


10

part
icular, has been held to justify an award of punitive damages.
56

The
Doralee

court
said, “Exemplary damages are intended to inject an additional factor into the cost
-
benefit
calculations of companies who might otherwise find it fiscally prudent to disregard

the
threat of liability. To function effectively, the award must be “of sufficient substance to
‘smart’” . . . the offender.”
57

Because of this, the critical evidence of wealth is
admissible.
58


This discussion now arrives at the economic impact of such awa
rds.
Is

there an
impact, and who should decide the economic issue, the judiciary or the legislature? The
procedure known as remittitur is available to protect from unduly harsh awards,
59

and
where the trial judge refuses to make a subtraction, appeals can
be pursued.
State Farm,

Exxon,
and
BMW
are

famous examples.
60

Advocates of environmental protection
naturally desire that this procedure be used sparingly, fearing loss of an important tool in
environmental law which “[forces] potential polluters to take th
e environmental impact of
their activity into account.”
61

It is on the issue of economic impact versus environmental
damage that law and economics scholars and environmentalists lock horns:




56

Diana Garcia,
Remittitu
r
in E
nvironmental Cases: Developing a Standard of Review by Federal Courts,
16 B.C. Envtl. Aff. L. Rev. 119, 142,
citing

Dayton

Malleable
, 11 Envtl. L. Rev. at 21030
-
31;
See also
Doralee Estates, Inc. v. Cities Service Oil Co., 569 F. 2d 716 (1977);
See also
Pl
ater,
supra

n. 42 at 667
citing
Pruitt,

et. al.
v. Allied Chemical Corp., 523 F. Supp. 975 (1981) (
Pruitt

would have brought criminal
charges today, author believes.
Id
. at 691
-
692).

57

Doralee,
569 F. 2d 716 at 723.

58

In Re
Exxon, 236 F. Supp. 2d 1043.
Cf.

Zazu Designs v. L’Oreal, S.A., 979 F. 2d 499 (1997) (Judge
Easterbrook argued that corporations are not wealthy in the sense that individuals are; that corporate wealth
belongs to shareholders)
cited in

Laycock,
supra

n. 7 at 736
-
37; See

also

Eisenberg,
s
upra
n.1 at 1146. “To
promote scholarship to shape legal doctrine, Exxon, stung in the first world of punitive damages by a multi
-
billion dollar award, funded impressive scholarship to try to shape perceptions about the sober mass of
punitive damages award
s . . . and uses that scholarship to attack the punitive damages system.”
Id.

59

Garcia
, supra

n. 56 at n. 1. “Remittitur has been defined as: “The procedural process by which a verdict
of the jury is diminished by subtraction.”
B
LACK

S
L
AW
D
ICTIONARY

116
4 (5
th

ed. 1979).”
Id
.

60

State Farm Ins. Co. v. Campbell and Barneck, Sp. Admin, 538 U.S. 408, 425 (2003);

61

Garcia,
supra
n. 56 at 146.



11

For environmentalists, the concept of justice is inextricably bou
nd
to environmental protection. . [they] believe economists generally lack
appreciation for the gravity of environmental degradation.

. . . .

As a result economists and environmentalists often keep their
distance from one another.

. . . .

One reason env
ironmentalists reject the use of cost
-
benefit analysis
is because it must “reduce all concerns to cash.”

. . . .

Because they consider environmental protection as a moral
imperative, environmentalists often consider costs to be “an irrelevant
distraction
at best, or a harmful exercise at worst”
62




The classic cost
-
benefit analysis comes into play with regard to assessing the risk
for catastrophic potentiality, creating what some see as a lose
-
lose situation for risk
managers.
63

The American Law Institute’s

position is that “[a]n enterprise should be
liable for punitive damages only when there is clear and convincing evidence of reckless
disregard for the safety of others in the decision made by management officials or other
senior personnel.”
64

It is interes
ting to note that in the
Torrey Canyon

incident, the cost of
the ship and cargo was estim
ated at ₤14.24 million, while the cost of prevention and
control would have been ₤7.7 million.
65




62

M. Neil Browne, Kathleen Maloy, and Jessica Pici,
The Struggle for the Self in Environmental Law: The
Conversation
Between Economists and Environmentalists,

18 UCLA J. Envtl. L.& Pol’y 335, 344
-
50
(2000
-
2001).

63

See generally
W. Kip Viscusi,
Symposium: Punitive Damages: The Social Costs of Punitive Damages
Against Corporations in Environmental and Safety Torts,
87 Geo.

L.J. 285 (the
Challenger

incident
illustrates the difficulty in estimating risk) (research for the article supported in part by a grant from the
Exxon Corporation).

64

Id.
at 310.
See also
A
MERICAN
L
AW
I
NSTITUTE
,

E
NTERPRISE
R
ESPONSIBILITY FOR
P
ERSONAL
I
NJU
RY
:

R
EPORTERS


S
TUDY
(1991).

See also
Plater,
supra

n. 42 at 671. Regarding the
Exxon Valdez
: “From the
State of Alaska Oil Spill Commission’s study of the disaster, it became clear that the
Exxon Valdez

disaster
was not the quirk result of a captain with

a drinking problem, but a completely foreseeable result of a series
of industry decisions . . ..”
Id.
(author cites the reduced crew from 36 to 16 men; professional loading crew
also let go, forcing the crew of the
Exxon Valdez

to work without sufficient
sleep, and the single hull of the
tanker).

65

M’Gonigle,
supra
n. 4 at 144.


12

However, there would be no “Catch
-
22” if corporations would do a cost
-
benefit
analysis and institute the necessary precautions within reason. It is when they ma
ke the
decision not to, that the analysis itself becomes evidence of egregious behavior
warranting punishment.
66

This is just one of the reasons that some scholars criticize the
punitive damage remedy, arguing that it ultimately chills innovation and is ag
ainst
consumers’ interests; that it causes “concrete harm,” and “taints the integrity of our
judicial system.”
67

Further, the fact that a corporation is in regulatory compliance is not
a defense to punitive damages.
68

However, some scholars assert that ther
e is no cause for concern with regard to
economic disruption potentially caused by punitive damage awards.
69

“All credible
sources suggest that punitive damage awards are rare, and that they are especially rare in
the visible areas of product liability and
medical malpractice. And when punitive
damages are awarded, they tend to correlate strongly with the level of compensatory
damages.”
70

Eisenberg describes what he sees as a difference in perception and reality in
the awarding of punitive damages:

Two world
s of punitive damages exist. One world occupies the
headlines. It is the world that includes the Florida tobacco litigation . . .the
Exxon Valdez

oil spill,
BMW
. . . and the McDonalds coffee case. The
other is the hidden world of punitive damages that doe
s not make the
headlines. It is a world of rare, modest awards and of reduced or reversed
large awards. Readers of substantial numbers of punitive damages cases
find that the decision to award punitive damages is almost
always

a sound
one.
71




66

Viscusi,
supra
n. 63.
See also
Laycock,
supra

n. 7 at 729. (the jury in
Grimshaw v. Ford Motor Co
.
found the cost
-
benefit analysis reprehensible).

67

Viscusi,
supra
n. 63

at 335.

68

Id.

69

Theodore Eisenberg,
Responses: Measuring the Deterrent Effect of Punitive Damages,
87 Geo. L.J. 347
(1998).
See also
Laycock,
supra
n.7 at 735. “Data does not support the view that large punitive damage
awards have become routine.”
Id
.

70

Eisenberg,
supra
n. 69 at 348.

71

Eisenberg, supra

n.1 at 1130
-
31.


13


Eisenberg furt
her makes the point that the legal system has little experience with cases
having damages in the magnitude of
Exxon Valdez
. Thus, the billion
-
dollar award is
probably not a “radical departure from the usual relation between harm and punitive
awards.”
72




One final issue with regard to the remedy of punitive damages and environmental
claims concerns insurance. It is against public policy to insure against punitive damage
awards, since the purpose is to impact the defendant financially.
73




Integrati
on in the Domestic Regulatory Scheme


Historically, claims for environmental damage were pursued under traditional
common law causes of action, trespass and nuisance.
74

Today, however, a claim could be
pursued under several causes of action si
multaneously: negligence, negligence per se,
nuisance, trespass, strict liability for abnormally dangerous activities, and
statutory/regulatory causes of action.
75

This is known as “integration.”
76

Evidence of
integration can be seen in that state and feder
al regulatory programs do not preempt



72

Id.

at 1146.

73

Eric M. Holmes,
Applicability of Liability Insurance Coverage to Private Pollution Suits: Do We Insure
Pollution?,
40 Tenn. L. Rev. 377, __.
See also

In Re Fernald, No. C
-
1
-
85
-
149, 19
89 U.S. Dist. LEXIS
17761 (court bars government from paying punitive damages from U.S. Treasury; government contractor
must indemnify).

74

Janet S. Kole, Alan Klein, Sean P. Wajert, and Christopher M. Roe,
Toxic Tort Litigation: Theories of
Liability and D
amages,
in
E
NVIRONMENTAL
L
ITIGATION

108
-
120 (2
nd

ed. 1999).

75

Id.

76

Richard J. Lazarus,
Meeting the Demands of Integration in the Evolution of Environmental Law:
Reforming Environmental Criminal Law,
83 Geo. L.J. 2407, 2415 (1995). Integration is defined a
s:

. . . the evolutionary process within any one discrete area of law. It involves an initial
period of confrontation between one body of law’s assumptions, values, and goals and
those underlying other intersecting areas of law. Confrontation is followed
by
accommodation and reconciliation as the two areas of law interact and inform each other
in a process of mutual evolution.


14

lawsuits by private citizens against tortfeasors under common law causes of action.
77

Similarly, punitive damage claims are not barred from environmental claims based on
violations of federal regulatory programs.
78

As wi
th the liability system, punitive damage
claims are not considered as disruptive of state or federal regulatory schemes.
79

To
complete the integration picture, it must be noted that state law and maritime operate
together: “. . . [S]tate law is alive and we
ll in admiralty. State law is habitually adopted in
maritime cases to flesh out federal rules of decision.”
80


Thus, tort law has transformed itself to meet the challenges of environmental
protection. “The result has been the emergence of an entire
ly new area of law referred to
as “environmental torts” as well as the modification of previously long standing tort
doctrines such as nuisance law, causation, and limitation periods.”
81

Lazarus artfully
observes: “. . .environmental laws reflect the comple
xities of the ecosystem itself.”
82

Rodgers echoes this thought: “[e]nvironmental law has always been a seething world of
paradigm shifts. Those paradigm shifts are exemplified by various statutory models.”
83

But statutory schemes alone are not sufficient wit
h regard to environmental protection,
84

painfully obvious in the international arena.




77

Jeffrey J. Rachlinshki,
Regulating in Foresight vs. Judging Liability in Hindsight: The Case of Tobacco,
33 Ga. L. Rev. 813, 820
(1999).

78

Id
. at 840
. See generally
Millard,
supra
n. 1;
See also
South Port Marine v. Gulf Oil and Boston Towing,
56 F. Supp. 2d 104 (1999) (OPA allows for “a wide variety of lawsuits and remedies.”
Id.
at n.12);
N
.
Carolina Shellfish Growers Ass’n v. H
olly Ridge Assoc’s, 278 F. Supp. 2d 654 (2003) (Fed. R. Civ. P. 68
does not foreclose private suits under the CWA); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)
(historic police powers of the state, cited by Laycock,
supra
n. 7 at 622); Clausen Oys
ters v. M/V New
Carissa, 171 F. Supp. 2d 1127 (2001).

79

Id.

at 840
-
41. (CERCLA and the CWA allow for punitive damage claims).

80

Laycock,
supra
n. 7 at 620.
See also
Lawrence I. Kiern,
Admiralty Law Institute Symposium: Damages in
Maritime Cases: Article: E
nvironmental Damages under Federal Law,
72 Tul. L. Rev. 693, 706 (1997).

81

Lazarus,
supra
n. 76 at 2416.

82

Id.

at 2429.

83

Rodgers,
supra

n. 43 at 22
-
23.

84

See generally

Keith N. Hylton,
When Should We Prefer Tort Law to Environmental Regulation?,

41
Wash
burn L.J. 515.


15


Before addressing the international realm of environmental law, a short discussion
of the history of oil pollution regulation and its punitive aspects are neces
sary for a
thorough discussion of punitive damages. The early years of oil pollution regulation in
the United States eerily mirror the weak nature of international enforcement today.
85

However, a combination of tragic maritime accidents and the poor conditi
on of the
nation’s waters finally led to an energized environmental movement in the 1970s, passing
legislative reform.
86

The Water Quality Improvement Act created a regime for oil spill
liability and compensation for vessels,
87

followed by the Federal Water

Pollution Control
Act Amendments of 1972.
88

Later came additional important regulatory safeguards
providing causes of action for oil pollution, including the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), also known as the

Superfund



85

Lawrence I. Kiern,
Admiralty Law Institute Symposium: Damages in Maritime Cases: Article:
Environmental Damages under Federal Law,
72 Tul. L. Rev. 693, 706 (1997):



Congressional action to regulate pollution of the nation’s waters began
timidly and
expanded only modestly and incrementally through much of this century. Congress first
enacted legislation, the New York Harbor Act, in 1886 to reduce pollution damages
caused by vessels to the nation’s waters. That same year coincided with the
launch of the
first true oil tanker, the Gluckhauf, bringing for the first time the threat of a large
-
scale
spill to American waters. Congress soon extended the principles of the New York Harbor
Act to the nation by enacting the Rivers and Harbors Act of 1
899. (. . . known as the
Refuse Act.) However, the new legislation only provided for a criminal misdemeanor,
and it did not establish a statutory right of recovery for the damages caused by the
pollution. Moreover, the statute was designed largely to bar o
bstructions to navigation,
not to prevent pollution or clean it up. . . Similarly, the Oil Pollution Act of 1924 did not
prove effective in preventing pollution of the nation’s waters. It provided penalties only
for the discharge of oil into the nation’s c
oastal waters, but made exceptions for
emergencies, unavoidable accidents, and collisions. Moreover, it provided for limited
regulations designed to protect public health and navigation, but not private parties or the
environment.
Id.


86

Id.

at 708 to 710.

87

Pub. L. No. 91
-
224, 84 Sat. 91 (1970),
superseded by

Pub. L. No. 92
-
500, 88 Stat. 816 (1972) (
codified
as amended in

scattered sections of 33 U.S.C. (1994));
See also
Kiern,
supra

n. 85 at 708, n.78.

88

Pub. L. No. 92
-
500, 88 Stat. 816 (
codified as amen
ded in

scattered sections of 33 U.S.C. (1994)).
See
also
Kiern,
supra

n. 85 at 708, n.79 and 709 (for other oil pollution
-
related statutes expanding the scope of
eligible claimants and damages).


16

Law;
89

the Resource Conservation and Recovery Act (RCRA);
90

and the Oil Pollution
Act of 1990 (OPA).
91

These were used by the U.S. Environmental Protection Agency
(EPA) to force parties to clean up hazardous substances, and contained punitive damag
es
and daily fines for failure to comply with clean up orders “without sufficient cause.”
92


The Superfund Law has been described as “strict and unforgiving,” resulting in
“hundreds of billions of dollars of hazardous waste cleanup liabilities . .

. rotating
through the U.S. legal system.”
93

Fines under OPA resemble those of CERCLA:
“$25,000 per day of violation or an amount of up to $1,000 per barrel of oil . . .,” whereas
“gross negligence or willful misconduct increases the penalty ceilings to $1
00,000 per
day and $3,000 per barrel.”
94

Not to be outdone, RCRA carries “civil penalties of
$25,000 per day per violation, criminal penalties for unlawful treatment of hazardous
wastes up to $50,000 per day per violation and imprisonment of up to two year
s, and
criminal penalties for knowing endangerment that include fines of up to $1,000,000 and
prison terms of up to fifteen years.”
95

However, even with penalties such as these, some
doubt the deterrence effect of statutory penalties exceeds that of tort la
w.
96




89

42 U.S.C. § 9601
-
9675 (1988).
See also
Eisenberg,
supra

n.
69 at 354.

90

42 U.S.C. § 6901


91

33 U.S.C. § 2701;
See also
Janet S. Kole and Stephanie Nye, eds.,
E
NVIRONMENTAL
L
ITIGATION
, (2
nd

ed., ABA 1999).

92

J. Wylie Donald,
Defending Against Daily Fines and Punitive Damages under CERCLA: The Meaning of
“Without Su
fficient Cause,”
19 Colum. J. Envtl. L. 185 (1994) Donald notes that CERCLA § 9607(c) (3)
provides that:

“[I]f any person who is liable for a release or threat of release of a hazardous substance
fails without sufficient cause to properly provide (sic) rem
oval or remedial action upon
order of the President . . ., such person may be liable to the United States for punitive
damages in an amount at least equal to, and not more than three times, the amount of any
costs incurred by the Fund as a result of such f
ailure to take proper action.
Id.

at 186.

93

William H. Rodgers, Jr.,
Environmental Law

58 (1994) quoted

in
Eisenberg,
supra

n. 69 at 354.

94

Eisenberg,
supra

n. 69 at 354 (
citing
33 U.S.C. ?1321(b)(7)(A) and 33 U.S.C. ?1321(b)(7)(D) (1994)).

95

Id.

at 356 (
citing

42 U.S.C. ?6928(a)(3), (c), (d), (e) and (g) (1986)).

96

See generally
Hylton,
supra
n. 84.


17


One legal scholar argues for greater integration of environmental law with criminal
law.
97

Prof. Lazarus, having a unique perspective due to the fact that much of his career
inside the federal system, believes that the integration needed in ap
plying regulatory
penalties is so lacking that it invites allegations of government abuse.
98

The problem is
that criminal prosecution requires “absolute duties” and clear criminal standards, whereas
tort law is better positioned to handle “relative duties.”
99



The significance of Lazarus’s argument in general is not the issue of criminality,
but that environmental law can, and should evolve, through integration with criminal law.
Advocating that environmental law integrate with other areas seems t
o be a popular topic
among legal scholars, an indication of how avant
-
garde environmental law really is.
100

Lazarus evaluated environmental law’s stage of maturity in 1995: “Environmentalism has
prompted evolutionary waves throughout this nation’s laws and i
s now increasingly
reaching towards the international domain.”
101

This portent ten years ago has become a
reality in international environmental law, as this discussion will illustrate. The remainder
of this article will now proceed from integration to the i
nternational realm of
environmental law, and will conclude with what one might say is the international
version of integration: convergence.







97

Lazarus,
supra
n. 76 at 2419.

98
Id.
at 2419
.

(Lazarus served in various capacities from a Justice Department lawyer to that of Asst. to the
U.S. Solicitor Ge
neral).

99

Id.
at 2444.

100

Borrowing a favorite phrase of Kirk Junker, professor of international environmental law at Duquesne
University School of Law.

101

Lazarus,
supra
n. 76 at 2529.


18

Introducing International Environmental Law


It is interesting to note that in the 1970 edition of Von

Glahn’s
Law Among
Nations,
written in 1965, there was no chapter on international environmental law.
102

Now, not only is there a body of international environmental law, it seems to have taken a
journey through the “hard law” of custom and treaties to the “
soft law” of newly formed
norms,
103

and, having found this lacking, and is now searching for solutions holding the
promise of fiercer enforcement and punishment. The problems of enforcing international
environmental law are like any other issue in internatio
nal law; complicated by issues of
state sovereignty and politics, but compounded by the issue of trade; a kind of law
-
and
-

economics debate on a grand scale. Environmentalists frame the debate as whether an
activity meets the requisites of “sustainable dev
elopment”
104

and whether continued
economic growth is even a realistic option.
105


The three major sources of international law as recognized by Article 38 of the
Statute of the International Court of Justice (ICJ) are international conventions (trea
ties);
international custom, as evidence of a general practice accepted as law; and general
principles of law recognized by civilized nations.
106

Judicial decisions and writings of
highly qualified publicists are considered secondary sources of law.
107

Thus, d
ecisions of



102

G
ERARD
V
ON
G
LAHN
,

L
AW AMONG
N
ATIONS

(2d ed., 1970).

103

Rao,
supra
n. 13
, 136
-
38.

104

Agenda 21. Approved by the
U.N.

C
ONFERENCE ON
E
NVIRONMENT AND
D
EVELOPMENT

(UNCED) at
Rio De Janeiro, 13 June 1992. U.N. Doc. A/CONF. 151/26 (vols. I, II, & III) (1992);
reprinted in part in

Guruswamy,
supra
n. 38 at 187.
See also
William L. An
dreen,
Environmental Law and International
Assistance: The Challenge of Strengthening Environmental Law in the Developing World
, 25 Colum. J.
Envtl. L. 17 at 20.

105

Andreen,
supra
n. 104 at n. 41.
See also
Browne,
supra
n. 62.
See also
Kiss and Shelton,
sup
ra
n. 17 at
20. “[The] emphasis on free trade in goods and services in the economic system raises problems of
competitive disadvantages and opposition to trade barriers resulting from environmental protection.”
Id.

106

Statute of the International Court of
Justice.
Concluded at

San Francisco, 26 June 1945.
Entered into
force
, 24 October 1945. 1976 Y.B.U.N. 1052, 59 Stat. 1031, T.S. No. 993;
reprinted in

Guruswamy,
supra
n. 38 at 36.

107

Id.


19

the ICJ are not binding except on those parties and those matters of the particular case.
108

The traditional subjects of international law were states,
109

as opposed to private actors
such as individuals, corporations, inter
-
governmental organizati
ons (IGOs) and non
-
governmental organizations (NGOs). However, with increased globalization
110

and power
of transnational corporations and other groups, non
-
state actors are taking on increasing
roles in the international legal arena.
111


With regard

to the search for punitive damages for oil pollution in international
law, the discussion could well end with the statement made above that punitive damages
are generally unavailable in international law, being considered against public policy in
civil la
w countries.
112

However, it is worthwhile to at least survey the regulatory scheme
internationally. Doing so reveals the potentialities, or lack thereof, of punitive damages in
the international arena. Once the lay of the land is known, integration and conve
rgence
strategies can be applied.


Positivists would advocate that the discussion should begin with treaties, and
perhaps end there too.
113

One not familiar with the workings of treaties would assume
that a written law, signed with pomp and cir
cumstance, would be the final word in
international law. The problem is that they ultimately hold an element of choice, their
power being derived completely from the will of sovereign states to abide by treaty
law.
114

However, the principle of
pacta sunt ser
vanda
115

keeps signing nations somewhat



108

Id.

at 39 (Article 59).

109

Von Glahn,
supra
n. 102 at 134
-
37.

110

Steph
an Hobe,
The Era of Globalisation as a Challenge to International Law, 40 Duq. L. Rev. 655
(2002).

111

Id.

at 657.

112

Gotanda,
supra
n. 6.

113

Kiss and Shelton,
supra
n. 17 at 23.

114

Id.



20

in check, and political pressure can be brought to bear for states that violate their
provisions.
116

Even so, scholars have named the practice of signing a treaty and then not
complying with the provisions as “free
-
rider
ship” in the area of environmental law:
117


Various trade measures contained in some international agreements are
either too weak in their specifications or in their implementation, or both.
Besides, measures to ensure compliance with these provisions do not

normally attract any sanctions or penalties for non
-
complying parties. This
tends to perpetuate regimes of free
-
ridership rather than responsible
environmental partnership. To bring about such a partnership,
considerable additional clarifications are requ
ired of the existing soft laws
and binding hard laws. The GATT/WTO regime remains the most
important international trade regime, but its integration of environmental
factors in trade activities is still very feeble.
118



An even greater buffer betwe
en enforcement and compliance is that in traditional
international law, because only states have official standing, a wrongful act must be
attributed to a state for state responsibility to arise.
119

The obligation is thus described:
“[t]he state must first e
xercise “due diligence” to
prevent

conduct which, if the state were
the actor, would breach international obligations.”
120

Then do issues of causation and
damages arise. However, before a state will become involved, it is generally accepted that
local remedi
es must be exhausted.
121

Even so, it is said that “[t]he field of oil pollution is
governed by treaties.”
122






115

“ Latin, agreements must be kept,”
B
LACK

S
L
AW
D
ICTIONARY

1133 (7
th

ed.

1999);
See also
Rao,
supra
n. 13 at 163 (

Article 27 of the 1969 Vienna Convention on the Law of Treaties: “A party may not invoke
the provisions of its internal law as justification for its failure to perform a treaty.”,
V
IENNA
C
ONVENTION
ON THE
L
AW OF
T
REATIES
,
concluded at
Vienna 23 May 1969,
entered into force
, 27 January 1988, 1156
U.N.T.S. 331),
reprinted in
Guruswamy,
supra
n. 38 at 60.

116

Rao,
supra
n. 13 at 263.

117

Id.
at 294.

118

Id.


119

Guruswamy,
supra
n. 39 at 340.

120

Brian D. Smith,
S
TATE
R
ESPONSI
BILITY AND THE
M
ARINE
E
NVIRONMENT
:

T
HE
R
ULES OF
D
ECISION
34,
36
-
43, (1988)
reprinted in
Guruswamy,
supra
n. 39 at 366.

121

Guruswamy,
supra
n. 39 at 340
.

See also
Articles 5
-
10 to the International Law Commission’s Draft on
State Responsibility,
I
NTERNATIONA
L
L
AW
C
OMMISSION
D
RAFT
A
RTICLES ON
S
TATE
R
ESPONSIBILITY
,

Adopted by the International Law Commission on 12 July 1996, Report of the International Law
Commission on the Work of Its Forty
-
eighth Session. U.N. Doc. A/51/10 and Corr. 1, Pp. 125
-
151;

21


Even though tankers had been in existence for quite some time, the first treaty
designed to prevent oil pollution, the International Conventi
on for the Prevention of Oil
Pollution, (OILPOL), was not signed until 1954. This has since been superseded by the
Protocol of 1978 Relative to the International Convention for the Prevention of Pollution
from Ships, (MARPOL).
123

MARPOL is considered one of
the most effective regulatory
treaties, operating on a basis of permits.
124

Other vessel
-
source pollution is handled under
the auspices of the 1958 Convention on the High Seas
125

and the 1958 Convention on the
Territorial Sea and Contiguous Zone.
126

Land
-
based o
il pollution in the North Sea and
Barents Sea is governed by the Paris Convention, having provisions where contracting
parties are able to settle disputes among themselves.
127

The 1958 Continental Shelf
Convention has a global reach and also applies to offsh
ore installations.
128

However, it is





reprinted
in

Guruswamy,
supra

n. 38, 86.
See also

C.F. Amerasinghe,
L
OCAL
R
EMEDIES IN
I
NTERNATIONAL
L
AW

359
-
361 (1990),
reprinted in

Guruswamy,
supra
n. 39 at 371 (local remedies rule can be excused if
there is no reasonable recourse, including administrative remedi
es; author Ian Brownlie cites Finnish Ships
Arbitration, (1934), RIAA iii 1479 and Norwegian Loans Case, ICJ Reports 157
-
39, Fitzmaurize, 37 B.Y.
(1961) 59
-
64
. Id.)
.

122

Guruswamy,
supra
n. 39 at 343.

123

Vogler,
supra
n. 14 at 62. (OILPOL:
T
HE
I
NTERNATIONAL
C
ONVENTION FOR THE
P
REVENTION OF
O
IL
P
OLLUTION
,

(1954); MARPOL 73/78:
P
ROTOCOL OF
1978

R
ELATING TO THE
I
NTERNATIONAL
C
ONVENTION
FOR THE
P
REVENTION OF
P
OLLUTION FROM
S
HIPS
,

1973
. Concluded at London, 17 February, 1978.
Entered
into force

2 October 1983. I.M
.C.O. Doc TSPP/CONF/11, 1341 U.N.T.S. 3;
reprinted in

Guruswamy,
supra
n. 38, 647.

124

Brubaker,
supra
n. 14 at 62.

125

Id.

at 117
-
131; 1958 Convention on the High Seas:
C
ONVENTION ON THE
H
IGH
S
EAS
. Concluded at
Geneva, 29 April 1958.
Entered into force
, 30 S
eptember 1962. 450 U.N.T.S. 82, 13 U.S.T 2312, T.I.A.S.
No. 5200;
reprinted in

Guruswamy,
supra

n. 38 at 595.

126

Brubaker,
supra
n. 14 at 117
-
131. Convention on the Territorial Sea: Convention on the Territorial Sea
and Contiguous Zone. Concluded at Geneva,

29 April 1958.
Entered into force
, 10 September 1964. 516
U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639;
reprinted in

Guruswamy,
supra
n. 38 at 605.

127

Brubaker,
supra
n. 14 at 99; The Paris Convention: Convention:
C
ONVENTION FOR THE
P
REVENTION OF
M
ARINE

P
OLLUTION FROM
L
AND
-
B
ASED
S
OURCES
,
concluded at

Paris, 4 June 1974.
Entered into force
, 6
May 1978;
reprinted in

Guruswamy,
supra
n. 38 at 707.

128

Brubaker,
supra
n. 14 at 90
-
91; The 1958 Continental Shelf Convention: 499 U.N.T.S. 311 (1964).


22

considered that “both the sources of pollution and continental shelf seabed pollution is
lacking internal control in most of the world.”
129



The 1967
Torrey Canyon
tanker incident publicized the obstacles inherent in
reso
lving complex issues of liability and claims of marine oil pollution. The answer came
with the International Maritime Consultative Organization (IMCO), now IMO,
(International Maritime Organization),
130

which drafted two conventions: one for civil
liability
for oil pollution and the other for oil pollution casualties on the high seas.
131

IMO’s function was to “pass recommendations, convene conferences, draw up
conventions, and facilitated consultations among member states.”
132

They were then
replaced by another c
onvention creating an internal fund for compensation for oil
pollution damage, followed by the Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter.
133

Tanker incidents continued to occur,
134

and in
1982, UNCLOS came into bei
ng (U.N. Convention on the Law of the Sea).
135

UNCLOS
is described as “innovative,” a codification of customary law of the sea, (to be described
further below), and was considered in Agenda 21 as the main source of maritime
pollution law.
136

It had the effect
of taking some of the flag
-
states’ “monopoly on



129

Id.
at 108
. (for various other miscellaneous conventions that could apply, see 100
-
165, for an excellent
summary).

130

Kiss and Shelton,
supra
n. 17 at 438
-
39.
See also
M’Gonigle,
supra
n. 4. (IMCO was under ECOSOC).

131

Kiss and Shelton,
supra
n. 17 at 438
-
39.

132

M’Gon
igle,
supra

n. 4 at 240.

133

Kiss and Shelton,
supra
n. 17 at 439
-
39
. See also

C
ONVENTION ON THE
P
REVENTION OF
M
ARINE
P
OLLUTION BY
D
UMPING OF
W
ASTES AND
O
THER
M
ATTER
.

Concluded at

Washington, 29 December 1972.
Entered into force
, 30 August 1975. 1046 U.N.T.S
. 120, 26 U.S.T. 2403, T.I.A.S. No. 8165;
reprinted in

Guruswamy,
supra
n. 38 at 638.

134

Brubaker,
supra
n. 14 at 26. (chart of tanker spills).

135

U
NITED
N
ATIONS
C
ONVENTION ON THE
L
AW OF THE
S
EA
.
Concluded at

Montego Bay, 10 December
1982.
Entered into for
ce
, 16 November 1994. U.N. Doc. A/CONF.62/122;
reprinted in

Guruswamy,
supra
n. 38 at 748.

136
M’Gonigle,
supra
n. 4 at 249; Kiss and Shelton,
supra
n. 17 at 440.
See also
Guruswamy,
supra
n. 39 at
342 (UNCLOS “is emerging as a constitution of the oceans”
Id.
)
; (Agenda 21 was an action plan developed
at UNCED, 1992.
Id.

at 326)


23

jurisdiction” away, taking over most of the powers of inspection, investigation, and
prosecution of oil spills.
137

Then came the International Convention on Civil Liability for
Oil Pollution Damage
138

and the In
ternational Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, in 1992.
139

These are the principal international treaties. The oil industry supplemented them
with private systems for clean up costs.
140

These an
d other regional treaties did not make
the states more responsible; they transferred strict liability to the owner, corporate or
otherwise, of the vessel.
141

The good news is that this “Polluter Pays Principle”
142

is an
expression of integration; a way of stre
ngthening diplomatic efforts to combat oil
pollution. The bad news is that in reality, states will not litigate on the basis of state
responsibility for political reasons.
143

In addition, strict liability limits damages
recoverable to basically actual damage
s.
144





137

M’Gonigle,
supra
n. 4 at 201.

138

I
NTERNATIONAL
C
ONVENTION ON
C
IVIL
L
IABILITY FOR
O
IL
P
OLLUTION
D
AMAGE
,

1992
.
Concluded at
London, 27 November 1992.
Entered into force

30 May 1996,
rep
rinted in

Guruswamy,
supra
n. 38 at 877.

139

International Convention on the Establishment of an International Fund for Compensation for Oil
Pollution Damage, 1992.
Concluded at
London, 27 November 1992.
Entered into force
, 30 May 1996;
reprinted in

Guruswam
y,
supra
n. 38 at 889.

140

Brubaker,
supra
n.14 at 159
-
60. (TOVALOP, CRISTAL, LOT, COW).

141

Guruswamy,
supra
n. 39 at 343.
See also
M’Gonigle,
supra
n. 4 at 194.
See also
I
NTERNATIONAL
L
AW
C
OMMISSION
D
RAFT
A
RTICLES ON
I
NTERNATIONAL
L
IABILITY FOR
I
NJURIOUS
C
ON
SEQUENCES
ARISING

OUT

OF
A
CTS
N
OT
P
ROHIBITED
B
Y
I
NTERNATIONAL
L
AW
.

A
DOPTED BY THE
I
NTERNATIONAL
L
AW
C
OMMISSION
,

30 May 1989. Report of the International Law Commission on the Work of Its Forty
-
First
Session, U.N. GAOR, 44
th

Sess., Supp. No. 10, at 222, U.N
. Doc. A/44/10 (1989);
reprinted in

Guruswamy,
supra
n. 38 at 81; strict liability: “Liability that does not depend on actual negligence or intent
to harm but that is based on the breach of an absolute duty to make something safe.”
B
LACK

S
L
AW
D
ICTIONARY

9
26 (7
th

ed. 1999).

142

Birnie and Boyle,
supra
n. 39 at 292. “OECD’s (Organisation for Economic Co
-
operation and
Development) Polluter Pays Principle is intended to ensure that the costs of dealing with pollution are not
borne by public authorities but are
directed to the polluter.”
Id.
; (Polluter Pays Principle was first stated in
the 1972 OECD Recommendation of the Council on Guiding Principles Concerning International
Economic Aspects of Environment Policies

See
Rao,
supra
n. 13 at 277).

143

Id.
at 345
-
46 (c
iting the Mines de Potasse d’Alsace case). (unrelated to oil pollution, but a particularly
obvious case of a state refusing to pursue claims is the
Chernobyl

incident; also see the
Sandoz Fire
, in
Guruswamy,
supra
n. 39 at 337 and 345).

144

Patricia W. Birni
e & Alan E. Boyle,
I
NTERNATIONAL
L
AW AND THE
E
NVIRONMENT

150
-
54 (1992),
reprinted in

Guruswamy,
supra
n. 39 at 374.


24

Further, if states are to act as proxy for individuals, they must make the decision
to assert claims for them, and this is just not happening.
145

The
Trail Smelter Case
stands
virtually alone in environmental law where a state pursued a claim and repara
tions were
paid.
146

As Birnie and Boyle put it: “In environmental disputes, states will be primarily be
concerned with preventing anticipated injury in breach of obligations, securing adequate
guarantees against repetition, or obtaining compensation for envi
ronmental injury. It must
be remembered that restitution of the environment may often be impossible,
impracticable, or not economically justifiable.”
147

Thus, “compliance mechanisms as a
complete substitute for adversarial processes” are not useful.
148


The ty
pe of remedies available under the regime of treaty law sound quaint when
compared to the prospect of obtaining punitive damages:

Generally, awards available for damages include monetary compensation
for actual injury or damage suffered, restitution, mone
tary compensation
for non
-
material damage, and satisfaction, which includes apologies,
ceremonial honours, or a Court declaration. Possible defenses include
extinctive prescription, acquiescence and waiver…assumption of risk and
contributory negligence,
fo
rce
-
majeure
applying to acts of war and to
insurrection and civil war, military necessity at times in particular
contexts, and self defense including collective and defense of third states.

. ..
149




145

Brubaker,
supra
n. 14 at 63;
See generally
Peggy Rodgers Kalas,
International Environmental Dispute
Resolution and the Need for Access by
Non
-
State Entities,
12 Colo. J. Int’l Envtl. L. & Pol’y 191 (2001).
See also
Dinah Shelton,
The ILC’s State Responsibility Articles: Right Wrongs: Reparations in the Articles
on State Responsibility,
96 A..J.I.L 833, 834 (2002).


. . .[T]he virtual absenc
e of interstate

cases in subject areas such as human rights and
environmental law suggest that the rules on reparations are more likely to be invoked in
proceedings involving non
-
state actors, where reparations may be essential to the lives or
livelihoods
of those injured.
Id.

146

Shelton,
supra
n. 145 at 854
-
55 (citing The Trail Smelter Case, (U.S./Can.), 3 R.I.A.A. 1905, 1931
(1938, 1941)).

147
Patricia W. Birnie and Alan E. Boyle,
International Law and the Environment,
150
-
54 (1992),
reprinted
in
Guruswamy,
s
upra

n. 39 at 372.

148

Shelton,
supra
n. 145 at 856.
Cf.
Keith N. Hylton,
When Should We Prefer Tort Law to Environmental
Regulation?,

41 Washburn L.J. 515.


149

Brubaker,
supra
n. 14 at 60
-
61. “The area of liability and compensation [in international law] i
s
characterized by customary law provisions.”
Id.
at 60.


25



Even the wording in UNCLOS, heralded as a fine achievemen
t in international
law, is weak and indefinite with regard to reparations: “[states must] ensure that recourse
is available in accordance with their legal systems for prompt and adequate compensation
and other relief in respect of damage caused by pollutio
n of the marine environment by
natural or juridical persons under their jurisdiction.”
150

As in American regulatory law,
the next best thing to punitive damages in the treaty regime is a fine.
151

The nations at the
1962 Conference on Oil Pollution balked at se
tting target levels for fines, only requiring
them to be “adequate in severity.”
152

Worse then feeble penalties, states do not appear to
be enforcing the sanctions they do have.
153

Thus, Shelton describes the remedies in international law as kind of an
aftert
hought.
154

Further, the system is vague and confusing: “. . .the various and
potentially conflicting aims of compensatory justice, deterrence, and punishment that
could provide a coherent basis for developing detailed rules are largely unexamined . . .
This

gap leaves open the question of why and to what extent reparations should be
afforded.”
155

The result is a deleterious effect on deterrence.
156



The systemic failures of traditional environmental law threaten to impact any
claim made for environmental pollu
tion. The political nature of treaties, the problem of
“free
-
ridership,” and the fact of state sovereignty is a framework that works against



150

Article 235(2), UNCLOS,
supra
n. 134. (the reader is invited to examine the afore
-
mentioned
instruments for wording that is any stronger).

151

See generally
Ronald B. Mitchell,
I
NTENTIONAL
O
IL
P
OLLUT
ION AT
S
EA

E
NVIRONMENTAL
P
OLICY
AND
T
REATY
C
OMPLIANCE
(1994).


152

Id.

at 167. (citing Article VI(2) OILPOL 54/62.

153

Id.
323.

154

Shelton,
supra
n. 145 at 836.

155

Id.
at 837.

156

Patricia W. Birnie and Alan E. Boyle,
I
NTERNATIONAL
L
AW AND THE
E
NVIRONMENT
150
-
54 (
1992),
reprinted in
Guruswamy,
supra
n. 39 at 372
-
73.


26

obtaining reparations. The reparations themselves are limited by a strict liability regime.
Because we cannot simp
ly “wish away state sovereignty,”
157

the complexities of the
environment and the laws surrounding it must be leveraged to create a new, more
effective procedure for the pursuit of damages.


Obstacles to Adjudicating Private Environmental Claims


Confrontatio
n is anathema to the diplomatic world. Perhaps that is why there are
so few international environmental cases, and only one where reparations were actually
paid.
158

Mediation, Good Offices, Conciliation, and Inquiry are preferred methods of
settling disputes
.
159

Obviously, the question of
punitive

damages would not come up in
those settings.


And just as there is no single instrument handling the international rules of state
responsibility for pollution,
160

neither is there one tribunal.
161

UNCLOS allows disputes
to be resolved in more than one way: the International Tribunal for the Law of the Sea
(ITLOS); the ICJ; and arbitral tribunals, including a special arbitral tribunal under Article
287.
162

The World Trade Organization (WTO) utilizes the Dispute Settlement
Un
derstanding (DSU),
163

while many environmental treaties make no provisions at all for



157

Robert McLaughlin,
Improving Compliance: Making Non
-
State Actors Responsible for Environmental
Crimes,
11 Colo. J. Invtl. L. & Pol’y 377, 401. (the World Bank’s project in Brazil is often cited as an
environmentally “unsound project” which private parties were unable to block).

158

Kiss and Shelton,
supra
n. 17 at 600 (
Trail Smelter Case)(Trail Smelter
was only a
compromis;
not a
verdict.)
See also
Editors of the Harvard Law Review,
Trends in Internation
al Environmental Law
19
-
28,
(1992),
reprinted in
Guruswamy,
supra

n. 39 at 349.

159
Patricia W. Binrnie & Alan E. Boyle,
I
NTERNATIONAL
L
AW AND THE
E
NVIRONMENT

179
-
86 (1992),
reprinted in

Guruswamy,
supra
n. 39 at 200.

160

Kiss and Shelton,
supra
n. 17 at 606
-
0
7.

161

Editors of the Harvard Law Review,
Trends in International Environmental Law
19
-
28, (1992),
reprinted in
Guruswamy,
supra

n. 39 at 349, ( “. . . [n]o operational system for adjudicating liability has
emerged. The ICJ has heard only one dispute of note
,
The Nuclear Tests Case
.”
Id.
)

162

Kiss and Shelton,
supra
n. 17 at 603.

163

Id.
at 605.


27

disputes.
164

A few, like UNCLOS, offer the option to use the ICJ or arbitration.
165

“This
pattern is consistent with the view that international adjudication, based on rules o
f
international law, has too many disadvantages in an environmental context to be widely
attractive to states as a primary means of dispute settlement.”
166

ICJ’s seven
-
member
chamber established specifically for hearing environmental cases has never been use
d,
167

and ICJ’s jurisdiction in general is based on consent.
168



It bears emphasizing that it is
state actors
that have access to these forums, and
the disputes would largely involve treaty
compliance.
169

Further, as already shown,
“decisions to prosecute claim
s based on state responsibility are taken only in rare
circumstances and victims are often held hostage to the politics of their own country.”
170



The provision in UNCLOS that most approximates punitive damages is Article
230, which allows criminal sanction
s for willful and serious acts of pollution within the
territorial sea.
171

Some scholars propose creating a regime of criminal penalties, in
answer to the weak nature of international environmental law.
172

Similarly, the
International Law Commission has sugges
ted that some environmental disasters are so
serious as to warrant the category of criminal behavior.
173

Although this would not



164

Patricia W. Birnie & Alan E. Boyle,
I
NTERNATIONAL
L
AW AND THE
E
NVIRONMENT

179
-
86 (1992)
reprinted in
Guruswamy,
supra
n. 39 at 197.

165

Id.

166

Id.

167

Kiss and Shelton,
supr
a
n. 17 at 601.

168

Article 36
,

S
TATUTE OF THE
I
NTERNATIONAL
C
OURT OF
J
USTICE
.
Concluded at

San Francisco, 26 June
1945.
Entered into force
, 24 October 1945. 1976 Y.B.U.N. 1052, 59 Stat. 1031, T.S. No. 993;
reprinted in

Guruswamy,
supra
n. 38 at 30.

169

Kiss a
nd Shelton,
supra
n. 17 at 447. (UNCLOS “identifies three states competent to exercise
jurisdiction over matters of marine pollution: flag states; port states, and coastal states.”
Id.
).

170

Guruswamy,
supra
n. 39 at 342.

171

Id.

at 450.

172

Neal Shover and Aaro
n S. Routhe,
Environmental Crime,
in
C
RIME AND
J
USTICE

A

R
EVIEW OF
R
ESEARCH

321, 353 (Michael Tonry, Ed., Vol. 32 2005).

173

Kiss and Shelton,
supra
n. 17 at 606.
See also

T
HE

D
RAFT
C
ODE OF
C
RIMES
A
GAINST THE
P
EACE AND
S
ECURITY OF
M
ANKIND
, First adopted by t
he U.N. Law Commission, 4 December 1954. G.A. Res. 46/405,

28

necessarily make available punitive damages, the discussion of criminality points to
private

actors as the culprits.
174

McLaughlin
advocates obtaining jurisdiction under the
International Criminal Court, which would represent a significant shift away from
traditional international law.
175

He calls the current condition of the law a “crippling
paradox,” where non
-
state actors, the source

of the pollution, do not come under the
jurisdiction of any one of the states sharing in harm.
176

In proposing the use of the ICC,
he strongly advocates the concept of “universal jurisdiction” that already exists over
certain criminal behavior.
177

He admits
that it will require “political will” of the states to
make such a change in international environmental law.
178


Integration and Convergence


Thus, there exists a vacuum in international environmental law with regard to
effective, private recourse for punit
ive damages. If one believes that the most effective
deterrence is found in such damages, and that “[i]t is in the interest of all nations that the
environment be protected from irreparable harm,”
179

then it is the obligation of the legal
community to formul
ate existing law, custom and principle into an effective regime for
pursuing such damages. As authors James Hickey and Vern Walker assert, “[t]he global
community needs a more specific rule of restraint adaptable to a wide range of new
environmental circum
stances, rather than isolated agreements that share only a general





U.N. GAOR, 46
th

Sess., Supp. No. 10 at 198, U.N. Doc. A/46/405 (1991);
reprinted in

Guruswamy,
supra
n. 38 at 1378.

174

See generally
McLaughlin,
supra
n. 157.

175

Id.

176

Id.

at 387.

177

Id.
at 390.

178

Id
.
at 409.

179

Natalie Bridgeman,
Human Rights Litigation Under the ATCA as a Proxy for Environmental Claims,
6
Yale H.R. & Dev. L.J. 1 at 41(2003).


29

preference for pollution prevention.”
180

Something more is needed to discourage the
“race to the bottom,”
181

where nations forum
-
shop for favorable flags
-
of
-
convenience.


Since the United State
s squarely supports the rendering of punitive damages, it is
logical to consider how U.S. courts can be utilized for international environmental goals
of punishment and deterrence. Natalie Bridgeman argues quite convincingly, in
Human
Rights Litigation Und
er the ATCA as a Proxy for Environmental Claims
,
182

that the Alien
Tort Claims Act (ATCA) can be utilized with regard to pursuing foreign environmental
claims.
183

Since integration has become an accepted concept in U.S. domestic law, it begs
the question why w
e cannot grant greater access to foreign claims in the name of
environmental protection. In this way, U.S. domestic law could converge effectively with
international regimes, promoting the various
jus cogens

of environmentalism that are
already recognized
in American jurisprudence.
184

In this way, the remedy of punitive
damages could become available to the rest of the world.


Bridgeman’s detailed analysis is beyond the scope of this paper. However, it
deserves a brief explanation. ATCA was a creation of the
Judiciary Act of 1789, and had
originally been used for the slave trade, war crimes and piracy.
185

Using this in the 1995
landmark case,
Kadic v. Karadzic
,
186

the court held that ATCA applies to violations of



180

James Hickey, Jr. and Vern R. Walker,
Refining the Precautionary Principle in International
Environmental La
w,
14 Va. Envtl. L.J. 423, 426 (1995).

181

Peggy Rodgers Kalas,
International Environmental Dispute Resolution and the Need for Access by Non
-
State Entities,
12 Colo. J. Int’l. Envtl. L. & Pol.’y 191, 195 (2001).

182

Bridgeman,
supra
n. 179.

183

Alien Tort Claim
s Act, 28 U.S.C. 1350 (1994). “The district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.”
Id.

184

Restatement (Third) The Foreign Relat
ions Law of the United States, Part VI, The Law of the
Environment.

185

Bridgeman,
supra
n. 179 at 8.

186

70 F. 3d 232 (1995).


30

customary international law by non
-
state actors.
187

T
he key, however, is to have the
acceptance of international environmental customary law as customary law. This should
not be such a leap, as several authors agree that UNCLOS, for example, has become
customary law.
188

The courts are not yet in agreement on t
his point, and she asserts three
alternative theories under which foreign claims may be pursued. However, she concludes
that the avenue through ATCA seems the clearest.
189


Most importantly, she notes, “compensatory and punitive damages have been
awarded in
numerous ATCA cases, but few of the plaintiffs have collected on the
judgments.”
190

This is more to do with the type of claim, and the seeking of enforcement
abroad, than it does with any conclusion that they are not supported in our courts. As
Bridgeman wri
tes, it would be quite a different story with corporations enjoying the
protection of our laws, than it might be a war criminal, who “[is] essentially estopped
from having further contacts with the United States.”
191


The doctrine of forum non
-
conveniens

pre
sents yet another obstacle to effective
use of ATCA. Some believe that it is only a matter of time before U.S. courts begin to see
the value of access to our forum, and will allow egregious cases of environmental
damage to be heard.
192

Ironically, in the fli
ght from the political environment of
international law, the law arrives at what is essentially a political fight in the United
States, framed in terms of duty and morality: “The United States’ duties as a member of



187

Bridgeman,
supra
n. 179 at 8.

188

Davor Vidas,
The Antarctic Treaty System and the Law of the Sea: A New Dimension Introduced by the
Protocol
, in
G
OVERNING THE
A
NTARCTIC
:

T
HE
E
FFECTIVENESS AND
L
EGITIMACY OF THE
A
NTARCTIC
T
REATY
S
YSTEM
,

61,
reprinted in

Guruswamy,
supra
n. 39 at 415.

189

Bridgeman,
supra
n. 179 at 2.

190

Id.
at 38.

191

Id.
at 39.

192

See generally,
Kalas, supra

n. 145.
See als
o
Katherine Lee Boyd,
The Inconvenience of Victims:
Abolishing Forum Non Conveniens in U.S. Human Rights Litigation,
39 Va. J. Int’l. 41, 82 (1998).


31

the international community also overrid
e convenience considerations. Particularly given
the United States’ sparse record in ratifying human rights treaties, the U.S. has a
compelling interest in enforcing customary international legal standards in its domestic
courts.”
193



Scholars recognize tha
t there is evidence of convergence in the area of punitive
damages, apart from environmental law.
194

Although pessimistic as to punitive damages,
Mullenix recognizes the converging nature of law today: “The globalization of legal
practice will have other con
sequences. As complex legal problems transcend national
borders, American procedural law may well converge with the adjective law of civil law
systems. The pronounced differences between Anglo
-
American procedure and civil law
countries may fade or merge as

each system learns from the experiences of the other.”
195

The doctrines of Monism and Dualism in international law could one day become almost
irrelevant.
196

With the “globalization of justice,” the deterrent tool of punitive damages
could become available, a
nd in the area of oil pollution prevention, nothing could be
more welcome to environmentalists. As Watters so eloquently describes it,

“Environmental law is a dynamic force in convergence and an important
prism though which to examine the larger process o
f globalization. The
international dialogue regarding globalization is well served by increasing
focus on common interests, including shared approaches to environmental
law. By consciously working together to shape convergence, nations have
the opportunity

to influence each other and profoundly alter environmental
law. Through cooperation, convergence raises the prospect for new realms



193

Katherine Lee Boyd,
The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human
Rights Li
tigation,
39 Va. J. Int’l. 41, 82 (1998).

194

Mullenix,
supra
n. 5 at 12.

195

Id.

at 4.

196

Ian Brownlie,
P
RINCIPLES OF
P
UBLIC
I
NTERNATIONAL
L
AW
,

ASSERTING

that Monism is “supreme even
within the municipal sphere,”
reprinted in
Guruswamy, supra

n. 39 at 207
-

208
.


32

of protection for the environment at the national, regional, and
international level.
197




Thus, there is hope for an “inter
national consensus law” that could put teeth into
the current well meaning but frail oil pollution regime that operates internationally. By
borrowing from the United States some of its best self,
i.e.

its concern for the
environment; its willingness to pun
ish egregious behavior; its courts, the world as a
whole could profit for generations to come. Through the application of ATCA, one our
oldest laws, to an area of law that can only be described as avant
-
garde, a new system of
environmental protection could

evolve.

Moreover, why should this evolution not occur? As Hobe has written, “[I]t will
always remain the function of the state to transport values from the domestic order to the
supra
-
national and international legal orders, as well as to be open to inpu
t from the
international legal orders to the domestic scene.”
198

In examining the environmental laws
of oil pollution, it is obvious that more needs to be done in creating a deterrent regime of
oil pollution prevention beyond that of international regulatory

law. Using existing tools
of integration and convergence, international environmental law can be transformed into
international environmental consensus law, and the remedy of punitive damages for
preventable catastrophes could become available.











197

Lawrence Watters, BOOK REVIEW:
Understanding the Framework: Convergence and Environmental
Law in an International and Comparative Context.
A Book Review

P
ROTECTING
O
UR
E
NVIRONMENT
:

G
ERMAN
P
ERSPECTIVES ON A
G
LOBAL
C
HALLENGE
, 14 Geo. Int’l Envtl. L. Rev.

151, 177.

198

Stephan Hobe,
The Era of Globalisation as a Challenge to International Law,
40 Duq. L. Rev
. 655
(2002).


33