The Legal Framework Governing Liability for CE Interventions
Rules on liability are an important brick in the establishment and operability of a comprehensive international legal regime applicable to CE. The legal analysis aims at delivering an assessment of the potentially relevant legal rules on liability for CE harm. By building upon the results of and interacting with the research done by the other disciplines, in particular by the economists, it compiles the legal parameters that provide adequate incentives for injurers as well as victims to behave ex ante in a way to minimize the social costs of accidental risk. Finally, components of a future regulatory framework concerning liability for CE harm are proposed that are suitable for ensuring a precautionary governance of CE ultimately needed in order to render a potential recourse to these technologies reliable.
The legal analysis proceeds in three steps. Due to the potentially regional or even global effects of CE, issues of liability will most likely arise in a transboundary setting. This particular nature of accidental CE harm suggests that special attention ought to be paid to the requirements of international liability law. Therefore, in a first step the relevance and accuracy of existing international law vis-à-vis individual CE technologies is examined. Agreements providing for strict liability of the States parties and those limited to the responsibility of particular individuals are reviewed. By taking into account potential effects of accidental harm, it is assessed whether CE ought to be categorized as “hazardous activity” comparable to the peaceful use of nuclear energy or the exploitation and transport of crude oil at sea. Given that the potential risks arising from CE field tests and/or deployment will, to a greater or lesser extent, involve damage to the environment, the work package will furthermore analyze whether and, in the affirmative, to what degree purely environmental harm is included into the respective liability regimes. This assessment of the existing international law builds the basis for the evaluation of potential advancements of the pertinent legal rules and principles undertaken in the second step.
The second step undertakes a comparative assessment of the legal requirements of domestic tort law regimes in light of their potential application to accidental CE harm. Normative categories that demonstrate how the most influential families of law (continental legal tradition; Anglo-American legal tradition) deal with the decisive parameters of (1) standard of liability (strict liability v. negligence), (2) requirements of proof concerning causality (concrete or conclusive evidence, prima facie evidence, reversal of the burden of proof etc.), and (3) duration of liability are identified. This analysis provides input to the work conducted in the final step which focuses on the future law concerning liability for CE interventions. Furthermore, step two is dedicated to the legal rules that determine the applicable law in cases where CE harm is caused by private actions, i.e., to the conflict-of-law-rules.
Based on the analysis of existing international liability law as well as the results of the comparative assessment of central parameters of tort law and the rules concerning conflicts of law, the third step aims at identifying components of a future international liability regime that takes into account the specific nature of and challenges arising from CE interventions. This research necessarily builds upon the knowledge gained in the other disciplines, as both operability and efficiency of liability regimes cannot be evaluated from a purely legal perspective. Central questions to be examined in this work package include:
(1) What features are necessary to make such law incentive compatible, and to create optimal levels of care and precaution?
(2) How can damages be accounted? What methods can and should be employed to assess such damages?
(3) How can international liability law adequately react to the challenge of lacking statistical evidence that forms the empirically observable reality on which conditions of deployment and rules of compensation would traditionally be based, in the case of CE?