REPORTER: H.M.C. RAMON MARTIN MATEO

SECRETARY: H.M.C. DEMETRIO LOPERENA ROTA

1. BACKGROUND

1. By means of a written document recorded in this International Court of Environmental Arbitration and Conciliation on 17 August 1998, the Lawyer Mr Domingo Gutiérrez Mendivil, in his due legal capacity, requested that this International Court pronounce judgment as to whether the aforementioned waste must be returned to its country of origin, and issued a statement regarding the points contained in the petition.

2. So as to define accurately the terms in which this request is drawn up, it is in order to expound the background material contained in the said petition, as well as the additional information put forward, pointing out for this purpose that the problem brought about by the international conveyance of dangerous waste is posed because large areas of certain "destination" countries might be turned into "poisonous international dumping grounds".

• In March 1987 the company ALCO PACIFICO de MEXICO S.A. de C.V. began its lead-recycling operations under a toll system until April 1991 when the Mexican Federal Government’s Urban Development and Ecology Department (SEDUE) ordered the definitive closure of the company due to its having imported illegally into Mexico car batteries and lead-filled earth from ALCO PACIFIC, INC. United States for the false purpose of recycling these waste materials.

• Around 30,000 cubic metres of lead-contaminated waste, most of which by far had been illegally imported from the United States, was left in the "El Florido" Ranch located within the municipal boundaries of Tijuana, B.C.

• We do not know whether this waste had been brought into Mexico with the mandatory authorisation of the Mexican Government, which in no event could have applied article 6 of the Basel Convention regarding the Control of Cross-Border Movements of Dangerous Waste and the Elimination Thereof since this was not in force at the time.

• We understand that article 153 of the 1993 General Ecological Balance Law, which states expressly that "No authorisation may be given for the import of dangerous materials or waste the sole purpose of which is final disposal or simple deposit, storage or confinement within the national territory …" was not in force when the imports took place.

• During recent years the said waste has been transferred upon the initiative of the Mexican Government to the CYTRAR deposit located in the town of Hermosillo, Sonora.

CYTRAR was constructed in the mid-80s by the Ford plant and is therefore a private deposit. It received its first authorisation from the National Ecology Institute on 7 December 1988. This was granted to "Parques Industriales Sonora" for a duration of five years and for regionally-produced waste. On 4 May 1994 the NEI extended the useful life of the deposit but did not restrict it to regional operations. Finally, under the local government of Guatimoc Iberri, it was granted a land-use permission for waste from the industrial estate itself.

• The CYTRAR deposit functions with the backing of two authorisations dated 11 November 1996 and the extension thereof dated 19 November 1997 with numbers DOO-800/005480 and DOO-800-007251, respectively. Both of these were granted by the Federal Government for the operation of a treatment and confinement system for dangerous waste except that of a radioactive nature.

• The location of CYTRAR, six kilometres from the nearest township, is in breach of point 5.15.1 of the Official Mexican Regulations NOM-CRP-ECOL/1993 which lay down the requirements to be met by places set aside for the controlled dumping of dangerous waste: "The minimum distance shall be 25 kilometres as regards towns with populations anticipated to be 10,000 by the year 2010."

As against what is stated by the Department of the Environment, Natural Resources and Fishing, the civic bodies hold that this requirement has been in force since 6 June 1988.

• The said location fails to comply with the geohydrological conditions as set forth in the Official Mexican Regulations which require that the deposit be located in an area that has no connection with aquifers. Should this condition not be fulfilled, the underlying aquifer must be at a depth of at least 200 metres. According to official data, there is an aquifer at a depth of between 16 and 79 metres, as well as another main one between 62 and 142 metres, which are in danger of being contaminated.

• The deposit likewise fails to comply with the legal conditions regarding surface hydrology, which implies a serious risk and danger for the health of local people and for the environment. The location should be 500 metres distant in a straight line from the centre of any surface waterway bed, whether permanent or intermittent and regardless of the size thereof, but a considerable number of streams flow through CYTRAR, one of which is particularly large.

• On 18 November 1996, and "following several negotiations between the Los Angeles district attorney’s office and the PROFEPA" (CNDH, Communiqué 27201, File 122/97SON/2949), Justice Charles Horan gave his approval to the use of 2 million dollars, from a fine of 2.5 million dollars imposed upon the transport company S.R.S/QUEMETCO for the illegal transfer of lead-filled earth to Alco Pacífico, S.A. de C.V. located at kilometre 32.5 on the Tijuana - Tecate - Mexicali road, in order to transport and finally to dump the said imported waste plus that produced by Alco Pacífico in the aforementioned deposit. Officially, the total volume of this waste was around 23,000 cubic metres.

2. CONSIDERATIONS.

This request for judgment put forward by the lawyer Domingo Gutiérrez Mendivil is the first one to be brought before the International Court of Environmental Arbitration and Conciliation, and we therefore point out that what is being requested of us is not a binding statement but a mere opinion based on law, a mere reasoning that might clear up the doubt. This International Court, in its capacity as advisory body for the purpose of the request will perform the function for which it has been set up.

As may be deduced from the de facto background, the course followed by the dangerous waste was as follows: first it was generated by the company ALCO PACIFIC INC. located in the United States of America; it was then imported and acquired by ALCO PACIFICO de México S.A. de C.V., being conveyed to the "El Florido" B.C. Ranch on the other side of the frontier and, finally, once in Mexico, it was dumped in the CYTRAR deposit in Hermosillo, in the area bordering on the United States.

This description shows that two stages were involved, namely an initial stage taking in the import activity until the waste was deposited in the "El Florido" Ranch, and a final stage up until its being deposited in CYTRAR, this taking place within Mexican territory.

The object of Mexico’s obligation to return the dangerous waste, which is being claimed and submitted for consultation by the petitioner, would be the waste that was brought into Mexico from the United States during the period in which the company ALCO PACIFICO de México S.A. de C.V. was in operation, in other words from March 1987 to April 1991.

These facts are merely an example of the practices pursued by waste-producing countries which, as from the nineteen-eighties, chose to export their waste and flaunt the "fashion of getting rid" which, among other factors, was explained by the absence of any international regulations in force at the time. The practice of waste-producing countries prior to the Basel Convention basically deserves to be condemned by the International Community, and these countries have assumed liability with regard to others that have been direct victims of their environmentally-damaging conduct.

There are no problems as regards determining the facts involved in the initial stage since there was clearly a cross-border movement of dangerous waste. An analysis should therefore be made as to whether States may be responsible for applying the Basel Convention of 22 March 1989 to the control of cross-border movements of dangerous waste and the elimination thereof.

The Basel Convention came into force at a general level on 5 May 1992 without containing any provisions for its content to be backdated. Mexico deposited the Convention on 22 February 1991 and, as far as the United States are concerned, the convention had still not been deposited on 22 September 1994. Therefore, during the period in which the import took place, neither the exporter nor the importer of the dangerous waste was bound to comply with what is laid down in the Basel Convention.

Thus, the facts being submitted to judgment fall outside the Convention’s time sphere, which explains the lack of requests or notifications between the exporter and the importer of the dangerous waste, and hence it is not possible to lend support to the exporter’s obligation to return the waste to its country of origin on the basis of the said Convention.

As the Basel Convention was not in force at an international level, the import of the dangerous substances did not, on the basis of these regulations, constitute a breach of international obligations regarding cross-border movements of dangerous waste, and it may thus be stated that the said import was not an unlawful act giving rise to the State’s international liability for this reason.

It should be stressed that, as far as international liability is concerned, contemporary International Law has reacted in the face of the threat of an "ecocide" by laying down that certain particularly serious unlawful acts against the environment may constitute "international ecological crimes", provided that the essential conditions are present as contained in article 19.3.d of the Bill regarding the liability of States, which defines as an international crime:

4. "the existence of a serious breach of an essential obligation regarding the safeguarding and protection of the human environment, as well as of those which forbid massive contamination of the atmosphere or of the seas".

Legal acknowledgement of this point, which is still at an early stage in international environmental law, involves a series of theoretical and practical difficulties as regards its being applied, such as the controversy surrounding universal legitimacy to persecute international ecological crime, the specific characteristics of the relevant penalties and the impossibility of the convicted State’s being able to repair the ecological damage caused by its actions.

In view of the lack of international regulations to govern this matter, the specific obligation to return waste to its country of origin must be included within the general obligation to repair the damage caused to the natural and human environment in the affected region.

This latter obligation could be based upon the new concept of the liability of the States involved "for the harmful consequences of acts which are not forbidden by international law", in other words a kind of objective liability for giving rise to environmental damage without there having been any breach of an international responsibility on the part of the State, and which fulfils the requirements to be applied especially within the sphere of International Environmental Law.

It is worthwhile pointing out that both the specialised doctrine in this matter and the codifying work currently being undertaken by the International Law Commission contribute to the notion of international liability for the harmful consequences arising out of acts not forbidden by International Law becoming progressively established. The emergence of such a concept is explained by the flexibility of the environmental regulations which do not impose specific obligations on States, and in which certain types of conduct are not legally prohibited but in which a compulsory repair mechanism must be laid down as a restriction on the freedom of action of subjects of International Law.

This kind of objective liability, also known as "risk" or "damage" liability is directly linked to the States’ international liability for damages to the environment. This relationship arises out of the existence of a danger inherent in certain activities to which is added a special guarantee to ensure the repair of damage resulting from certain activities which are not forbidden by International Law but which are ecologically dangerous, activities which in the jurisprudence of Anglo-Saxon countries are known as ultra-hazardous or abnormally dangerous activities. Applying this concept requires that there be an actual causality relationship without there having to be culpability or negligence on the part of the State that caused the damage. As a result of the "absolute" nature of such liability, possible causes of exoneration are excluded from being taken into consideration and therefore, once the ecological damage has been caused, the State is bound to respond ,which means that full repair may ensue.

There is still very little room for this kind of international liability to be applied in practice in the ecological field because it has not yet been given a precise legal framework and because States are still reluctant to acknowledge their responsibility for environmental damage even though the aforementioned elements might be present, and these difficulties persist due to the nature of the environmental damage as well as to the high financial cost of achieving full repair.

We believe that the case under consideration may contribute to the progress of the concept being set forth since there is overwhelming evidence of an abuse of Environmental Law.

3. The Existence of Contractual Liability

This is so in our case because, in addition to the correct application of this growing type of international liability, our belief is that there has been a clear breach by both States of the conventional rules of International Law.

Both States’ non-compliance with the international provisions currently governing co-operation in the environmental field may be seen in the failure to ensure the application of the Convention by the national co-ordinators to whom this function was entrusted.

The specific co-operation requirement in environmental matters, set forth under Principle 24 of the 1972 Stockholm Statement, was taken up by both States in a bilateral Agreement between the United Mexican States and the United States of America with a view to co-operating in the protection and improvement of the environment in the border zone. This was drawn up in La Paz on 14 August 1983 and was in force when the facts occurred.

The said Agreement binds both States in a generic sense to co-operate in the field of environmental protection in the border zone, and lays the foundations for co-operation as regards the protection, improvement and conservation of the environment and the problems affecting it.

The co-operation principle involves the duty to exchange information relevant to the protection of the environment, and to undertake actions aimed at furthering research, to obtain technical and financial aid, to establish environmental appraisal programmes and so forth. These actions are to carried out at a regional level in the border zone.

The Agreement likewise includes the principle of preventing cross-border environmental damage, specified in the States’ undertaking to take the necessary steps to prevent, reduce and do away with sources of contamination in their respective territories and which might effect the other’s border zone.

In accordance with this principle 21 of the 1972 Stockholm Statement, States are bound to ensure that the activities carried out within their jurisdiction or under their control do not cause damage to the environment of other States or of areas lying outside the limits of their national jurisdiction.

This principle forms the backbone of International Law and is a legally enforceable obligation deriving from the obligatio concludendi of neighbouring States, in addition to the possibility of its giving rise to liability should any breach thereof occur. At any event, this principle supports the fulfilment of the general obligations regarding consultation, information and notification of any activities that might have considerable cross-border environmental effects.

On the basis of this, the States have common, albeit differentiated responsibilities. As far as the U.S.A. is concerned, apart from being bound to co-operate, it was under the specific obligation not to cause any cross-border environmental damage and was therefore obliged to control the risks of its activities that might bring about contaminating effects in the border zone.

As for the State of Mexico, the background remarks show how the Mexican Government repeatedly failed to comply with the international provisions governing environmental co-operation in relation to the protection and improvement of the environment in the border zone and to the obligation to prevent cross-border environmental damage.

As PSIILLO-MAZZESCHI has pointed out, the States’ obligations are typical obligations as regards the protection of the environment and require active conduct on the part of the State in order to ensure prevention of damage, and the absence of which determines their liability through omission.

The Mexican Government is adopting a tolerant and permissive attitude as regards the import of dangerous waste from San Diego, California, United States, for the exclusive purpose of confining it in the Hermosillo toxic dumping ground. By acting in this way, the State is assuming a negative stance whereby it tacitly accepts the "irregular" import of that waste and is thus in breach of the 1983 Environmental Improvement Agreement. It must be said that such permissiveness does not exonerate the United States from international liability because we are dealing with a breach of the rules of ius cogens as the general co-operation and prevention obligation applicable in the environmental field.

For the purposes of this case, the foregoing means that the Parties must examine on a joint basis the effects resulting from the waste matter being dumped in the environment and, in particular, they must reach a satisfactory solution as regards the return of the waste and the full repair of the environment on both sides of the frontier since they have both contributed to the deterioration of the environment. (The International Court of Justice recently had recourse to the principle of co-operation in its ruling of 25 September 1997 in relation to the Gabcikovo-Nagymaros case.

4. The Obligation of the United States to Apply its own Legislation

In particular the parties must co-operate in order to solve environmental problems of common interest in the border zone. The United States, by way of its Environmental Protection Agency, and Mexico represented by the Federal Government’s Department of the Environment, Natural Resources and Fishing which has replaced the former Department of Urban Development and Ecology, must face up to the repair of the damage in a co-ordinated manner pursuant to the current bilateral agreement by which they undertake to co-operate in good faith when negotiating and drawing up agreements to deal with the problems of air, land and water contamination in the border zone.

The success of this solution will depend on the environmental awareness and the good will of both States as subjects of International Law. It is not difficult to forecast that this way of solving the problem is unsatisfactory when the damage requires immediate repair.

A new approach sheds light on new solutions that will allow us to obtain liability from a State or, if appropriate, from an individual and which might make it possible both to enforce the return of dangerous waste to its place of origin and the obligation to clean and fully repair the environmental damage caused.

If we go over the facts we see that the dangerous waste was produced due to the activity of a company under the control of the United States. Subsequently, the location and incorrect treatment of the dangerous waste caused, in Mexican territory, environmental damage on such a scale as to involve contamination of land, air and waterways as a result of seepage, as well as being a potential source of damage in United States territory. The contamination thus caused not only affects the environment of the United States, but there is also a possibility of United States consumers consuming products grown in the contaminated zone where the damage took place.

It would seem logical that the United States, whose territory serves as base for activities that cause environmental damage elsewhere, or under whose control such activities are performed, should be liable for the resulting damage. The control carried out by the exporting state was not restricted merely to administrative activity, but it was under the obligation to ensure that the waste generated by the activities of a company located in its territory was handled in an ecological and rational manner. Its failure to fulfil this obligation renders it liable for the damage resulting from cross-border conveyance.

In the United States there is a national fund for protection of the environment, the Hazardous Substances Response Fund which was set up in 1980 and is better known as the American Superfund. It constitutes an integrated environmental liability system because, on the one hand, it makes it possible to repair the environment and, on the other hand, it establishes a system of objective liability whereby the state is able to recover the expenses incurred while ensuring the protection of the environment as well as the swift and sure repair of environmental damage. The Superfund will cover the cost of cleaning up the dumped waste and the cost of repairing the natural resources affected by the contamination.

Leaving aside the liability of the State, it would be possible to seek individual liability, in other words that of the company which carried out the export.

The American C.E.R.C.L.A. (Comprehensive Environmental Response, Compensation and Liability Act of 1980) lays down an objective liability system that can be backdated and which is of a solidary nature for the parties potentially liable as regards the public authority.

Section 9607(a) of the C.E.R.C.L.A. points to the following as potentially liable parties:

1. the owner or user of a ship or installation in or from which dangerous substances are produced or released;
2. the owner or user of an installation where dangerous substances are eliminated;
3. the owner or possessor of dangerous substances who arranges transport with a carrier for the purpose of eliminating or treating the same in an installation owned or used by a third party;
4. the person who agrees or has agreed to transport the dangerous substances to the treatment or elimination installation.

Thus it may be stated that the party liable for the damage would be the current owner of the parent company (ALCO PACIFIC INC. of the United States), with it being possible to apply the C.E.R.C.L.A. for two reasons: first, because it generated the dangerous substances and, secondly, because the conditions in which export took place gave rise to potential damage directly affecting the territory and atmosphere of the United States as well as consumers in that country.

Should the current owner of the company ALCO PACIFIC INC. of the United States be declared insolvent, or should no satisfactory response be offered within 60 days the Superfund will, as from that moment, deploy its resources in order to repair the contaminated zone and, afterwards, will exercise right of recovery against the company or individual that caused the damage, channelling the backdated and solidary objective liability of the potentially liable subjects.

On 18 November 1996, Justice Charles Horan gave his approval to the use of 2 million dollars, from a fine of 2.5 million dollars imposed upon the transport company S.R.S/QUEMETCO for the illegal transfer of lead-filled earth to Alco Pacífico, S.A. de C.V. We assume that he applied this precept of the C.E.R.C.L.A., thus it would be appropriate to bring a claim against the parent company before a United States court, or before this judge, so that a decision might be made at least as regards the judge or court with jurisdiction to hear this case.

5. Unlawfulness of the CYTRAR Deposit

Lastly, we must look at the final stage in the handling of the waste, which involved the transfer from "El Florido" Ranch to CYTRAR. These facts bring liability at an internal level onto the Mexican Government, and may likewise have an international importance in accordance with regulations currently in force.

The State cannot be exonerated from its liability by transferring responsibility to ALCO PACÍFICO S.A. de C.V., the owner at the time of being declared bankrupt, of about 12,300 cubic metres of dangerous waste acquired in the United States under a temporary import system, and of 18,000 cubic metres of contaminated earth, and by claiming that the company failed to fulfil its legal obligation to return the said toxic waste to its country of origin, namely the United States, without putting forward any legal basis for this.

The Mexican Government is liable before the town of Hermosillo because, in the first place, it allowed a dumping ground to be built at a distance from the town which was not permitted by Mexican regulations in 1988 and, secondly, it allowed the dumping ground to be used as from 1996 under a rule dating from 1993 which strictly forbids the elimination of waste material in an deposit located less than 25 kilometres from the nearest township, and deposited it in a dumping ground which is only for waste from the industrial estate until 1994, thereby endangering the health of the people of Hermosillo.

Neither may it be exonerated from liability by claiming that the transfer of the waste to CYTRAR was carried out under authorisation granted by the Government itself. Fulfilment of permission granted by a public authority cannot confirm non-culpable conduct in the event of a hazardous activity that might put at risk the health of a town and cause damage. The Government is aware that heavy metals do not become chemically stable, the waste being deposited in the state in which it arrives and only being covered with earth.

The Government has failed, with its decision to "relocate" the dumping ground, to effectively repair the environmental damage to which it is bound because this waste deposit is illegal due to its failing to fulfil the conditions laid down in the antedated Mexican environmental legislation and because the land has not been cleaned.

This attitude on the part of the State makes it liable for the dumping of the dangerous waste at CYTRAR while, at the same time, the national environmental regulations are enforceable before the competent national courts.

At the same time, the State is in breach of the obligations arising out of the 1993 North American Environmental Co-operation Agreement between the Governments of Canada, the United Mexican States and the United States of America.

Furthermore, we must point out that, based on the proceeding for relief before the Second District Court in the State of Sonora against the ruling that rejected the appeal for review brought against the authorisations to which we have referred above, the Mexican Government refuses to state publicly, and to the parties involved in the process, in which part of the territory the new deposit for dangerous waste is planned to be set up.

Such an attitude on the part of the Mexican Government could make the State liable for the breach of an emerging principle in International Environmental Law as is the principle of citizen participation, which includes an obligation on States to inform their citizens in relation to their surrounding environment.

It is at a national level where all people should have suitable access to the environmental information in the possession of the public authorities, including information as to potentially dangerous materials and activities in their communities, as well as the opportunity to participate in decision-making and to have effective access to legal and administrative procedures, compensation for damages and the relevant appeals.

The State is likewise currently bound to act in accordance with this general obligation by virtue of article 6 of the 1993 North American Environmental Co-operation Agreement between the Governments of Canada, the United Mexican States and the United States of America, which governs access of private persons to the procedures for presumptive breaches of its environmental laws and regulations.

6. Problems regarding to the jurisdiction of the dispute

Professor Eckard Rehbinder suggests the necessity of a legal basis for the extraterritorial scope of the liability based on C.E.R.C.L.A. in accordance with our opinion.

To reach a solution well founded on International Public Law, we should remind the juridical recognition of the principle of liability and damage recovery and the precautionary principle on transboundary environmental damages since the 1941 Trail Smelter and the 1957 Lake Lanoux arbitral awards, which are clear statements on international practice of what can be applied to the consequences of the possible fulfilment of the bilateral Agreement between the United Mexican States and the United States of America with a view to co-operating in the protection and improvement of the environment in the border zone, drawn up on 14 August 1983.

From a different point of view, we would find the cases of State liability derived from damages caused by non prohibited acts for International Law, which can be the so called "ultra-hazardous" or "abnormally dangerous" activities, as legal basis inter alia of the Judgment by U.S Courts on the 1954 Lucky Dragon and 1979 Soviet Cosmos cases.

1. As Regards the Merits

By virtue of these considerations, the claim for international liability of the States involved on the basis of the 1989 Basel Convention regarding cross-border movements of dangerous waste is closed, and therefore in order to obtain liability it is necessary to abandon the traditional means of repair used in international law as they have proved to be insufficient.

Our assumption doubtless has all the ingredients to obtain the international liability of both States on the basis of the breach of the principles of environmental co-operation and prevention of cross-border environmental damage unanimously accepted by the International Community and by the International Court of Justice, which would be a guarantee for a legal basis in support of an international claim against such acts.

Suitable prevention and protective measures as regards the environment require that the range of the liability mechanisms applicable in this field be extended, by having recourse to the increasing new trends in matters of liability and acknowledging that States may be held liable for actions performed by private individuals acting under their jurisdiction and control on the basis that they are answering for their own acts as regards the breach of an international obligation to ensure surveillance and protection.

In the absence of any international rule, the satisfactory solution to the problem of answering for environmental damage caused by States is to hold the States internationally liable in the sense of acts not forbidden by international law for the reasons already given. As far as the practice of States is concerned, we draw attention to the fact that claims for international liability are between States and that the difficulties persist with regard the legal questions of suitable penalties.

In relation to the case in question, we recommend the solutions that allow full repair of the damage through the American Superfund. The possibility of applying the C.E.R.C.L.A. on a backdated and objective basis justifies the parent company’s liability by achieving almost immediate full repair of the contamination which is the most important consideration in a case such as this one.

Furthermore, the conduct of the State of Mexico in relation to the CYTRAR dangerous waste dumping ground has given rise to environmental damage that is putting the health and life of the people of Hermosillo at serious risk. In view of this it is possible to demand that the State repair the damage caused to the environment, including the specific obligation to return the dangerous waste to its place of origin.

Principle 1 of the Stockholm Statement said expressly that "mankind has the basic right to enjoy suitable living conditions in a quality environment ", hence any breach of this human principle must be internationally condemned.

2. As Regards Procedure

- In order to do so they may be provided with the Court’s legal aid.

At the request of the Secretariat of the International Court of Environmental Arbitration and Conciliation we have the honour to propose this Consultative Opinion, the HH. MM. CC. Ramón Martín-Mateo (Reporter), Eckard Rehbinder, Mary Sancy, Eduardo A. Pigretti and Ricardo Zeledón (Members), all of them Members of the Chamber of Consults therefore appointed.

ENQUIRY of the Secretary General Assistant to certify that this document with its twenty-five pages is given in witness whereof the aforementioned and joined Opinion of the Chamber of Consults.

San Sebastian, 7 April 1999.

Demetrio Loperena Rota

Secretary General Assistant