Definition of Democracy

Classifying governments as democratic or nondemocratic, as well as identifying episodes of political change as democratizations, is fraught with theoretical and practical pitfalls. For example, Milanovic (2005) finds that when using the Polity IV index of democracy, which has a 20-point scale (−10 to +10) that ranks regimes from most authoritarian to most democratic, where the analyst draws the line (e.g., at 0 or at +1) between democracy and authoritarianism has a significant impact on the findings. Our analysis attempts to avoid engaging with this particular issue by first identifying democratizations and then classifying the regime prior to the democratization as undemocratic and the resulting regime as a new democracy. Consequently, a more accurate term for the countries that we analyze might be “newly democratized” countries rather than democracies.

In building our democratization data set, we have relied on the Polity IV data set on political regime characteristics and transitions (Marshall and Jaggers 2005). Although the aggregation of the various components of the Polity score has been characterized as problematic (Munck and Verkuilen 2002), the extensive disaggregated data on regime characteristics that the Polity project makes available led us to use this measure. In particular, we employ the Polity IV score for the level of constraints on the executive, a factor not assessed by, for example, the classification developed by Przeworski et al. (2000). Consequently, we found the Polity data the most appropriate for our purposes.

RECENT YEARS HAVE SEEN A GROWING NUMBER OF ACAdemics and policy-makers express considerable optimism that democracy and economic growth are not only compatible but also mutually reinforcing. Democracy, for example, is alleged to provide investors with secure property rights, fostering growth that in turn strengthens domestic support for fledgling democratic institutions. As an example of this view, leading democracy scholar Larry Diamond (who, among other responsibilities, has served as a governance adviser in Iraq) recently told a group of African leaders that “Africa cannot develop without democracy,” while further asserting that the academic literature points “clearly” to “a causal effect of democracy on economic growth…” (Diamond 2005, italics added).

As a consequence of that supposed causal relationship, he urged those who were gathered to shun any thoughts of adopting authoritarian solutions to their economic problems. Diamond said that the East Asian miracle, for example, “took place in a historic and regional context that is unlikely to be repeated” and that it therefore failed to provide a relevant developmental model for contemporary political leaders, despite continued growth in such countries as China and Singapore (Diamond 2005). Democracy was not simply one path to development; apparently it was now the only path.

Diamond's line of argument stands in sharp contrast to a long tradition of research in political economy making precisely the opposite claim: namely that democracy and democratic institutions, including elections and powerful legislatures, provide political incentives that undermine long-run growth (for influential arguments, see Huntington 1968 on developing countries and Olson 1982 on the advanced industrial states).

The international community has good reason to be concerned by the fate of the world's young democracies (Freedom House, “Freedom in the World 2008,” Press Release, January 16, 2008). From Latin America to East Asia, constitutional arrangements and democratic institutions are under fire. Is the “third wave” of democratization (Huntington 1991) now receding? If so, what is causing the retreat?

Reports from the field indicate that democracy's health is fragile. During the research and writing of this book, for example, the democratically elected regime of Thanksin Shinwatra in Thailand was overthrown by a military coup in September 2006 (representing the fourth time that democracy had collapsed there), only to see a new but uneasy round of parliamentary elections held 16 months later. Meanwhile, a new move toward democratization in Pakistan (that country's fifth attempt to establish this regime type) was marred by election-related violence culminating in the assassination of former Prime Minister Benazir Bhutto. In Africa, elections in Kenya in late December 2007 that were widely viewed as fraudulent led to widespread bloodletting along ethnic lines.

Elsewhere, democracy in Fiji (the second episode of democracy in that country) abruptly ended in a coup d'etat in December 2006, while in January 2007 the military in Bangladesh conducted what might be called a “soft” coup, maintaining the government in power while demanding that it declare martial law in the face of a deteriorating political situation.

A is the operator of a nuclear power plant. Due to a sudden breakdown of the cooling system, the surrounding land is contaminated by radioactive substances. The breakdown was caused by company C who had been in charge of the recent revision of the cooling system. Neighbour B suffers a loss.

1. Who is liable? What kind of damage may B claim?

2. Would it make any difference if the contamination was the result of a continuous process instead of a sudden incident?

Comparative remarks

Comparison

Liability for nuclear power plants is mainly regulated by international law, namely, the Paris and Brussels Conventions. In Belgium, the Paris and Brussels Conventions were implemented by the Act of 22 July 1985, which was amended by the Act of 11 July 2000. Under the amendment, liability for the operator is limited to €300 million. In France, nuclear power plants are operated by the state-owned Electricité de France (EDF). As an établissement public industriel et commercial, EDF can be sued in civil court, though, according to special legislation, only the Tribunal de Grande Instance in Paris has jurisdiction. Liability is governed by Law No. 68-943 of 30 October 1968, as amended by Law No. 90-488 of 16 June 1990, and is limited to €90 million per accident. In the United Kingdom, the Paris Convention was implemented by the Nuclear Installations Acts of 1965 and 1969. The liability cap is currently £140 million.

Goal of the Questionnaire

Background to the project and methodological remarks

The project forms part of the comprehensive comparative project entitled The Common Core of European Private Law, based in Trento, Italy. The work, started in 1999, seeks to provide a comprehensive analysis of the private law aspects of environmental liability in fourteen jurisdictions from thirteen European countries. The original intent was to cover each of the – at the time when the project was conceived – fifteen Member States of the European Union, but it became apparent that it was impossible to find reporters from Denmark and Luxembourg. The participants in the project, mostly academics and some practitioners with a strong academic background, were selected according to their expertise in the field of the private environmental liability law of their home country. When reading the reports, it is obvious that the results differ, from very scholarly and sophisticated reports to rather short and pragmatic answers, thus reflecting not only the individual approach of the reporter but also the different legal traditions of the countries covered by the project.

The project applies the methodology of the Common Core project as a whole. It follows a strict analytical perspective with the goal of describing the existing law without the intention of qualifying the national solutions from a certain perspective. It was thus not intended to assess the national jurisdictions in terms of environmental protection standards or to achieve further harmonisation in this field of law.

A is a producer of genetically modified organisms (GMOs). As a result of an intentional and legal or an unintentional release of these organisms, B suffers damage.

1. Is A liable to B? Would it be of importance that B is a neighbour to A's site where the release took place?

2. Who would be liable if the release was carried out by the farmer C who had bought a genetically modified organism from A?

3. What kind of damage may B claim?

4. What is the extent of liability if several persons living in the community where the release took place develop minor health damage (e.g. a harmless, but very tiresome allergy) and/or property damage?

Comparative remarks

Comparison

Liability for the risks imposed by genetically modified organisms must cover the scientific development and production of genetically modified organisms, their distribution on the market, and use by farmers and consumers. The distribution of genetically modified organisms on the market is covered under product liability law, which is, due to the harmonising effects of the EC Products Liability Directive, quite similar in all European countries. It provides no-fault liability on the producer for the use and consumption of products placed on the market. Thus, when a consumer is injured by the consumption of a foodstuff or a drug produced by methods of genetic engineering, he or she will be entitled to claim property or personal injury damage from the producer. Damage to the environment, however, is only covered if it constitutes property damage.

General systems of environmental liability

Lugano Convention

In 1993, at Lugano, the Council of Europe passed the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment. The Lugano Convention, which also covers risks with respect to gene technology, has been open to accession since 21 June 1993, though it has not yet entered into force. So far, only nine states (Cyprus, Finland, Greece, Iceland, Italy, Liechtenstein, Luxembourg, Portugal and the Netherlands) have signed the Convention, but no state has yet ratified it.

The Lugano Convention provides for strict liability for damage caused by activities dangerous to the environment, including activities conducted by public authorities. It covers the environmental risks of dangerous substances, genetically modified organisms, dangerous micro-organisms and waste. ‘Dangerous substances’ are defined according to various EC Directives cited in Annex I to the Convention. With regard to waste, the Convention covers installations or sites for the incineration, treatment, handling or recycling of waste (further specified in its Annex II) and sites for the permanent deposit of waste. Liability is imposed on the operator of the activity, who is defined as the person exercising control over a dangerous activity (Article 2 § 5). A ‘person’ under the Convention means any individual or partnership or body governed by private or public law, whether corporate or not, including a state or any of its constituent subdivisions (Article 2 § 6). The operator is allowed to escape liability under various defences (Article 8), including contributory negligence (Article 9).

The notion of environmental damage is a rather recent development in tort law on both a national and an international level. Constant degradation of environmental goods, such as air, water and wildlife, by emissions and old dumpsites and spectacular industrial accidents causing pollution created a new awareness by the public of the environment. National legislation and new international treaties show that tort liability is attributed an increasing role in the protection of the environment by decision-makers. The most recent example is EC Directive 2004/35/EC on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (OJ L 143, p. 56, 30 April 2004). The Directive, however, provides for a rather narrow concept of environmental liability. Although Member States are not prevented from maintaining or enacting more stringent provisions, it must be expected that the Directive will only provide for limited harmonisation of Member State laws with regard to the prevention and remediation of environmental damage. National tort law will therefore continue to play a major part in the field of environmental liability.

This book provides an analysis of how private law regimes in Europe cope with the problem of damage to the environment. In Part I, there are general introductions to the status of environmental liability in Europe and conflict of laws issues regarding transfrontier environmental damage.

Part II of the book contains the comparative project covering fourteen jurisdictions in thirteen European countries. It concentrates on the private law aspects of environmental liability.

A runs an industrial plant that has no adverse effects on the environment, but poses an imminent threat to the environment in case of a breakdown. Due to a breakdown, B suffers loss of, or damage to, property. Fault cannot be established.

1. Is A liable to B? Would there be any difference if B had suffered loss of life or personal injury?

2. What would liability be like if the polluting effects cause minor health and/or property damage to the majority of the people living in the community?

3. Is A liable to B if the damage was caused by unusual circumstances, such as an act of war, hostilities, civil war, insurrection or a natural disaster?

4. Is A liable to B if the damage was caused by an act done by a third party with the intent to cause damage?

5. Is A liable to B if the damage resulted necessarily from compliance with a specific order or compulsory measure of a public authority?

6. Is A liable to B if B has, by his own fault, contributed to the damage?

Comparative remarks

Comparison

Sudden incident

In most countries (Austria, Belgium, Finland, France, Italy, the Netherlands, Portugal, Scotland, Spain and Sweden), the outcome is the same, whether damage is caused by a sudden incident due to a breakdown or by continuous interference. In Germany, however, the victim cannot rely on § 906 BGB and § 22(1) WHG, which relate to continuous interference only.

This is the eighth book in the Common Core of European Private Law series published within Cambridge Studies in International and Comparative Law. The project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger.

The methodology used in the Trento project is novel. By making use of case studies it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and provides a thorough comparison between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core project is offering to the scholarly community is already quite extensive and will become even more so when more volumes are published. The availability of materials attempting a genuine analysis of how things are is, in our opinion, a prerequisite for an intelligent and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. The analytical work carried on today by the almost 200 scholars involved in the Common Core project is also a precious asset of knowledge and legitimisation for any such normative enterprise.

We must thank the editors of and contributors to these first published results. With a sense of deep gratitude we also wish to recall our late Honorary Editor, Professor Rudolf B. Schlesinger.

A engages in a polluting activity. Following exposure to the polluting effects, the community where A's site is situated suffers an increase in the leukaemia rate of more than 50 per cent.

1. Is A liable for the damage if medical studies attest that the pollutants emitted from A's site can lead to leukaemia? What is the plaintiffs' burden of proof on the issue of causation? Who is entitled to damages and to what extent?

2. Who has legal standing and who can be awarded damages, given the fact that the cost of therapeutic treatment is borne by social insurance, or by public authority?

Comparative remarks

Comparison

Statistical evidence

Statistical evidence alone is usually not sufficient to establish causation. It would be sufficient only if the degree of probability shown by the evidence meets the level of certainty required by the relevant jurisdiction, be it a high probability burden close to certainty, as in Austria, Germany and Spain, or preponderance of evidence, as in the Scandinavian and the common law countries. Another problem of statistical evidence is that, in tort law, the causal link between the individual tortfeasors and the plaintiffs must always be established. Statistical evidence that shows only the relationship between one possible tortfeasor and a group of harmed persons fails to meet this requirement, if the harm can also be attributed to a natural cause.

The operator of a scientific laboratory, A, is dealing with dangerous micro-organisms. As a result of the unintentional release of these micro-organisms, B suffers damage.

1. Is A liable to B? Would it make any difference if B was a neighbour to A's site where the release took place? What kind of damage may B claim?

2. Would it make any difference if the operator of the laboratory was a private person or a company, or if the laboratory was run by the state?

Comparative remarks

Comparison

Dangerous micro-organisms

No European country provides for specific liability provisions with regard to dangerous micro-organisms. Therefore, liability as outlined under Case 1 will apply to the operator of such an activity. It is interesting to note that Belgian scholars are ready to apply Article 1385 Civil Code, which holds the owner or keeper of an animal strictly liable for the damage caused by the animal, to animal-like micro-organisms as well. Micro-organisms that are rather of a vegetal nature can be considered to be ‘things’ according to Article 1384 § 1 Civil Code. In Finland and Sweden, the specific environmental damages regime (Finland: Environmental Damages Act 1994; Sweden: Environmental Code 1999, Chapter 32) would be applicable if the damage stems from the polluting interference by micro-organisms. Harm caused by the direct consumption of dangerous micro-organisms or by bodily contact would not be covered by the Acts.