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Territorial Sovereignty and the Problem of Transnational Pollution

Published online by Cambridge University Press:  28 March 2017

Günther Handl
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Extract

In the case concerning the legality of French atmospheric nuclear testing in the South Pacific presently before the ICJ, an issue has been raised of far-reaching implications for the general law of state responsibility for environmental damage.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 1 , January 1975 , pp. 50 - 76
Copyright
Copyright © American Society of International Law 1975

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References

1 Nuclear Tests case (Australia v. France, New Zealand v. France); decision on Fiji’s application to intervene in the case in accordance with Art. 62 of the Statute and Arts. 69 and 70 of the Rules of the Court still pending: Order of July 12, 1973, [1973] ICJ Rep. 320. Given the close identity of the two plaintiffs’ cases, reference will henceforth be primarily made to the Australian case.

2 Application 28, para. 50.

3 Id.

4 Id. at 27, para. 49. “Illegality per se” as used in this paper denotes conduct which is in violation of a specific rule of international law.

5 Application 28, para. 49.

6 Id.

7 Statement by Mr. Ellicott, Solicitor-General of Australia, Nuclear Tests case (Australia v. France), Oral Pleadings, Request for the Indication of Interim Measures of Protection, ICJ Docs., C.R. 73/3, Uncorrected Verbatim Record 47.

8 Becker, and Huard, Tort Liability in the Atomic Energy Industry, 44 Georgetown L.J. 58 (1955)Google Scholar; Hutton, Res ipsa loquitur and Actionable Radiation Injury, 25 Tennessee L. Rev. 327 (1958)Google Scholar; Seavey, Torts and Atoms, 46 Calif. L. Rev. 3 (1958)Google Scholar; Stason, Tort Liability for Radiation Injuries, 12 Vanderbilt L. Rev. 93 (1958)Google Scholar; Rodiere, ResponsabilitS civile et risque atomique, 11 Rev. Int. De Droit Compare 505 (1959)Google Scholar; Wettnauer, Das Atomhaftungsrecht in Nationaleh Und Internationaler Sicht (1964)Google Scholar; and Stone, Liability for Damage caused by Things, in 11 International Encyclopedia of Comparative Law 5–86 to 5–91 (1974)Google Scholar.

9 Application, 18-20, paras. 31–35.

10 Id. at 26, paras. 46–47.

11 For the distinction of the notion of “moral” from “material” injury to the state as used in this article, see e.g. Personnaz, La Répehation Du Préjudice en Droit International Public (1936). While the former constitutes “dommages d’ordre public et politique,” i.e., injury in particular to the honor and dignity of the state and its political interests, the latter constitutes “dommage d’ordre privé et principalment économique,” id. at 10, 17. Cf. also Lais, Dee Rechtsfolgen Völkerrechtlicher Deldcte 26 (1932), Schüle, Wiedergutmachung, in 3 Wörterbuch des Völkerrechts 843 at 844 (1962).

12 Ellicott, supra note 7, at 49.

13 Statement by Senator Murphy, Attorney-General of Australia, ibid. 15: “. . . one of our primary legal propositions is that the deposit of radio-active fall-out from nuclear tests infringes the inviolability of our sovereignty. That proposition does not require Australia to establish the exact extent of the danger of these radio-active materials of which we are the unwilling target . . . The processes of fall-out deposit and the resulting up-take of radio-active material by Australian people is irreversible; the legal injury involved is irreparable.” Emphasis added.

14 Whether or not Chapter XI of the Charter of the United Nations is applicable to Mururoa as part of French Polynesia, and whether in consequence France might possibly be accused of violating its obligations under it by conducting nuclear experiments in the islands, are questions which first of all depend on a finding by the General Assembly in the light of Res. 1514(XV), Dec. 15, 1960, which lays down criteria for a non-self-governing territory. As to the separate issue of sovereignty, however, there appears no room for doubt that it is vested in France. Cf. G.A. Res. 66(1), Dec. 14, 1946 on Transmission of Information under Art. 73(e) of the Charter, and the reservations thereto on the grounds that some of the listed territories on which information had been forwarded could not be considered areas in respect of which the administering authorities exercised sovereignty. Panamanian reservation in respect of the Canal Zone, UN Doc. A/C.4/61; Guatemalan reservation in respect of sovereignty over Belize (British Honduras), UN Doc. A/C.4/74; and joint British- Argentine statement as to sovereignty over the Falkland Islands, UN Doc. A/C.4/87.

15 See Note of Feb. 7, 1973, of the French Ambassador in Canberra, to the Australian Prime Minister and Foreign Minister, Annex No. 10, Application 55.

16 Cf. the Memorandum of the Legal Adviser of the Department of State of August 10, 1937, to the Agent of the United States in Relation to the Trail Smelter Arbitration. “It is a fundamental principle of the law of nations that a sovereign state is supreme within its own territorial domain and its nationals are entitled to use and enjoy their territory and property without interference from an outside source.” Cited in 5 Whiteman, Digest of Int. L. 183 (1965).

17 E.g. in the case of radio interference with telecommunications in another state’s territory. See infra and the extraterritorial application of restrictive trade legislation.

18 For the use of the term “material damage” see supra note 11.

19 See Maurice Strong: “The essential theme of modern age . . . is interdependence, the interdependence of all the elements which sustain . . . life on the planet, of man with those elements, of the natural physical system with man’s needs and aspirations and most of all man with man.” UN Doc. A/C.2/SR. 1466. Cf. further Ward and Dubos, Only One Earth (1972); Ehrlich, and Ehrlich, Population, Resources and the Environment (2nd ed. 1972)Google Scholar; Falk, This Endangered Planet 21 (1972)Google Scholar; Sprout, and Sprout, The Ecological Viewpoint and Others, in The Structure of the International Environment 569 at 576 (Black and Falk eds., 1972)Google Scholar.

20 See e.g., Schachter, Scientific Advances and International Law Making, 55 Calif. L. Rev. 423, 425 (1967)Google Scholar.

21 Cf. UN Doc. A/CONF.48/8 on Identification and Control of Pollutants of Broad International Significance. Compare also Contini, and Sand, Methods to Expedite Environmental Protection: International Eco-Standards, 66 AJIL 37, 56–57 (1972)Google Scholar; and Serwer, International Co-Operation for Pollution Control, in Law, Institutions and the Global Environment 178 (Hargrove ed., 1972)Google Scholar.

22 This term is to be understood here in a jurisdictional sense only, denoting those areas which are res communes omnium. As to terminology cf. also Kirgis who uses “res communis” synonymously with “shared environment.” Technological Challenge to the Shared Environment: United States Practice, 66 AJIL 290 (1972); Bleicher, who speak; of “shared resources,” An Overview of Environmental Regulation, 2 Ecology L. Quarterly 1, 51 (1972)Google Scholar; and Note, New Perspectives on International Environmental Law, 82 Yale L.J. 1659 (1973), for a distinction between “inclusive” (i.e., internationally shared) and “exclusive resources.” id. at 1663. Thus “internationally shared environment” here has no reference to shared resources in an ecological sense or to resources which, though within the sovereign control of a state, are considered to be of international importance and hence the subject of an international agreement aiming at reinforcing national conservation policies. Cf. e.g., the 1972 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 11 ILM 969 (1972).

23 E.g., in the form of maximum discharge or minimum operational standards.

24 An exception in this respect is the partial Test Ban Treaty of 1963 which lists among its goals “to put an end to the contamination of man’s environment by radioactive substances.” 14 UST 1313; TIAS No. 5433; 480 UNTS 43; 57 AJIL 1026 (1963); 2 ILM 883 (1963).

For an example of uniform standard setting on a regional basis, see the 1968 European Agreement on the Restriction of the Use of Certain Detergents in Washing and Cleaning Products, entered into force 18 Feb. 1971, 16 European Y.B. 335 (1968).

25 Cf. e.g., G.A. Res. 2849(XXVI) Dec. 20, 1971 on “Development and Environment,” GAOR, 26th Sess., SUPP. 29, 70; 11 ILM 422 (1972); and Principles 10, 11, 12, and 23 of the 1972 Declaration of the United Nations Conference on the Human Environment [henceforth: Stockholm Declaration] which call for special consideration of the situation of developing countries. Report of the Conference, UN Doc. A/CONF. 48/14, 5–7; 11 ILM 1416 (1972); Cf. also the Guiding Principles Concerning International Economic Aspects of Environmental Policies, adopted at the May 24-26 Ministerial Meeting of OECD: 11 ILM 1172–73 (1972); Industrial Pollution Control and International Trade, GATT Studies in International Trade No. 1 (1971); Ferguson, International Trade Implications of Pollution Control, 58 Cornell L. Rev. 368 (1973)Google Scholar; and International Problems, in Record of the OECD-Seminar on Problems of Environmental Economics 201 (1972) with papers by Majocchi, Klotz, d’Arge, Cumberland, and Scott.

Indeed, “any standard that finds immediate and nearly unanimous international support is likely to be meaningless.” Russell, and Landsberg, International Environmental Problems—A Taxonomy, cited in Proc. of the Joint Colloquium before the Senate Comm. of Commerce and the House Comm. on Science and Astronauts, 92nd Cong., 1st Sess., 237 (1971)Google Scholar.

26 For a prime example of a bilateral agreement on ecostandards, cf. the 1972 Great Lakes Water Quality Agreement, 11 ILM 694 (1972).

27 In the Namibia decision this territorial approach to liability for conduct affecting other states was expressly reiterated and extended insofar as it was held that physical control of the territory rather than sovereignty or legitimacy of title constituted the basis of liability for extraterritorial effects of state activity. [1971] ICJ Rep. 12, 54, para. 118. Cf. also Principle 21 of the Stockholm Declaration supra note 25, at 7.

28 Cf. in particular Principles 1, 2, and 4 of the Stockholm Declaration ibid., 4; Visscher, de (Paul), La Protection de l’Atmosphere en Droit International 29. General Report submitted to the 7th Congress of the International Academy of Comparative Law (1966)Google Scholar; Dickstein, International Law and the Environment: Evolving Concepts, 26 Y.B. of World Affatrs 245, 250 (1972)Google Scholar; and Hondius, Environment and Human Rights, 41 Y.B. of the A.A.A. 68 (1971)Google Scholar.

29 A right to environmental integrity undoubtedly flows from the general principle of territorial sovereignty. See e.g., the discussion within the Preparatory Committee on the Stockholm Declaration, UN Doc. A/CONF.48/PC.12, Annex II, para. 60. A warning of too close an identification of the concepts of sovereignty and of environment “the contents and limits of which [are] not clearly established,” is, however, appropriate. Ibid. para. 64. Cf. also Beesley, Rights and Responsibilities of Arctic Coastal States: The Canadian View, 3 Maritime L. and Commerce 8 (1971)Google Scholar; Gotlieb, and Dalfen, National Jurisdiction and International Responsibility: New Canadian Approaches to International Law, 67 AJIL 229, 240–47 (1973)Google Scholar.

30 Cf. Rubin, Post-Stockholm: Influencing National Environmental Law and Practice through International Law and Policy, ASTL Proc, 66 AJIL (No. 4) 1, 11 (1972)Google Scholar.

31 4 A.D , 104 (1927–28); 22 AJIL 875 (1928).

32 For the essentially relative character of domestic jurisdiction, see the Nationality Decrees case, [1927] PCIJ ser. B, No. 4, at 24.

33 See Lester, River Pollution in International Law, 57 AJIL 828 (1963)Google Scholar.

34 Comment on Art. X of the “Helsinki Rules” on the Uses of Waters of International Rivers, Report of the Fifty-Second Conference of the I.L.A., Helsinki, 447, 497 (1966).

35 [1949] ICJ Rep. 4, 22.

States thus incur responsibility for acts of private individuals causing damage in the territory of another state. For this reason the term “state activity” as used in the following pages includes any activity of private individuals which under the Court’s formula can be attributed to the respondent state.

36 See Lester, supra note 33, at 833.

37 For a rather negative view cf. the Hague Court of Arbitration in the North Atlantic Coast Fisheries case, in Scott, The Hague Court Reports 160 (1916), and the PCIJ in the Wimbledon case [1923] PCIJ ser. A, No. 1, at 24.

38 “. . . [T]he grave consequences attaching to the construction of an international obligation as a servitude require that it should be resorted to only when there is no doubt that the parties intended it to be a permanent relationship independent of who is the sovereign of the entitled or encumbered territory.” Lauterpacht, Private Law Sources and Analogies of International Law 122–23 (1927). Cf. also Lester, supra note 33, at 834–35.

39 Cf. in particular Thalmann, Grundprinzipien des Modernen Nachbarrechts (1951); Andrassy, Les relations de voisinage, 79 RDC 76 (1951)Google Scholar; Heydte, von der Das Prinzip der guten Nachbarschaft im Völkerrecht, in Völkerrecht Und Rechtliches Weltbild, Festschrift f. Alfred Verdross 133 (v.d. Heydte, Seidl-Hohenveldern, Verosta, Zemanek eds., 1960)Google Scholar.

40 Lauterpacht, The Function of Law in the Intebnational Community 298 (1933)Google Scholar.

41 For a discussion of the theory on the relativity of rights, see Gutteridge, Abuse of Rights, 5 Camb. L J . 22 (1933–35)Google Scholar.

42 This is certainly the ratio decidendi of the PCIJ in the International Commission of the River Oder case: [19291 ser. A, No. 23, at 27. “[A] community of interest in a navigable river [that traverses or separates the territory of more than one state] becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others.”

43 Cf. Goldie, Development of an International Environmental Law—An Appraisal, in Law, Institutions and the Global Environment 104, 129 (Hargrove ed., 1972)Google Scholar; Berber, Die Rechtsquellen Des Internationalen Wasserrechts 155 (1955)Google Scholar; Utton, International Environmental Law and Consultation Mechanisms, 12 Columbia J. Trasnat’l L. 56, 58–59 (1973)Google Scholar; and Randelzhofer, and Simma, Das Kemkraftwerk an der Grenze, in Festschrift F. Friedrich Berber 389, 407 (Blumenwltz and Randelzhofer eds., 1973)Google Scholar.

44 For a detailed discussion see e.g., Politis, Le Probème des Limitations de la Souveraineté et le ThSorie de l’Ahus des Droits, 6 Rdc 5, 77 (1925)Google Scholar; Lauterpacht, supra note 40, at 286; Schwarzenberger, Uses and Abuses of the “Abuse of Rights” in International Law, 42 Transactions of the Grottos Society 147 (1951)Google Scholar; and Cheng, General Principles of Law as Applied by International Courts and Tribunals 121 (1953)Google Scholar.

45 See e.g., the discussion of the Rapporteur’s Second Report on State Responsibility, in particular Ago himself, [1970] 1 ILC Y.B. 178, para. 25; and 226, para. 31; Tammes, ibid. 185, para. 40; Singh, ibid. 212, para. 29; Bartos, ibid. 214, para. 48; Rosenne, ibid. 220, para. 60.

46 Tammes, supra note 45.

For a similar view as to the function of the concept of abuse of rights, cf. Garcia- Amador as the Commission’s first Rapporteur on the topic. Fifth Report on State Responsibility, UN Doc. A/CN.4/125, [1960] 2 ILC Y.B. 41, 57–58.

47 Second Report, UN Doc. A/CN.4/233, [1970] 2 ILC Y.B. 177; and Third Report, UN Doc. A/CN.4/246 and Add. 1–3, [1971] 2 ILC Y.B., part I, 199.

48 For a distinction between primary, material, or substantive rules of international law, and secondary or functional rules (those of state responsibility proper “intended to promote the practical realization of the substance of international law contained in the primary rules”), see Tammes, [1969] 1 ILC Y.B. 109, para. 5.

49 Third Report, supra note 47, at 221, para. 68; cf. also Ago, Le Délit International, 68 RDC 419, 443–44 (1939).

50 Third Report, supra note 49.

51 The Uses of “General Principles” in the Development of International Law, 57 AJIL 279, 287 (1963).

52 Id. at 289.

53 Originally draft Art. 2 on State Responsibility, Third Report, supra note 47, at 223–24, para. 75.

54 Ago stresses this equation as an absolute principle without exception. Third Report, supra note 47, at 220, para. 65. This appears, however, objectionable. In the Barcelona Traction case the majority judgment carefully emphasized that a state’s failure to comply with an international obligation erga omnes could not necessarily be said to amount to an infringement of another state’s subjective right to, as against a general legal interest in, the former state’s compliance: [1970] ICJ Rep. 3, 32–33, paras. 33–35; and 47, para. 91.

55 Conditions for the existence of an internationally wrongful act.

An internationally wrongful act exists where:

(a) Conduct consisting of an action or omission is imputed to a State under international law; and

(b) Such conduct, in itself or as a direct or indirect cause of an external event, constitutes a failure to carry out an international obligation of a State.

Second Report, supra note 47, at 195, para. 551. This article was slightly redrafted in the Third Report and has now been adopted by the Commission with additional minor changes as draft Article 3, “Elements of an internationally wrongful act of a State.” See Report of the ILC on the Work of its 25th Sess. GAOR, 28th Sess., SUPP. No. 10, at 17.

56 Third Report, supra note 47, at 223, para. 74.

57 Id.

58 Supra note 45, at 220, para. 62.

59 [1970] ICJ Rep. 3, 32, para. 35.

60 “Responsibility is the necessary corollary of a right.” Id. at para. 36.

61 Cf. Rosenne, supra note 58; Reuter, supra note 45, at 188, para. 13; and Eagleton: “Responsibility is simply the principle which establishes an obligation to make good any violation of international law producing injury, committed by the respondent State.” The Responsibility of States in International Law 22 (1928).

62 Reuter, supra note 61.

63 Id. For a critical view see also Singh, supra note 45, at 211, para. 19; Thiam, ibid. 213, para. 33; Bartoš, ibid. 215, para. 50; and Kearney, ibid. 218, para. 43. In spite of some textual changes in the draft article in question by the Special Rapporteur in his Third Report, continued criticism in this respect was voiced in the Commission. See the discussion of the Third Report, [1973] 2 ELC Y.B. Sette-Câmara, 22, paras. 40–43; Reuter, 23, paras. 50–51.

64 Cf. e.g., Bartoš, supra note 63.

65 Supra note 46.

66 3 UN R.I.A.A. 1905. Cf. also the very detailed study of the Trail Smelter case by Rubin, Pollution by Analogy: The Trail Smelter Arbitration, 50 Oregon L. Rev. 259 (1971)Google Scholar; and Read, The Trail Smelter Dispute, 1 Canadian Y.B. Int’l L. 213 (1963)Google Scholar.

67 Art. IV of the compromis, supra note 66, at 1908.

68 Indeed, Rubin argues that “it transformed itself wholly from the creature of a rather restrictive compromis to an international court.” Supra note 66, at 264.

69 Award, supra note 66, at 1965.

70 Question 2 of Art. III of the compromis, ibid. 1908.

71 Award, ibid. 1966.

72 See the tribunal’s recourse to the travaux preparatoires. Id. at 1950 and 1960.

78 “ . . the damage herein referred to and its extent being such as would be recoverable under the decisions of the courts of the United States in suits between private individuals” (id. at 1966) should actually read “damages” herein. . . .

74 Id. at 1932.

75 Id. at 1933.

76 Id. at 1932.

77 Id. at 1960.

78 Rubin, supra note 66, at 265.

79 Id.

80 Award, supra note 66, at 1966.

81 Id.

82 Ibid. 1908.

83 Award, ibid. 1950.

84 The tribunal stated also: “This text [of Art. IV] does not bind the Tribunal to apply national law and practice to the exclusion of international law and practice.” Id. at 1950. The e contraio conclusion is that with regard to “cognate questions” international law and practice cannot exclude national law and practice.

85 Id. at 1932.

86 12 UN R.I.A.A. 281.

87 There are, of course, some United States quasi-international decisions relating to transboundary air and water pollution, such as Missouri v. Illinois 180 U.S. 208 (1901), Georgia v. Tennessee Copper Co. 206 U.S. 230 (1907), New Jersey v. New York 283 U.S. 473 (1931) etc. Although the Trail Smelter tribunal itself found it reasonable to follow these cases by analogy, United States Supreme Court decisions in interstate pollution cases do not appear to allow unambiguous inferences as to the international legal basis of such decisions. Cf. Rubin, supra note 66, at 269, and as to disputes over water resources in general, Bains, The Diversion of International Rivers, 1 Indian J. Int. L. 38, 45 (1960)Google Scholar.

88 The tribunal was simply called upon to decide whether the effects of certain projected works for the utilization of waters of an international river would be such as to amount to a violation of treaty provisions imposing various restrictions on the use of these waters. See the tribunal’s arguments, supra note 86, at 302–03.

89 Writers seem generally agreed that the reparation of a moral injury to the state usually understood as “satisfaction,” “Genugtuung,” or “soddisfazione,” is different from the reparation of a material injury insofar as it includes at least an element of censure and thus also fulfils a penal function. For this equation of reparation of moral injury with satisfaction, see e.g., Strupp, Das völkerrechiliche Deliht, in 3 Handbuch des Völkebbechts 213 (Stier-Somlo ed. 1920)Google Scholar; Lais, supra note 11, at 113; Visscher, De La responsabilité des Etats, 2 Bibliotheca Vissebiana 89, 119 (1924)Google Scholar; Reitzeh, La réparation Comme Conséquence De L’acte Hxicite en droit International 19–20 (1938)Google Scholar; 1 Anztlotti, Corso di dnurro intebnazionale 425–26 (1955); and Garcia-Amador, Sixth Report on State Responsibility, UN Doc. A/CN.4/134 and Add. 1, 1961, 3 ILC Y.B. 1, 2.

The penal element in satisfaction has been particularly stressed by Budeb, Die Lehbe Vom Völkebrechtlichen Schadenebsatz 199 (1932); 3 Dahm, Völkerrecht 241–42 (1961); and Garcia-Amador, supra at 19, para. 76. Cf. also Eagleton, Measures of Damages in International Law, 39 Yale L. J. 52, 65–66 (1929–30)Google Scholar; and Kelsen, Unrecht und Unrechtsfolge im Völkerrecht, 12 Zettschbift F. öff. Recht 481, 559 (1932)Google Scholar. For recognition of the penal element of satisfaction in arbitration cases, see infra note 96.

While it is certainly true that international tribunals have mostly disallowed claims for “punitive damages” on the ground of lack of jurisdiction due to the nonjusticiable issue of punitive or exemplary damages, Cheng’s conclusion that a fortiori they do not fall within the legal notion of responsibility (supra note 44, at 235) obviously does not reflect the fact that moral damage to the state is extremely difficult to assess in any given case and that the line between reparation sensu stricto and satisfaction is fluid.

90 Contrary Ago, who believes that the distinction between compensation aspects and punitive aspects of the legal relationship resulting from an internationally wrongful act is only of theoretical interest, Third Report, supra note 47, at 207, para. 34.

91 Claim of the British Ship I’m Alone v. United States, Joint Final Report of the Commissioners, 29 AJIL 326, 331 (1935).

92 Indeed, the Commissioners addressed themselves to the question of the legitimate use of force as a ground of exculpation and found that the sinking of the vessel could not be justified under the terms of the 1924 Convention between the United States and Great Britain to Aid in the Prevention of Smuggling of Intoxicating Liquor into the United States, USTS No. 685.

93 Supra note 35, at 35.

94 Id. For a general discussion of the function of declaratory judgments as a reparation sui generis, see infra.

95 Not to be confused with Garcia-Amador’s categorization of simply unlawful (entailing civil liability) and punishable (entailing criminal liability) conduct. UN Doc. A/CN.4/96, [1956] 2 ILC Y.B. 219, para. 241. For the rejection of such a distinction, see Ago, Délit, supra note 49, at 529–30.

96 Various international judicial decisions as well as state practice confirm the view taken here that the award of a reparation for a moral injury to the state may be made only if the injury results from conduct which in itself is prohibited by a clear and specific rule of international law. Thus in the Manouba arbitration (France/Italy) arising from the capture and temporary seizure of a French mailsteamer during the Turco-Italian war of 1912, the Court found that, in the absence of contraband, the capture and detention of the neutral French vessel, subsequent to the legitimate exercise of the right of search by the Italian authorities, clearly constituted an illegality. The French claim for damages of one franc for the offense to the French flag was, however, rejected on the ground that “ . . . in case a Power has failed to fulfil its obligations . . . to another Power, the statement of this fact, especially in an arbitral award, constitutes already a severe penalty.” Wilson, The Hague Arbitration Cases 326, 345 (1915)Google Scholar; cf. also the similar decision involving The Carthage, ibid. 369–70. In the case concerning German Responsibility for Acts committed after 31 July 1914 and before Portugal entered the war, Portuguese claims for damages for violations of sovereignty and attacks on international law, based on the activity of German troops in Portuguese colonies, were classified as amounting to a proper sanction, but were rejected by the tribunal as falling outside its terms of reference: 2 UN R.I.A.A. 1035, 1076–77.

For state practice see in particular the Eichmann case, Whtteman, supra note 16, at 208; Dahm, supra note 89, at 242–46; and again 1 Whtteman, Damages in International Law 80–81, n. 186 (1937).

97 This liability determining interrelationship between proof of material damage and the lawful or unlawful character of the activity per se that causes extraterritorial environmental effects has been implicitly referred to in a recent satement by Judge Petrért. In discussing the provisional measures of protection in the Nuclear Tests case, he stated: “This indication of interim measures was apparently founded on the possible existence of a new general rule of international law prohibiting States from carrying out atmospheric nuclear tests causing the deposit of radio-active fall-out, however slight, on the territory of other States.” Diss. Op., Fisheries Jurisdiction case (United Kingdom v. Iceland), Order of July 12, 1973 [1973] ICJ Rep. 302, 310. Emphasis added.

98 North Sea Continental Shelf cases, [1969] ICJ Rep. 3, 44, para. 77.

99 Cf. e.g. Jennings, The United States Draft Treaty on the International Seabed Area —Basic Principles, 20 Int’l Comp. L. Q. 433, 437–40 (197)Google Scholar); and infra note 104.

100 Thus G.A. Res. 2996 (XXVII), Dec. 15, 1972 expressly commends Principles 21 and 22 of the Declaration as laying down the basic rules governing the international responsibility of states in regard to the environment. GAOR 27th Sess., SUPP. 30, at 42.

As to the legal status of the Declaration as a whole, see the fairly representative statement by the Australian delegate in the discussion of the Stockholm Declaration by the General Assembly’s Second Committee, “. . . it represented the first comprehensive international political consensus on environmental issues and, although it was not legally binding, it had been the subject of intensive negotiations and should thus be generally acceptable.” UN Doc. A/C.2/SR. 1468.

101 Supra note 25, at 7.

102 In the deliberations of the Preparatory Committee on the Stockholm Declaration there is no reference at all to the question of moral injury the victim state of a transnational pollution might suffer in the form of a violation of its sovereignty. For a comment on the Stockholm principles in general, see Sohn, The Stockholm Declaration on the Human Environment, 14 Hahvabd Int’l L.J. 423 (1973)Google Scholar.

103 To this effect cf. also the United States interpretation of Principle 21: UN Doc. A/CONF.48/14, 118. Apart from this general principle the text does not allow any further inferences. See the report on reservations and observations as to the draft preamble and the fundamental principles expressed by the members of the Inter- Governmental Working Group on the Stockholm Declaration. UN Doc. A/CONF.48/ PC.12, Ànnex II.

104 Cf. the Declaration of Paris of 1856 cited as an example by Jennings, supra note 99, at 457; G.A. Res. 1721(XVI), Dec. 20, 1961; and the Declaration of Legal Principles Governing Activities of States in the Exploration and Uses of Outer Space, G.A. Res. 1962 (XVIII), Dec. 13, 1963. Cf. in the latter context the discussion of the Report of the Legal Sub-Committee on Peaceful Uses of Outer Space. UN Doc. A/5549/ Add. 1 Annex; GAOR, 18th Sess., Annexes, item 28, 14.

105 For lists of such treaties see UN Doc. ST/LEG/SER.B/12 (1963); UN Doc. A/5409 (1964); and UN Doc. A/CN.4/274 (vol. I) 78–183 (1974).

106 Supra note 34.

107 Para. I, ibid. 496–97. Note in this context the formal acceptance by Argentina of the Helsinki rules as the basis of its international water policy. I.L.A., Report on its Fifty-Fourth Conference, The Hague, 922 (1970).

108 Art. IX, supra note 34, at 494.

109 See Arts. 2 and 4; Res. on Non-Maritime, International Waters, 49 Annuaire Institut Droit int. 381, 382–83 (1961, II)Google Scholar. Cf. also the Madrid Declaration of the Institut. Art. I; Art. II, paras. 2–3; International Regulations regarding the Use of Watercourses for Purposes other than Navigation, 24 Ann. Institut Droit Int. 365–67 (1911).

110 Nos. IV, para. 2; VIII, para. 1; and IX; cited in Legal Problems Relating to the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/274 (vol. II) 226, 229–30.

111 See Art. 5 of the Convention, OAS Official Records OEA/Ser. 1/IV.2 (English) CIJ-79, at 19.

112 See the 10th preambular paragraph of the European draft Convention of 12 May 1969, cited in UN Doc. A/CN.4/274 (vol. II) 242, 244. Note in this context that the 1974 draft European Convention for the Protection of International Watercourses against Pollution marks a distinct shift away from liability-orientation to pollution prevention and hence does not contain any express general liability clauses. Cf. in particular the draft Explanatory Report thereon. C.E.C.A. Doc. 3417 Addendum, 4 and 27–28.

113 See Art. IV, USTS No. 548.

114 See Art. 58, in particular para. 2(e), English text in UN Doc. ECE/WATER POLL./CONF./P. 8, Annex A, 1 (1981).

115 See Art. IV, paras. 3, 9, and 10 of the 1960 Indus Waters Treaty, 55 AJIL 796 (1961).

116 See e.g., Arts. 4 and 11 of the 1964 Agreement between Poland and the USSR concerning the Use of Water Resources in Frontier Waters, 552 UNTS 175.

117 Cf. also Res. 25, para. 2 of the Act of Asunción on the Use of International Rivers, cited in UN Doc. A/CN.4/274 (vol. I) 173, 179. Cf. further the recent settlement of the United States-Mexican dispute over the salinity of the Colorado River: 12 ILM 1105 (1973); 67 AJIL 376 (1974). The assumption by the United States of the entire financial burden resulting from the construction of a drainage ditch protecting in particular agricultural interests in the Mexicali Valley that hitherto have been seriously affected by the salinity of the drainage waters of some United States irrigation districts such as the Wellton-Mohawk District, has been referred to “in lieu of damages” for the very substantial economic damage suffered by Mexican farmers. News Conference by the President’s Special Representative for the Solution of the Salinity Problem with Mexico, 69 Dept. State Buix. 388, 389 (1973).

118 An example in point would be the boundary area of Windsor, Ontario and Detroit, Michigan.

119 See Sweden’s Case Study for the United Nations Conference on the Human Environment, Supporting Studies to Air Pollution across National Boundaries: The Impact on the Environment of Sulfur in the Air and Precipitation (1972); cf. also Rodke, Persson, and Akeson, An Investigation into Regional Transport of Soot and Sulfate Aerosols, 6 Atmospheric Environment 675 (1972)Google Scholar.

120 Note in this context the present OECD study project on “Long-Range Transport of Air Pollutants,” reference in UN Doc. ST/ECE/ENV/I 388 (1971).

121 Thus the apparent absence of any relevant state practice in Europe is somewhat surprising. Note, however, Res. (71) 5 on Air Pollution in Frontier Areas, adopted by the European Council of Ministers, 26 March 1971: 19 European Y.B. 263 (1971); and the European Declaration of Principles on Air Pollution, Res. (68) 4, in 16 ibid. 381 (1968).

122 See e.g. IJC, Docket No. 61, Pollution of the Atmosphere in the Detroit River Area; Docket No. 85 Air Pollution Reference.

123 Cf. supra note 113.

124 To this see also Jordan, Recent Developments in International Environmental Pollution Control, 15 McGill L.J. 279, 296 (1969)Google Scholar.

125 Another reason for the Mexican protest was the allegedly illegal pollution of the waters of the Rio Grande by the dumping of offal into the river. Note of April 6, 1961, in 6 Whtteman, Digest of Int’l L. 258 (1968).

126 For a discussion whether the principle of exhaustion of local remedies should apply in transnational pollution cases, cf. Bleicher, supra note 22, at 14–15. Compare the reassertion of the principle in the Canadian draft articles on a comprehensive marine pollution convention: Art. VII, para. 2(a), UN Doc. A/AC.138/SC.III/L.28.

127 Supra note 125.

128 Cf. also Art. 7 of the I.L.A. draft articles on Flood Control, which stipulates international liability only in the case of substantial (material) damage caused by transboundary flooding. I.L.A. Report of the Fifty-Fifth Conference, New York, xvii (1972).

129 Note of July 29, 1959 by U.S. Ambassador Hill to the Mexican Minister of Foreign Relations, in Whiteman, supra note 125, at 261.

130 Id. at 262.

131 Letter to the Mayor of the City of Douglas, May 12, 1955. Ibid. 263.

132 A similar problem apparently presents itself in the context of direct broadcasting, in particular via satellite, where the transmissions are beamed from the territory of one state to that of another. In the absence of explicit prior consent or generally agreed international programming standards, however, the legality of the activity per se appears doubtful. For this reason it would seem that the legal problems arising from such transmissions are not analogous to the ones which are the object of this inquiry. Note in this context G.A. Res. 3182 (XXVIII) Feb. 12, 1974. For the discussion of the legal problems involved in direct satellite broadcasting, cf. UN Doc. A/AC.105/ 117, 9.

133 International Telecommunications Convention (Montreux 1965), Preamble, para. 1. 18 UST 575, TIAS No. 6267. The right to control domestic transmissions obviously entails the right to object to external transmissions to the extent they affect a state’s territory, subject only to considerations regarding the need of freedom of information and expression.

134 See Art. 48, para. 1 of the Convention. For a definition of “harmful interference” cf. Annex 2, No. 414 of the Convention. For an advocacy of state responsibility for “recognizable harmful effects” in general in the state where the transmission is capable of being received, see Smith, International Telecommunications Control 187 (1989)Google Scholar.

135 Cf. Bourne: “What are you talking about when you are talking about pollution? What is pollution? How would you define it if you are going to remove the concept of damage from it,” in The Trail Smelter Arbitration: Oral Proceedings, 50 Oregon L. Rev. 283, 291 (1971); and basically Scott and Bramsen, Draft Guiding Principles Concerning Transfrontier Pollution, in Problems of Transfrontier Pollution (record of a 1972 OECD seminar) 299, 301–02 (1974).

136 Cf. in this context the statement by the Pakistani delegate regarding Art. 2 of the Draft Articles on the Law of International Rivers, jointly proposed by Iraq and Pakistan, according to which only grave pollution damage to the territory of another state amounts to a violation of that state’s sovereignty. Asian-African Legal Consultative Committee, Report of the Eleventh Session, Accra, 229 (1970). See further the narrow interpretation of what state activity could be considered to amount to a violation of sovereignty of another state in the Savakar case. 11 UN R.I.A.A. 243, 253–54.

137 Garcia-Amador in an affirmative sense as to unlawful conduct per se, Sixth Report on State Responsibility, supra note 89 at 5, para. 5. Note, however, that in the Sanchez case, the Spanish-Venezuelan Claims Commission rejected a claim as unfounded and inadmissible, and apart from the plaintiff’s failure to prove injury, based its decision on the impossibility “to fix the terms concretely in order to make it [the responsibility] effective.” Id. at 14–15, para. 57, citing Ralston, Venezuelan Arbitrations 938 (1903)Google Scholar.

138 Garcia-Amador, supra note 89, at 16, para. 61. For the role of declaratory judgments as proper “sanctions,” cf. supra note 96.

139 Supra note 89, at 15, para. 58.

140 [1925] PCIJ ser. A, No. 5.

141 Id. at 51.

142 Supra note 139.

143 Danzig Legislative Decrees, [1935] PCIJ ser. A/B, No. 65, at 41.

144 Id. at 49.

145 Cf. supra note 70.

146 Supra note 66, at 1966.

147 Interpretation of Judgments No. 7 and 8 (The Chorzow Factory), [1927] PCIJ ser. A, No. 13, at 20.

148 I.e. the duty to restrict the operation of the smelter so as to prevent “any damage from fumes in the State of Washington.” Supra note 146.

149 See supra note 66, at 1920–33.

150 Garcia-Amador, supra note 89, at 15, para. 58.

151 (Merits), [1960] ICJ Rep. 6, 37.

152 Thus Lester’s qualified rejection of the use of declaratory judgments in the above sense in cases of pollution of international rivers reflects a failure to recognize the basic precondition for the passing of such a judgment. “. . . in the area of the economic use of rivers the need for reasonable compromise is greater than purely formal definitions of legal rights. Therefore . . . serious injury should . . . be shown before an international claim be recognized.” Supra note 33, at 851–52.

153 See the German Interests case, [1926] PCIJ ser. A, No. 7, 18.

154 See 2 Guggenheim, Thatté de Droit International Public 164–65 (1954): “Nous ne sommes pourtant pas certain que des jugments abstraits soient conformes à la fonction judiciaire de la Cour. En effet, dans tels cas, le tribunal ne connait pas tous les éléments de la cause; le jugement ne saurait done offrir la garantie que tous les possibilités d’interpretation qui se présentent en pratique ont été prises en considération.” Contrary Borchard, Declaratory Judgments in International Law, 29 AJIL 488, 492 (1935)CrossRefGoogle Scholar, who advocates the use of such judgments to “enlarge the scope of legal control and proportionately narrow the area of political action.”

For a discussion of the limitations on the exercise of the judicial function by the ICJ, cf. the Northern Cameroons case, [1963] ICJ Rep. 3, 33–34.

155 As to the strict requirements of evidence concerning prospective damage in general, cf, Eagleton, supra note 89, at 75; and 3 Whiteman, Damages in International Law 1837 (1943)Google Scholar.

156 Id., cf. also Ralston, The Law and Procedure of International Tribunals 241 (1926)Google Scholar.

157 “Attribution” has found preference over “imputation” in the ILC, the latter term being considered too ambiguous. Cf. Ago, Third Report, supra note 47, at 214, para. 50.

158 Supra note 11.

159 For a notion of injury in this sense, exceeding the narrow economic damage concept adopted by the Trail Smelter tribunal, cf. e.g., the Mexican claim in the Peyton Packing Co. and the Casuco Company case, supra note 125. Cf. also Rubin, supra note 66, at 277.

160 Cf. the Australian allegation of “mental stress and anxiety” among its population as a result of French nuclear testing. Nuclear Tests case, Application 26, para. 47.

161 For if a state has a legitimate “interest independent of and behind its citizens in all the earth and air within its domain” and it has “the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air” (thus Justice Holmes in Georgia v. Tennessee 206 U.S. 237 (1907))—this passage cited also by the Trail Smelter tribunal, supra note 66, at 1965)—it is a reasonable conclusion that it has such an interest also in the psychological well-being of its citizens. For the parens patriae concept, cf. also Garton, The State Versus Extraterritorial Pollution—States’ “Environmental Rights” under Federal Common Law, 2 Ecology L. Q. 313 (1972)Google Scholar.

162 Cf. generally Thalmann, supra note 39, at 157–58; and the memorandum of the Swiss Federal Political Department concerning the question whether the mere erection of a construction by a state in its own territory, but in the vicinity of its international border, might provide a basis for a claim on the part of the neighboring state on the grounds of a reduced aesthetic value to that latter state of its own contiguous area. 14 Ann. Suisse 158 (1957).