International Liability of States for Marine Pollution*

Günther Handl

doi:10.1017/S0069005800002435

¹ Principle 22 of the Stockholm Declaration, in Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14 and Corr. 1 (1972); text in 11 Int’l Leg. Mat. 1416 (1972).

² See, e.g., Art. 14 of the Draft Convention for the Protection and Development of the Marine and Coastal Environment of the Wider Caribbean Region, text in 8 Environmental Policy & L. 100 (1982); Art. 15 of the Convention for Co-Operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, text in 20 Int’l Leg. Mat. 746 (1981); and for one of the earliest, Art. 10 of the 1972 London Convention on the Dumping of Wastes at Sea, text in 11 Int’l Leg. Mat, 1291 (1972).

³ See footnote to Art. 8(f) of the Convention on Long-Range Transboundary Air Pollution, U.N. Doc. ECE/HLM.1/R.1 (1979), text in 18 Int’l Leg. Mat. 1442 (1979).

⁴ See, e.g., Principle 12, para. 2, of the Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, U.N. Doc. UNEP/IG.7/3, 6 (1977), text in 17 Int’l Leg. Mat. 1091 (1978) ; Resolution 26, para. 1(f), adopted at the XXI Conference of the Inter-American Bar Assoc., held in San Juan, P.R., Aug. 25–31, 1979, in 12 Lawyer of the Americas 145–46 (1980); and European Council of Environmental Law, Project for a Resolution on the Improvement of Compensation of Victims of Oil Spills, Rev. 2 (1982).

⁵ Thus pertinent decisions by courts and tribunals have at best been only marginally instructive. But note, e.g., Judge Forster, Diss. Op., in Nuclear Tests case (Australia v. France), Interim Protection, Order of June 22, [1973] I.C.J. Rep. 99, at 114.

⁶ Of course, the International Law Commission’s work on state responsibility and on international liability for injurious consequences arising from acts not prohibited by international law sets a strong counterpoint to the otherwise largely negative international practice. Its work is being referred to throughout this article.

⁷ Kiss, , “L’état du droit de l’environnement en 1981: Problèmes et solutions,” 108 J. Droit Intern. 499, at 518 (1981).Google Scholar

⁸ “Liability” here is to be understood to imply an international obligation to redress the transnational environmental damage, in particular to pay compensation. It thus encompasses both the notion of liability as a secondary rule of state responsibility, i.e., the consequence of a breach of an international obligation and the notion of liability as a primary obligation contingent upon the occurrence of certain transnational damage (the notion of guarantee proper). As to the notion of liability as a “secondary rule of state responsibility,” see, e.g., Report of the ILC on the Work of Its Twenty-seventh Session, U.N. Doc. A/10010 16, para. 35 (1975). As to liability in the sense of a primary obligation, see Quentin-Baxter, , Preliminary Report on International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law, U.N. Doc. A/CN.4/334, 6–7, para. 12 (1980).Google Scholar

⁹ For details, see infra notes 79–83.

¹⁰ I.e., the state in whose territory or under whose jurisdiction the injurious activity is carried on. For further discussion of the notion, see text infra at n. 100.

¹¹ To this effect, see also Dupuy, and Smets, , “Compensation for Damage Due to Transfrontier Pollution,” in OECD, Compensation for Pollution Damage 181, at 201 (1981)Google Scholar; and cf. Gotlieb, , “The Impact of Technology on the Development of Contemporary International Law,” 170 Recueil des Cours 115, at 217 (1981).Google Scholar

¹² This is true despite periodically occurring anachronistic attempts at reinstituting social decision-making through more or less unbridled market forces. For one such recent attempt, see statement of the U.S. delegation to the Nairobi Conference on the Human Environment: “U.S. Tells Ecology Parley to Trust Free Enterprise,” N.Y. Times, May 12, 1982, at 8, col. 1.

¹³ For details, see text infra at nn. 59–60.

¹⁴ Supra note 7, at 522.

¹⁵ Ibid.

¹⁶ Only knowledge of the certainty of having to bear the costs of transnational pollution will force states into making a proper cost-benefit analysis of transnationally polluting national activities and thereby will ensure that overall marginal activities will be terminated rather than carried on at the cost of the international community at large.

¹⁷ As to the “Polluter-Pays Principle,” see Recomm. of the Council on the Implementation of the Polluter-Pays Principle, OECD Doc. C (74) 223, text in 14 Int’l Leg. Mat. 234 (1975) ; and its adoption by the EEC Council Recommendation on the Application of the Polluter-Pays Principle, ibid., 138. As to its possible application internationally, see, e.g., “Report by the Secretariat, Possible Role of International Financial Transfers in Preventing and Controlling Transfrontier Pollution,” in OECD, Transfrontier Pollution and the Role of States 36, at 39 (1981); see further Smets, , “A propos d’un éventuel principe pollueur-payeur en matière de pollution transfrontière,” 9 Env. L. & Policy 40 (1982).CrossRef Google Scholar

¹⁸ Brownlie, , “Causes of Action in the Law of Nations,” 50 Brit. Y.B. Int’l L. 13, at 40 (1979)Google Scholar: “A major role of State responsibility and the law of claims is psychological and moral: that of putting a hard edge on legal rights and duties.”

¹⁹ In other words, the potential realm of an actio popularis would be correspondingly reduced. For a pertinent overview of the feasibility of an actio popularis for the protection of the environment beyond national jurisdiction, see, e.g., Picone, , “Obblighi reciproci ed obblighi erga omnes deglistati nelcampo della protezione internazionale dell’ambiente marino dall’inguinamento,” in Diritto Internazionale e Protezione dell’Ambiente Macino 87–93 (Stargce, V., ed., 1984).Google Scholar

²⁰ For some positive thoughts on that, see instead Lang, , “Haftung und Verantwortlichkeit im internationnalen Umweltschutz,” in lus Humanitatis (Festschrift f. A. Verdross) 517, at 522–23 (Miehsler, , Mock, , Simma, , & Tammelo, , eds., 1980).Google Scholar

²¹ For an extensive discussion, see Handl, , “State Liability for Accidental Transnational Environmental Damage,” 74 Am. J. Int’l L. 525, at 560–64 (1980).CrossRef Google Scholar

²² The notion of intentional or non-accidental pollution as used in this article refers to pollution that is the result of an activity that is either known to cause or assumed to cause with substantial certainty some detrimental effects. The typical situation will be the case where state authorities know or must be presumed to know of on-going transnational pollution and do nothing to stop it.

²³ Such as, in particular, specific discharge standards. For further discussion, see, e.g., Contini, & Sand, , “Methods to Expedite Environmental Protection: International Ecostandards,” 66 Am. J. Int’l L. 37 (1972).CrossRef Google Scholar

²⁴ Thus to the extent that utilizations of an internationally shared environment are in general interdependent, it follows that in their use of such environment states are under an obligation to take into account the interests of potentially affected other states and to seek a mutual accommodation on the basis of equality: See, e.g., Lake Lanoux case, 24 I.L.R. 101, at 139.

²⁵ As to its affirmation in international judicial or arbitral decisions, see ibid.; the Trail Smelter case, 3 U.N.R.I.A.A. 1911, at 1965; and the Corfu Channel case, [1949] I.C.J. Rep. 4, at 22.

²⁶ U.N. Doc. A/CONF. 13/L. 53 (1958).

²⁷ Stockholm Declaration, supra note 1.

²³ See, e.g., Art. 192-96 of the Draft Convention (Informal Text) U.N. Doc. A/CONF.62/WP.10/Rev. 3, text in 19 Int’l Leg. Mat. 1129 (1980).

²⁹ For a discussion of this threshold concept of “significant effects,” see, e.g., Handl, , “Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited,” 13 Canadian Yearbook of International Law 156, at 173–75 (1975).Google Scholar

³⁰ A case in point is the international controversy over atmospheric nuclear tests carried out by France in the South Pacific area. Thus France denied categorically that any foreign populations or the environment beyond French overseas territories were at risk as a result of its tests; see, e.g., letter dated Feb. 7, 1973, from the French ambassador in Canberra to the Australian Prime Minister, Annex 10 to the Australian Application, in Nuclear Tests cases, I.C.J. Pleadings (vol. I), 28, at 29.

³¹ An international conflict situation of this sort seems to have arisen between Great Britain and Ireland over the dumping by Britain of low-level radioactive waste into the Irish Sea. For some background information, see Shinn, R., The International Politics of Marine Pollution Control 30 (1974)Google Scholar; and BNA, Int’l Env. Rep., Current Report 552 (1983).

³² Note in this context the adoption at the Feb. 1983 meeting of the signatories of the 1972 London Dumping Convention, supra note 2, of a non-binding resolution calling for the suspension of ocean dumping of any radioactive wastes: ibid., 113. However, state practice remains divided as regards ocean disposal of low-level nuclear wastes.

³³ Schwarzenberger, , “Trends in the Law of the Sea: From Leviathan to Jaws?,” 33 Yb. World Affairs 328, at 359 (1979).Google Scholar

³⁴ Quentin-Baxter, , Second Report on International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law, U.N. Doc. A/CN.4/346/Add. 1, 12, para. 59 (1981).Google Scholar

³⁵ To this effect see also Dupuy, , “International Liability for Transfrontier Pollution,” in Trends in Environmental Policy and Law, (IUCN Environmental Policy and Law Paper No. 15) 363, at 366 (1980),Google Scholar and Kwiatkowska-Czechowska, , “States’ Responsibility for Pollution Damage Resulting from the Exploration and Exploitation of Seabed Mineral Resources,” 10 Polish Yb. Int’l L. 157, at 165–66 (1980).Google Scholar

Exceptionally, with the addition of technical annexes and the proscription of certain classes of polluting activities, some conventions do provide clear normative guidance, at least as to some primary rules of state responsibility.

³⁶ For further details on this multiple-factor, balancing of interests test, see, e.g., Handl, supra note 29, at 187–92.

³⁷ For a discussion, see Handl, , “Transnational Pollution and the Problem of Territorial Sovereignty,” 69 Am. J. Int’l L. 50, at 58–72 (1975).CrossRef Google Scholar

³⁸ As to the importance of an internationally agreed upon fact-finding machinery, see, e.g., intervention of Professor Cohen in debate on “The Environment: International Rights and Duties,” [1980] Am. Soc. Int’l L. Proc. 233, at 248 ; Bilder, , “Settlement of Disputes in the Field of International Law of the Environment,” 144 Recueil des Cours 139, at 222 (1975).Google Scholar As to a recent affirmation of the cardinal importance of fact-finding in such situations, see Quentin-Baxter, , Third Report on International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law, U.N. Doc. A/CN.4/360, 29–30 (1982).Google Scholar

³⁹ See, e.g., Utton, , “International Water Quality Law,” 13 Natural Res. J. 282, at 299 (1973)Google Scholar; and generally, Bilder, supra note 38, at 227–30; and Lang, supra note 20, at 531.

⁴⁰ Note in this context the “regional seas” approach sponsored by UNEP, the latest example of which is the Convention for the Protection and Development of the Marine and Coastal Environment of the Wider Caribbean Region, supra note 2.

⁴¹ Cf. in particular the work by the OECD, and the standard-setting by the European Economic Community, and in particular the IMO.

⁴² As to the existence of an established body of customary international law regarding prevention of transnational pollution, see generally Handl, , “The Environment: International Rights and Responsibilities,” [1980] Am. Soc. Int’l L. Proc. 223, at 224–28.Google Scholar

⁴³ That prevention is better than cure, particularly in the area of environmental protection, is fairly obvious. See, e.g., para. 10 of the Nairobi Declaration on the State of Worldwide Environment, U.N. Doc. UNEP/GC.10/INF.5 (1982), text in 21 Int’l Leg. Mat. 676 (1982). Differences of opinion exist as to how best to promote prevention.

For reservations as to the desirability of a general shift towards conduct-related environmental standards, see, e.g., Cummins, et al., “Oil Tanker Pollution Control: Design Criteria vs. Effective Liability Assessment,” 7 J. Maritime L. and Comm. 169, at 171 (1975–76).Google Scholar The authors point to the possibility that in certain circumstances preventive guidelines, in particular technology-oriented standards, may not be the least expensive pollution prevention strategy available. While this point is well taken, the suggested alternative, namely deterrence exclusively through an effective system of liability, as a general proposition, is an unpersuasive strategy in light of the notorious difficulties in internalizing the real costs of the injurious activity in any situation of pollution. Obviously, only a mix of preventive controls and deterrence measures is most likely to produce the best results in terms of minimizing the costs of pollution prevention and of pollution damage.

⁴⁴ “States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction” : supra note 4.

⁴⁵ For a clear repudiation of such a view based on Principle 21, see, e.g., de Arechaga, , “International Law in the Past Third of a Century,” 159 Recueil des Cours 1, at 272 (1978)Google Scholar; and Dupuy, , “International Liability of States for Damage Caused by Transfrontier Pollution,” in OECD, Legal Aspects of Transfrontier Pollution 345, at 367 (1977).Google Scholar

⁴⁶ For a detailed review, see Handl, supra note 21, at 535–40; and note ALI, Restatement, Foreign Relations Law of the United States (Revised), Tent. Draft No. 4, ss. 601 (1) and 611(2) (1983).

⁴⁷ Note in particular the ILC’s commentary to Art. 23 (Breach of an international obligation to prevent a given event) of the Draft Articles on State Responsibility, [1978] YB ILC (vol. II, pt. 2) 82–83, para. 6: “In assuming obligations of this kind, States are not underwriting some kind of insurance cover for contracting States against the occurrence, whatever the conditions, of events of the kind contemplated. . . . Only when the event has occurred because the State has failed to prevent it by its conduct, and when the State is shown to have been capable of preventing it by different conduct, can the result required by the obligation be said to have been achieved. . . . The State can obviously be required only to act in such a way that the possibility of the event is obstructed, i.e., to frustrate its occurrence as far as lies within its power.” And see Ago, Seventh Report on State Responsibility, U.N. Doc. A/CN.4/307, 4, para. 3 (1978): “[N]either the occurrence of the event without there having been any negligence on the part of the State organs nor such negligence without the occurrence of any event in itself constitutes a breach of the international obligation.”

Despite these clear references to liability as the consequence of a violation of a contextually determined due diligence standard, one commentator recently arrived at the stunning conclusion that Art. 23 reflects a standard of liability based on pure causality: Zemanek, , “Schuld- und Erfolgshaftung im Entwurf der Völkerechtskommission über Staatenverantwortlichleit,” in Festschrift für Rudolf Bindschedler 315, at 331 (Diez, E. et al., eds., 1980).Google Scholar

⁴⁸ For such a view of international practice, see in particular, Goldie, , “Development of an International Environmental Law — An Appraisal,” in Law, Institutions and the Global Environment 104, at 131 (Hargrove, L., ed., 1972)Google Scholar; Schneider, J., World Public Order of the Environment: Towards an International Ecological Law and Organization 163–67 (1979)Google Scholar; Stein, , “Legal Problems and Institutional Aspects of Transfrontier Pollution,” in OECD, Problems in Transfrontier Pollution 285, at 290 (1974).Google Scholar Gf. also Kolosov, J., Obwietstwiennost’ w miezdunarodnom prawie 16–17, 21 (1975).Google Scholar

⁴⁹ Statement by the Canadian delegation on State Responsibility in Cases of Transfrontier Pollution, OECD Doc. ENV/TFP/78.5, at 5–6 (1978).

⁵⁰ The Corfu Channel case (Merits), [1949] I.C.J. Rep. 4, at 22–23.

⁵¹ This should already be obvious from the formulation used by the Court in laying down the basic rule, namely “every State’s obligation not to allow knowingly its territory to be used contrary to the rights of others”: ibid., 22 (emphasis added).

⁵² See, e.g., de Arechaga, , “International Responsibility,” in Manual of Public International Law 531, at 537 (Sorensen, M., ed., 1968).Google Scholar

⁵³ Sometimes this is also referred to as “liability based on fault” with “fault” merely denoting conduct of the state which is violative of an international obligation and not referring to the individual agent’s culpability as the latter in general will be immaterial as to whether a state has fallen short of the internationally required standard of conduct. See Art. 3 of the Draft Articles on State Responsibility and the Commission’s commentary thereto: Report of the ILC on the Work of Its Twenty-Fifth Sess., in [1973] YB ILC (vol. II) 161, at 179–84, and see Anzilotti, D., Corso di Diritto Internazionale (vol. 1) 409–10 (4th ed., 1955)Google Scholar; Borchard, , “Theoretical Aspects of the International Responsibility of States,” 1 ZaöRV 223, at 226 (1929)Google Scholar; and Starke, , “Imputability in International Delinquencies,” 19 Brit. Y.B. Int’l L. 104 (1938).Google Scholar

⁵⁴ See, e.g., Statement of the Canadian delegation, supra note 49: “A State exercising ‘due diligence’ could still interfere with the rights of another State. This is a position which Canada cannot support as nations must be responsible for damage caused by their polluting activities and this duty should not be relaxed through the adoption of so elastic a concept as ‘due diligence’.”

⁵⁵ See Quentin-Baxter, Second Report, supra note 34. But note, e.g., Lord Rad-cliffe in Bolton v. Stone, [1951] A.C. 850. For a detailed discussion, see text infra at nn. 91–96.

⁵⁶ For details, see text infra at nn. 94–95. In this context cf. moreover Keeton, R. & O’Connell, J., Basic Protection of the Traffic Victim 242 (1965)Google Scholar: “Underlying the whole body of tort law is an awareness that the need for compensation alone is not a sufficient basis for an award. When a plaintiff receives a defendant’s payment in satisfaction of a judgment obtained in court, loss is not compensated in the sense that it is somehow made to disappear. It is only shifted. . . .”

⁵⁷ For a full development of the argument, see instead G. Handl, Transnational Risk-Creation and International Law (forthcoming).

⁵⁸ See, e.g., Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis 24 (1970).Google Scholar

⁵⁹ For further details, see, e.g., Calabresi, and Hirschoff, , “Toward a Test for Strict Liability in Torts,” 81 Yale L.J. 1055, at 1060–61 (1972).CrossRef Google Scholar

⁶⁰ By the same token, limitation of liability to harm typical of the risk created assures that the acting state will be held accountable only for damage with respect to which it must be deemed the better cost-avoider. Cf. in this context Calabresi and Hirschoff, supra note 59, at 1066.

⁶¹ It is true, of course, that where acting states comply with their international obligations of “prior information and consultation,” the victim state would share in the knowledge of the risk created. But both quantity and quality of the information thus supplied must realistically be expected to be less than that which will be available to the acting state.

⁶² In this regard see Jenks, , “Liability for Ultra-Hazardous Activities in International Law,” 117 Recueil des Cours 99, at 107 (1966):Google Scholar

“It does not imply that the activity is ultra-hazardous in the sense that there is a high degree of probability that the hazard will materialize, but rather that the consequences in the exceptional and perhaps quite improbable event of the hazard materializing may be so far-reaching that special rules concerning liability for such consequences are necessary if serious injuries and hardship are to be avoided.”

⁶³ If, by contrast, exceptionally severe consequences were to materialize on a continuous basis, i.e., the probability of their occurrence would be, mathematically speaking one, the accident-prone activity would be banned outright. Indeed, any unavoidably high probability of occurrence of a given accident would presumably render the risk-bearing activity unlawful as long as the consequences remained above the threshold of international legal significance. As to the latter, see text supra at n. 29.

⁶⁴ See, e.g., 1960 Convention on Third Party Liability in the Field of Nuclear Energy, text in 55 Am. J. Int’l L. 1082 (1961); Vienna Convention on Civil Liability for Nuclear Damage, text in 2 Int’l Leg. Mat. 727 (1963) ; Convention on the Liability of Operators of Nuclear Ships, 1962, text in 57 Am. J. Int’l L. 268 (1963) ; Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Materials, 1971, text in 11 Int’l Leg. Mat. 277 (1972); 1969 International Convention on Civil Liability for Oil Pollution Damage, text in 9 Int’l Leg. Mat. 45 (1970) ; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, text in 11 Int’l Leg. Mat. 284 (1972); Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration and Exploitation of Seabed Mineral Resources, 1976, text in 16 Int’l Leg. Mat. 1450 (1977) ; and the 1972 Convention on International Liability for Damage Caused by Space Objects, text in 10 Int’l Leg. Mat. 965 (1971).

⁶⁵ For details of a review, see, e.g., Handl, supra note 21, at 543–48.

⁶⁶ As to the fallacy of approaching the international law-making process by exclusive concentration on the “sources” listed in Art. 38 of the Statute of the International Court of Justice, see McDougal, & Reisman, , “The Prescribing Function in World Constitutive Process: How International Law is Made,” 6 Yale Studies in World Public Order 249 (1980).Google Scholar

⁶⁷ For relevant overviews, see, e.g., Zweigert, K. and Kötz, H., Die Haftung für gefährliche Anlagen in den EWG-Ländern sowie in England und den Vereinigten Staaten von Amerika (1966)Google Scholar; Arsanjani, M., “No-Fault Liability from the Perspective of the General Principles of Law” (unpublished paper, Codification Division, U.N., 1979)Google Scholar; and Will, M., Quellen erhöhter Gefahr (1980).Google Scholar See further Hardie, , “Nuclear Liability: The General Principles of Law and Further Proposals,” 36 Brit. Y.B. Int’l L. 223, at 227–38 (1960)Google Scholar; and Kelson, , “State Responsibility and the Abnormally Dangerous Activity,” 13 Harvard Int’l L.J. 197, at 201–11 (1972).Google Scholar

⁶⁸ The major issue, it will be recalled, is whether, in view of the existence of states with widely diverging socio-economic systems, “there can be normative principles common to socialist law and to bourgeois law” : Tunkin, G., Theory of International Law 199 (1974).Google Scholar To be applicable on the international legal plane, “general principles,” according to this view, must have been recognized by states through treaty or by way of their evolution into an international custom: ibid., 202. Specifically, for a rejection of a general principle of strict liability applicable to transnational risk-creation, see, e.g., Steinert, , “Verantwordichkeit und Haftung im Völkerrecht,” 30 Wiss. Zeitung d. Humboldt-Univ. Berlin, Ges.-Sprachw. R. #1, 23 (1981)Google Scholar; and cf. Ushakov, in the ILC debates on Quentin-Baxter’s, Third Report, U.N. Doc. A/CN.4/SR 1739, 18 (1982).Google Scholar

⁶⁹ Such fundamental principles of international law as the sovereign equality of states have long been recognized as one of the “sources of international law.” See, e.g., Levin, D., Osnovnye problemny sovremennogo mezhdunarod-nogo prava 100 (1958),Google Scholar cited in G. Tunkin, supra note 68, at 196. For a less hostile attitude towards general principles of law as an indication of policy and principle to be followed on the international legal plane, see, e.g., Herczegh, G., General Principles of Law and the International Legal Order 123–24 (1969).Google Scholar And note that as regards the specific issue here under discussion, some commentators from socialist countries have affirmed the existence in general international law of a principle of strict liability for transnationally hazardous activities: see, e.g., Kolosov, supra note 48. Others have strongly emphasized the need for a strict liability approach in the face of increasing transnational risk-creation. See Kwiatkowska-Czechowska, supra note 35, at 164; and Mazov, , “Liability for the Harmful Consequences of Lawful Activities,” 8 Sovetskoe Gosudarstvo i Pravo 116 (1979).Google Scholar

⁷⁰ Jenks, supra note 62, at 156. See also Goldie, , “Liability for Damage and the Progressive Development of International Law,” 14 Int’l & Comp. L.Q. 1189, at 1241 (1965).CrossRef Google Scholar

⁷¹ Apart from the instances of international practice referred to (see supra note 21 ), acceptance of the principle is also finding increasing reflection in the literature. See, e.g., Kelson, supra note 67, at 243 ; Hardie, supra note 67, at 237; Cahier, , “Le problème de la responsabilité pour risque en droit international,” in International Relations in a Changing World 411, at 427–28 (1977)Google Scholar; Politi, , “Miniere d’uranio nelle Alpi Marittime, inquinamento transfrontaliero e tutela internazionale dell’ambiente,” Riv. Diritto Internazionale Privato e Processuale No. 3, 541, at 574 (1981)Google Scholar; Lopez, Marin, “Aspectos actuales de la responsabilidad internacional,” in Estudios de Derecho Internacional (Homenaje a Prof. Mieja de la Muela) 815, at 835–36 (1979)Google Scholar; Tesauro, G., L’inquinamento marino nel diritto internazionale 179–80 (1971)Google Scholar; Randelzhofer, and Simma, , “Das Kernkraftwerk an der Grenze,” in Festschrift f. Friedrich Berber 389, at 428–30 (Blumenwitz, and Randelzhofer, , eds., 1973)Google Scholar; J. Schneider, supra note 48, at 163–67 and Stein, supra note 48, at 290. For additional references, see Handl, supra note 21, 552, n. 125; and supra notes 69–70.

⁷² See GA Res. 3071 (XXVIII), 3315 (XXIX), 3495 (XXX) and 31/97.

⁷³ See, e.g., Draft Report of the ILC on the Work of Its Thirty-Fourth Sess. (Chapter V), U.N. Doc. A/CN.4/L. 347, 19, para. 34 (1982). Some Commission members, however, have entertained strong reservations about the applicability of this principle.

⁷⁴ Cf. Art. 130, 235, 263, 304, and 22 of Annex III, all of which deal with responsibility and liability; only Art. 235, 263(3), and 304 very specifically address liability for marine pollution: Draft Convention, supra note 28.

⁷⁵ U.N. Doc. A/CONF.62/WP.10, text in 16 Int’l Leg. Mat. 1108 (1977); and see its predecessor, Art 44 of the Revised Part III of the Single Informal Negotiating Text submitted by the Chairman to the Conference, U.N. Doc. A/CONF.62/WP.8/REV.1/PART III, in UNCLOS-III, 5 Official Records 173 (1976).

As to the fact that a state cannot be said to have automatically committed a violation of such an obligation upon the occurrence pure and simple of transnational environmental damage, see text supra at n. 51. In other words, the wording of Art. 236, para. 1, must be deemed to be a reference to liability for harm resulting from internationally wrongful conduct.

⁷⁶ As to the initial strict liability proposal by Morocco and Egypt, see statement of the Moroccan delegate at the 32nd meeting of the 3rd Committee, in UNCLOS-III, 6 Official Records 108, para. 21 (1977).

As to the change in response to the Arab countries’ formula, see debates during the 40th meeting of the 3rd Committee, UNCLOS-III, 11 Official Records, 69–73 (1979).

⁷⁷ See Informal Suggestion by Bahrain, Democratic Yemen, Egypt, etc., Doc. MP/18, in UNCLOS-III, 10 Official Records 111–12 (1978). While the proposal stipulated the state’s strict accountability, claims for compensation were to be handled in accordance with international or private law depending on whether acta iure imperii or gestionis were involved. As to the basic point of departure being strict state liability, see also statement of the Turkish delegate supporting the Arab countries’ proposal: 31st meeting of the 3rd Comm., in UNCLOS-III, 9 Official Records 160, para. 30 (1978).

⁷⁸ Note in this context also the disclaimer made in Art. 304 of the “general provisions” clause: “The provisions of this Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law.”

⁷⁹ See the 1969 Civil Liability Convention, supra note 64.

⁸⁰ See the 1976 London Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration and Exploitation of Seabed Mineral Resources, supra note 64; and Conclusions of the Study on the Legal Aspects Concerning the Environment Related to Offshore Drilling and Mining Within the Limits of National Jurisdiction, Annex I to Draft Report of the Working Group of Experts on Environmental Law on Its Eighth Sess., U.N. Doc. UNEP/WG.54/CRP.2/Add.3, para. 35(3), (1981).

⁸¹ See 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Materials, supra note 64.

⁸² See Draft Articles for a Convention on Liability and Compensation in Connexion with the Carriage of Noxious and Hazardous Substances by Sea, Annex 2 to Report of the Legal Committee on the Work of Its Forty-Seventh Sess., IMCO Doc. LEG 47/7 (1982).

⁸³ See the nuclear liability conventions, the 1960 Paris, and the 1963 Vienna Conventions, supra note 64.

⁸⁴ To begin with, the international liability of a state might be brought into issue where the state itself is the operator/actor and irrespective of whether or not a so-called private law liability convention might apply. For none of these conventions address the issue of the international liability of the state, in this case the actor/operator. Some expressly deny pre-emption of the public international law avenue for compensation. As to the latter, see, e.g., Annex II to the 1960 Paris Nuclear Liability Convention, and Art. XVIII of the 1963 Vienna Convention on Civil Liability for Nuclear Damage, supra note 64.

As to the related but separate scenario where the controlling or authorizing state’s liability for the miscarriage of an abnormally dangerous activity carried on by private persons may be in issue internationally, see text infra at nn. 100–9.

⁸⁵ Cahier, supra note 71, at 431. Cf. also Sohn, and Baxter, , “Convention on the International Responsibility of States for Injuries to Aliens, Final Draft with Explanatory Notes,” in Amador, F. Garcia, Sohn, L. and Baxter, R., Recent Codification of the Law of State Responsibility for Injuries to Aliens 133, at 170–71 (1974).Google Scholar

⁸⁶ Second Report, supra note 34; Third Report, supra note 38.

⁸⁷ To this effect, see, e.g., Second Report, Add. 1, supra note 34, 7, fn 86.

⁸⁸ See Third Report, supra note 38, 11–12, para. 20–21.

⁸⁹ See, e.g., ibid., 13, para. 23. Note in this context that “foreseeability” relates to “typicality of harm” rather than to the causal chain. For details on this crucial distinction, see Handl, International Obligations of Prevention: Legal Consequences of Force Majeure or Fortuituous Event (forthcoming).

⁹⁰ As to the pertinent notion of risk, namely as a severe consequences/low probability event, see supra notes 62–63.

⁹¹ Third Report, supra note 38, at 19, para. 41.

⁹² Ibid., 15, para. 29: “[I]n such a case it is at least unlikely that the distribution of costs and benefits will do less than vindicate the claim of the affected State to receive full reparation in respect of loss or injury suffered by an innocent victim.”

⁹³ In fairness it has to be pointed out that while the preceding quotations do support this inference, the schematic outline appended to the Report seems to indicate the rapporteur’s true position: only a contextual analysis could determine whether and to what extent truly foreseeable loss could be shifted to the innocent acting state as a matter of law. See Section 4 of the Schematic Outline, ibid., 26–27.

⁹⁴ Ibid., 15, para. 29.

⁹⁵ In all those cases in which compensation payments were made upon the occurrence of transnational accidental damage despite the absence of allegations that the causal state conduct had been wrongful, the harm sustained was typical of the risk created, i.e., was “foreseeable.”

⁹⁶ As to the existence of such a duty, see Quentin-Baxter, , Third Report, supra note 38, at 26–27.Google Scholar Cf. also Wildhaber, , “Die Öldestillerieanlage Sennwald und das Völkerrecht der grenzüberschreitenden Luftverschmutzungen,” 21 Ann. Suisse D. I. 97, at 112–13 (1975)Google Scholar; and North Sea Continental Shelf cases, [1969] I.C.J. Rep. 3, at 48–55, para. 87–101; and Fisheries Jurisdiction cases (United Kingdom of Great Britain and Northern Ireland v. Iceland), [1974] I.C.J. Rep. 3.

⁹⁷ To this effect, see Mössner, , “Privatpersonen als Verursacher völkerrechtlicher Delikte. Bemerkungen zu Artikel 11 des Enwurfs der ILC zur Staatenverant-wortlichkeit,” 24 German Yearbook Int’l L. 63, at 90 (1981).Google Scholar

⁹⁸ See, e.g., Ago, Fourth Report on State Responsibility, U.N. Doc. A/CN.4/ 264, 55 (1972); and Art. 11 of the Draft Articles on State Responsibility, supra note 53.

⁹⁹ See text supra at nn. 21–26; and see also the Janina murder case, reviewed in Ago, supra note 98, at 94–98.

¹⁰⁰ To this effect, see also Kelson, supra note 67, at 234; Kwiatkowska-Gzechowska, supra note 35, at 170; and Treves, , “Les tendances récentes du droit conventionnel de la responsabilité et le nouveau droit de la mer,” 21 Annuaire Français DI 765, at 781 (1975).Google Scholar

¹⁰¹ See supra note 100; and O’Connell, , “Continental Shelf Oil Disasters: Challenge to International Pollution Control,” 55 Cornell L. Rev. 113, at 127 (1970)Google Scholar; Dinstein, , “Oil Pollution by Ships and Freedom of the High Seas,” 41 Nordisk Tidsskrift for International Ret 220, at 228 (1971)Google Scholar; Teclaff, , “International Law and the Protection of the Oceans from Pollution,” in International Environmental Law 104, at 122 (Teclaff, L. and Utton, A., eds., 1974)Google Scholar; Sucharitkul, in ILC debates on Quentin-Baxter’s, Third Report, U.N. Doc. A/CN.4/SR. 1735, 9 (1982)Google Scholar; Conclusions of the Study of Offshore Mining and Drilling Within the Limits of National Jurisdiction — Liability to Pay Compensation for Environmental Damage, U.N. Doc. UNEP/WG.49/2/Add.1, 3, para. 8(d) (1980).

For recognition of the fundamental need for such a strict liability standard, see Lay, , “Pollution from Offshore Oil Wells,” in New Directions in the Law of the Sea (vol. 3) 103, at 104 (Churchill, R. et al., eds., 1973)Google Scholar; and statement by the Soviet delegate in the LOS debates, 4th meeting of the Third Committee, UNCLOS-III, 2 Official Records 320, para. 55 (1974).

¹⁰² Handl, supra note 21, at 540–59.

¹⁰³ In this context, note the problem of so-called single ship or single plant companies and the well-taken caveat regarding the sufficiency in general of pollution insurance funds. “On notera tout d’abord que qui dit fonds, dit plafond. Toute assurance, toute fonds d’indemnisation comporte des limites au-delà desquelles la victime est abandonneé à elle-même” : Rodière, R. and Remond-Gouillouid, M., La mer: droits des hommes ou proie des états?, 121 (1980)Google Scholar; see further Treves, supra note 100.

¹⁰⁴ por what must be considered to be a purposefully naive view on the existence of direct and indirect benefits from private activities, see ILC’s discussion of the Third Report, statement by Balanda, U.N. Doc. A/CN.4/SR. !739) Η (!982) : “The beneficiaries of the activity would certainly be the persons carrying it out, so that one could not speak of interests of the State in whose territory the activity was carried out.” For a proper perspective, see instead Gros, J., Sep. Op, in Barcelona Traction, Light and Power Company, Limited, Judgment , [1970] I.G.J. Rep. 3, 268, at 269Google Scholar: “[T]he economic world today exhibits phenomena of State intervention in responsibility for the economic activity of the subject within the national territory or abroad which are so frequent and thoroughgoing that the separation of the interest of the individual from that of the State no longer corresponds to reality.”

¹⁰⁵ There is no need here to pursue the issue of whether states might be liable internationally at the same time as the private actor is being subjected to transnational litigation. For some thoughts on this issue, particularly in the context of the “private law conventions,” see, e.g., Handl, supra note 21, at 560–64.

¹⁰⁶ Jenks, supra note 62, at 178.

¹⁰⁷ See Treves, , “La Pollution résultant de l’exploration et l’exploitation des fonds marins en droit international,” 24 Annuaire Français DI 827, at 842 (1978).CrossRef Google Scholar

¹⁰⁸ See in particular Cahier, supra note 71, at 431 ; and Rest, A., International Protection of the Environment and Liability: The Legal Responsibility of State and Individuals in Cases of Transfrontier Pollution 123 (Beiträge zur Umweltgestaltung, vol. A56, 1978).Google Scholar

¹⁰⁹ Note in particular the ILC’s Commentary on Article 11 of the Draft Articles on State Responsibility, Report of the International Law Commission on the Work of Its Twenty-Seventh Sess. [1975] YB ILC (vol. 2) 73, para. 12; cf. also Quentin-Baxter, Second Report, supra note 34, at u, para. 19. Sir Ian Sinclair did raise the question of attributability in the ILC’s debates on Quentin-Baxter’s Third Report: U.N. Doc. A/CN.4/SR.1742, 6 (1982). However, the issue seems to have been referred to in the context of situations in which state control over the hazardous private conduct was substantially attenuated. For a discussion of this special set of circumstances, see text infra at nn. 112–28.

¹¹⁰ Apart from situations of concurrent jurisdiction in general, a particularly interesting case is that of a high-technology exporting country and the importing developing country. To what extent, if any, should the exporting country be considered to exert “control” or “partial control” over the complex and hazardous technology for the purposes of determining co-liability in the event of an accident? For an indication of the importance of this issue, see, e.g., Quentin-Baxter, , Third Report, supra note 38, at 20, para. 45.Google Scholar As to technology transfer, environmental protection, and an end to caveat emptor, see statement by J. Scherr, in U.S. Export of Banned Products, Hearings before Subcom. of the Comm. on Govt. Operations, H.R. g5th Cong., 2nd Sess., 42 (1978); and note the OECD Proposed Guiding Principles on Information Exchange Related to Export of Hazardous Chemicals, text in 5 BNA, Int’l Env. Reporter, Current Reporter 201 (1982).

¹¹¹ For a discussion of this critical issue in the ILC, see in particular Evensen, U.N. Doc. A/CN.4/SR.1741, 9 (1982).

¹¹² To this effect, see also the debates within the ILC, summarized in Draft Report of the ILC, Add. I, supra note 73, at 2, para. 36.

¹¹³ For the fact that flag-of-convenience vessels rarely call on ports in the state of registry, see, e.g., Lowe, , “The Enforcement of Marine Pollution Regulations,” 12 San Diego L. Rev. 624, at 633 (1975).Google Scholar

¹¹⁴ Fleischer, , “Pollution from Seaborn Sources,” in New Directions of the Law of the Sea, supra note 101, 78, at 81Google Scholar; and see Art. 5 of the 1958 Geneva Convention on the High Seas, supra note 26, and Art. 217 of the Draft Convention on the Law of the Sea, supra note 28. See also Caflisch, , “Some Aspects of Oil Pollution from Merchant Ships,” 4 Annales d’Etudes Internationales 213, at 219–20 (1973)Google Scholar; and Sohn, , “The Stockholm Declaration on the Human Environment,” 14 Harvard Int’l L.J. 423, at 493 (1973).Google Scholar

¹¹⁵ By contrast, the maritime carriage of bulk dangerous substances in special tanks or cargo spaces that are a structural part of the ship may be an activity the risks of which flag-state authorities should have been aware of upon registering the vessel or upon authorizing subsequent structural changes. As to basic flag-state responsibility for the design, construction, and equipment of vessels, see Art. 5 of the 1958 Geneva Convention on the High Seas, supra note 26; and Art. 94, para. 3 and 4, of the Draft Convention on the Law of the Sea, supra note 28; Regulation 5 of Annex I of the 1973 International Convention for the Prevention of Pollution from Ships, text in 12 Int’l Leg. Mat. 1319, at 1341 (1973) ; and Regulation 6 of the i960 SOLAS Convention, 16 U.S.T. 187, T.I.A.S. No. 5780. As to the link of structural design and designated use as a bulk chemical substance carrier, note, e.g., the definition used in Art. I of the Draft Articles for a Convention on Liability and Compensation in Connexion with the Carriage of Noxious and Hazardous Substances by Sea, in Report of the Legal Committee on the Work of Its Forty-Seventh Sess., IMCO Doc. LEG 47/7, Annex 2 (1982).

¹¹⁶ As to the risks associated with transportation of hazardous substances in packaged form, see the conclusion by an informal working group of technical experts, Annex I to Report of the Legal Committee on the Work of Its Thirty-Ninth Sess., IMCO Doc. LEG XXXIX/5, 3, para. 5 (1979) : “[T]he group agreed in principle that some substances in packaged form might cause in some circumstances catastrophic damage.” See further Note by the Italian delegation which addresses the same issue, IMCO Doc. LEG XLIII/ 2/3 (1980): “[N]ot to regulate internationally the responsibility deriving from the carriage of hazardous substances in packages would mean — on the one hand — to ignore that this type of carriage is nowadays prevailing and, on the other hand, to underrate the fact that the most dangerous situations are actually those connected with the carriage of harmful substances in packaged form.” On the trade in hazardous and noxious substances in general, see IMCO Doc. LEG 47/3/6, 1–3 (1982).

¹¹⁷ This should not, however, rule out the possibility that apart from the vessel owner or shipper — the two parties to which liability is being channelled under the Draft Hazardous and Noxious Substances Convention: see Art. 3 and 7 of the Draft Convention, IMCO Doc. LEG 47/7, Annex 2 (1982) — either the importing state or the exporting state might not have to shoulder at least part of the financial burden of compensating transnational pollution victims. For pertinent criteria for assessing such countries’ implication in the realization of the risk, see text supra at nn. 57–61.

¹¹⁸ For an extensive discussion of the notion of “effective control” in a situation of overlapping jurisdictions, see Handl, supra note 21, at 531–35; and “Etudes des mesures internationales les plus aptes à prévenir la pollution des milieux maritimes,” 53 Ann. Institut Droit International (vol. II) 255, at 278–87 (1969).

¹¹⁹ For a detailed account of that case, see Fabbri (Minister of Merchant Marine), Senato, VII Leg., 29^a sess., resoconto somm. 9–13 (1976); Sand, , “The Role of Domestic Procedures in Transnational Environmental Disputes,” in OECD, Legal Aspects, supra note 45, 146, at 197 Google Scholar; and Rousseau, , “Chronique des faits internationaux,” 80 RGDIP 1258 (1976).Google Scholar

¹²⁰ Apart from diplomatic contacts with Yugoslavia, the wreck prompted also the intervention of the Albanian ambassador to Italy, who expressed his government’s concern about a possible threat to Albania: Fabbri Report, supra note 119, at 12–13.

¹²¹ Florio, , “Un caso di grave pericolo d’inquinamento marino,” 63 Rivista Diritto Internazionale 374, at 385 (1980).Google Scholar It should be emphasized that reference here is to Yugoslavia’s liability qua state, i.e., its international liability.

¹²² Moreover, it should be noted that the Cavtat was not a bulk chemical substance carrier (see also Note of the Italian delegation, supra note 116). Yugoslavia’s accountability as the registering state authorizing a private hazardous shipping activity would consequently not have been in issue. As to the relevance in this context of the registration of the vessel as a bulk hazardous substance carrier as against a general cargo ship, see supra note 115.

¹²³ To this effect, see also von Münch, , “Schiffwracks: Völkerrechtliche Probleme,” 20 Archiv d. Völkerrechts 183, at 196–98 (1982).Google Scholar

¹²⁴ Even if, however, the Cavtat had been registered as a special bulk carrier, Yugoslavia’s international liability might not have been invokable. In other words, the mere fact that the flag-state might have been deemed to have authorized, upon registration, a transnationally hazardous shipping activity should not have made any difference. For the cause of any catastrophic marine pollution owing to corrosion of the ship’s containers would have been the controlling state’s, i.e., Italy’s inaction over the years rather than Yugoslavia’s initial risk-creation. It is true that the crucial element of foreseeability of harm by which the risk-creating state’s strict liability would be determined relates to “typicality of harm” and not the causal sequence of the occurrence of harm. But it cannot be extended to cover circumstances in which the initiative for preventive action has passed from the acting state, because control over the hazardous activity, in this case vessel, has passed on to another state.

¹²⁵ For further discussion, see Handl, supra note ai, at 560–64; Statement by the Canadian delegation, supra note 49, at 7, para. 18; and Politi, supra note 71, at 578–79.

¹²⁶ See, e.g., the confirmation of basic flag-state enforcement jurisdiction in Art. 94(3) and (4), and 217(1), (2), and (3) of the Draft Convention, supra note 28.

¹²⁷ See supra note 84.

¹²⁸ See text supra at n. 69.

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