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Liability as an obligation established by a primary rule of international law: Some basic reflections on the International Law Commission's work*

Published online by Cambridge University Press:  07 July 2009

G. Handl
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Extract

Few undertakings of the International Law Commission have proved to be as controversial as its study of “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law”. Despite an encouraging initial report by a working group of the Commission on the suitability of the topic for codification and progressive development, the undertaking, once launched, immediately met with strong scepticism, at times outright rejection. It is true that over the last two years support for the Commission's work on the topic has grown appreciably both within and outside the Commission. However, detractors of the study remain strongly in evidence.

Type
Symposium on State Responsibility and Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law
Information
Netherlands Yearbook of International Law , Volume 16 , December 1985 , pp. 49 - 79
Copyright
Copyright © T.M.C. Asser Press 1985

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References

1. See Report of the ILC on the Work of its Thirtieth Session, GAOR, Thirty-Third Sess., Supp. No. 10 (A/33/10) (1978) p. 375, at p. 379, para. 25.

2. For conversions to the importance and viability of the topic, see, e.g., statements of C. Malek at the 1848th meeting of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1848 (1984) pp. 9–10; and of Sir Ian Sinclair at the 1849th meeting of the ILC, UN Doc. A/CN.4/SR.1849 (1984) p. 9.

3. Thus, very importantly, the topic has gained significant support in the Sixth Committee of the General Assembly. For a review of Committee members' largely favourable reactions to the Special Rapporteur's critical Third Report on the topic, see R.Q. Quentin-Baxter, Fourth Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/373 (1983) p. 7 para. 10.

4. See infra text at nn. 18–22.

5. In the International Law Commission's parlance, which is now fairly generally followed, “primary rules of obligation” denote rules which impose specific obligations on States, whereas “secondary rules”, or rules of State responsibility, are concerned with determining the legal consequences of a failure to fulfill the obligations established by primary rules. See Report of the ILC on the Work of its Twenty-Fifth Session, ILC Yearbook 1973, vol. 2, p. 161, at p. 169Google Scholar, para. 40. Liability established by a primary rule of obligation, therefore, implies a duty to repair harm that is not contingent upon a violation of an international obligation.

6. As to the limitation of the scope of the topic to physical transboundary consequences, see also infra, text at n. 38.

7. Probably more so than other Special Rapporteurs, Quentin-Baxter may have been able to shape the Commission's approach in a very major way due to initially vague contours of the topic. As to the latter, see Quentin-Baxter, Fourth Report, supra n. 3, p. 1, para. 1.

8. See, e.g., R.Q. Quentin-Baxter, Third Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/360 (1982) pp. 4–5, paras. 9–10; and the Schematic Outline, ibid. pp. 24–30, and reproduced in this volume.

9. One aspect of the proposed regime which this writer finds somewhat problemetical is the Rapporteur's insistence that non-abidance with the rules stipulated would not engage the responsibility of the State for wrongfulness except for ultimate failure, in the case of loss or injury, to make the reparation that might then be required: Quentin-Baxter, Third Report, supra n. 8, p. 16, para. 31. In principle, obligations imparfaites are, of course, not an uncommon phenomenon. However, in the present context it is questionable whether they would make sense. Riphagen's supportive explanation, in particular his reference to municipal law as an indication that, as a rule, there was “no absolute link between agreed preventive measures and liability”, is not entirely persuasive: statement at the 1631st meeting of the ILC, ILC Yearbook 1980, vol. 1, p. 245, para. 30. Thus in at least some common law jurisdictions a violation of a procedural duty will give rise to liability for wrongful infliction of harm, if it is the proximate cause of the injury. It is difficult to see why the proposed liability rules ought to be treated differently. On that same point, see also Handl, G., “State Liability for Accidental Transnational Environmental Damage by Private Persons”, 74 AJIL (1980) p. 525, at p. 556.CrossRefGoogle Scholar

10. To some, however, the topic has remained “in the nature of a dead end”: N.A. Ushakov, statement at the 1849th meeting of the ILC, UN Doc. A/CN.4/SR.1849 (1984) p. 5; and note the Venezuelan delegate to the Sixth Committee, UN Doc. A/C.6/37/SR.45 (1982) p. 10, para. 40, who characterized the topic as “groundless”.

11. It is probably correct to assume mat when aunng the debates on the origin of the internationally wrongful act the Commission decided to set aside the question of liability for “lawful conduct”, it had been anticipated that the focus of a subsequent study would be exclusively on liability as a primary obligation, in other words, on the counterpart of liability as a secondary rule of obligation, or State responsibility. Cf., in this context, R. Ago's statement at the 1204th meeting of the ILC, ILC Yearbook 1973, vol. 1, p. 14, para. 5.

12. For details, see infra text at nn. 36–39.

13. “Source State” as used in this paper denotes a State within whose territory or subject to whose jurisdiction a transnationally injurious event or activity takes place or is carried on. In this paper the issue of attribution will not specifically be dealt with. However, it might be pointed out that the Rapporteur seems to have proceeded on the assumption that with a State's knowledge of a transnational risk being an essential element in the draft rules, any transnational harm as a realization of that risk could engage that State's international liability, in other words, irrespective of whether the harm was the consequence of the conduct of private individuals or of the State itself. See, e.g., R.Q. Quentin-Baxter's statement at the 1744th meeting of the ILC, ILC Yearbook 1982, vol. 1, p. 287, para. 11, in response to S. Sucharitkul who had suggested that the question of attribution might not be a cut and dried matter: statement at the 1742nd meeting of the ILC, ibid. p. 275, para. 16. There appears to be also substantial support within the Sixth Committee for “automatic” attribution: see, e.g., statements of the Brazilian delegate, UN Doc. A/C.6/37/SR.43, p. 14, para. 62; and of the Austrian delegate, UN Doc. A/C.6/37/SR.51, p. 22, para. 100. Such an approach would seem to be the only one consistent with the basic rationale for loss-shifting in the cases concerned (see infra ss. 3–4). For further details, see Handl, loc. cit., n. 9, p. 559, n. 155.

14. See, e.g., Quentin-Baxter, Third Report, supra n. 8, p. 5, para. 11.

15. For the Rapporteur's acknowledgement of the centrality of the issue of liability, see R.Q. Quentin-Baxter, Second Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/346 (1981) p. 11, para. 20; and see statement of K. El-Rasheed at the 1852nd meeting of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1852 (1984) p. 3.

16. There can be little doubt today as to the existence of such an obligation. Thus in the Corfu Channel case, for example, the ICJ stated, as a principle of international law of general applicability “every State's obligation not to allow knowingly its territory to be used contrary to the rights of others”: ICJ Rep. (1949) p. 4, at p. 22. See further Principle 21 of the Stockholm Declaration, Report of the Stockholm Conference, UN Doc. A/CONF.48/14, at p. 7, reproduced in 11 ILM (1972) p. 1416, at p. 1420, which commits States “to insure that activities within their jurisdiction or control do not cause damage to areas beyond the limits of national jurisdiction”; and the decision in the Trail Smelter case, 3 RIAA, p. 1095, at p. 1965. Indeed, today in a specific environmental context, this principle must be deemed to be an extremely widely, if not universally accepted obligation of international law. Note, e.g., its explicit endorsement as expressing a “common conviction”, in the preamble to the 1979 ECE Convention on Long-Range Transboundary Air Pollution, 18 ILM (1979) p. 1442. See J.J.A. Salmon in his capacity as the Institute of International Law's Special Rapporteur on the topic of the pollution of international rivers and lakes in international law, Annuaire vol. 58 part II (1979), and Dupuy, P.M., “Limites materielles des pollutions tolérées”, in Bothe, M. et al. , eds., Rechtsfragen grenzüberschreitender Umweltbelastungen, Fachtagung Saarbrücken, 13–15 Mai 1982 (1984) p. 27, at p. 29.Google Scholar

17. For details, see infra text at n. 128.

18. See infra n. 20; and de Aréchaga, E. Jiménez, “International Law in the Past Third of a Century”, 159 Hague Recueil (1978) p. 1, at p. 273.Google Scholar

19. Statement of Sir Ian Sinclair at the 1849th session of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1849 (1984) p. 10.

20. See, e.g., statements of the delegate from the GDR in the Sixth Committee, UN Doc. A/C.6/37/SR.38 (1982) p. 12, para. 14; and of the Israeli delegate, UN Doc. A/C.6/37/SR.47, p. 5, para. 10. See also Randelzhofer, A., “Probleme der völkerrechtlichen Gefährdungshaftung”, Slaatenverantwortlichkeit, Berichte der Deutschen Gesellschaft für Völkerrecht, vol. 24 (1983) pp. 71-2.Google Scholar

21. See, e.g., Randelzhofer, loc. cit., n. 20, p. 61; and W.K. Geek, ibid. pp. 97–8.

22. See infra text at nn. 77–80.

23. Given the Commission's commitment to the progressive development of rules on this subject-matter, this question may in the end be somewhat less important.

24. A comprehensive analysis would far exceed the scope of an article of this sort. For a more detailed study see instead Handl, G., Transnational Risk-Creation and International Law (to be published).Google Scholar

25. In other words, this paper will not discuss the specific features of “strict liability”, or the interplay of State liability and the so-called private law conventions. Nor will it specifically deal with the question of whether strict liability can be considered a principle of general international law.

26. Of course, once criteria for the activation of liability as a primary obligation have been laid down, the question of how they may interrelate with the rules of State responsibility in a given situation of transboundary loss, becomes largely irrelevant. This is true for any conceptualization of liability irrespective of international wrongfulness. For the basic idea embodied in any such approach to loss allocation connotes a duty to repair harm without regard to whether the causal State conduct was internationally wrongful. The criteria whose incidence in a given situation will trigger the source State's liability thus must refer to factors whose relevance does not depend on the rules of State responsibility not being applicable. See also Report of the ILC on the Work of its Thirty-Second Session, ILC Yearbook 1980, vol. 2, part 2, p. 158Google Scholar, para. 133. As to the possibility that at times, therefore, conduct which gives rise to a primary obligation to repair transnational harm under a regime such as the one proposed by the Special Rapporteur, or pursuant to the principle of strict liability (for details on the latter, see infra), might also be characterized as internationally wrongful, see Quentin-Baxter, Second Report, supra n. 15, p. 10, para. 17. Contra, but unpersuasive, Dupuy, P.M., La responsabilité Internationale des états pour les dommages d'origine technologique et industrielle (1976), pp. 226-7.Google Scholar

Thus far the Commission has settled for the principle that, as the intrinsic legal consequence of the occurrence of transboundary harm, the source State is under a duty to co-operate with the affected State(s) in resolving the question of reparation. For details, see infra text at n. 110. This espousal of the duty of co-operation has pushed the issue of where harm and wrong intersect very much into the background. In the present context, however, that question retains some significance as indicated.

27. To this effect note also the statement of J. Evensen at the 1852nd meeting of the International Law Commission, Provisional Summary Record, UN Doc. A/CN.4/SR.1852 (1984) p. 11, and McCaffrey, S.C., “International Environmental Law and the Work of the International Law Commission”, ASIL Proceedings 1983 p. 414Google Scholar. For illustrations in point see infra text at nn. 3–4, and statements of F.X. Njenga at the 1687th meeting of the ILC, ILC Yearbook 1981, vol. 1, p. 229, para. 18; and of C. Malek at the 1850th meeting of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1850 (1984) p. 15.

28. For critical observations on this mismatch of title and the Rapporteur's proposals, see, e.g., statements of D. Thiam at the 1743rd meeting of the International Law Commission, ILC Yearbook 1982, vol. 1, p. 284, para. 40; and of the Finnish delegate to the Sixth Committee, UN Doc. A/C.6/37/SR.45 (1982) p. 3, para. 11. Cf., also the statement of S.C. McCaffrey at the 1851st meeting of the International Law Commission, Provisional Summary Record, UN Doc. A/CN.4/SR.1851 (1984).

29. See Brownlie, I., System of the Law of Nations: State Responsibility (Part I) (1983) p. 50.Google Scholar

30. Id.

31. See, e.g., Report of the ILC on the Work of its Thirty-Second Session, GAOR, Thirty-Fifth Session, Supp. No. 10 (A/35/10) (1980) p. 365, para. 138.

32. As advanced by Brownlie, op. cit., n. 29.

33. See in particular Quentin-Baxter, Third Report, supra n. 8, at pp. 2–3, paras. 6–8.

34. On this point cf., the statement of the Brazilian delegate in the Sixth Committee, UN Doc. A/C.6/37/SR.43 (1982) p. 14, para. 62, noting that “[i]t should be understood that the activities referred to were not contrary to an obligation under international law; otherwise they would fall under the scope of State responsibility”.

Those exceptional cases in which infliction of harm is either transnational in nature or can be analogized to it, and is the result of conduct that is not specifically prohibited by international law, do not come within the ambit of the Commission's topic. For details see infra text at nn. 63–8.

35. See also Lillich, R.B., “The Current Status of the Law of State Responsibility for Injuries to Aliens”, in Lillich, R.B., ed., International Law of State Responsibility for Injuries to Aliens (1983) p. 1, at p. 34Google Scholar; and W. Rudolf, in Staatenverantwortlichkeit, loc. cit., n. 20, at p. 105.

36. For an acknowledgement, see, e.g., Report of the ILC on the Work of its Thirty-Sixth Session, GAOR, Thirty-Ninth Session, Supp. No. 10 (A/39/10) (1984) p. 177.

37. Apart from whether and to what extent consideration of injurious transnational environmental effects is proper under the heading of State responsibility, a similar problem of “classification” has arisen with regard to certain of the so-called “circumstances precluding wrongfulness”. As to the latter issue note the somewhat conflicting views within the Commission on the matter: see, e.g., W. Riphagen, Preliminary Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles), UN Doc. A/CN.4/330 (1980) at p.10, paras. 18–19; Quentin-Baxter, statement at the 1598th meeting of the International Law Commission, ILC Yearbook 1980, vol. 1, pp. 78–9, paras. 20–26; and Thiam, statement at the 1600th session of the International Law Commission, ibid. p. 86, para.3.

38. See, e.g., R.Q. Quentin-Baxter, Fifth Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/383 (1984) pp. 5–15; and cf., the statement of the US delegate in the Sixth Committee, UN Doc. A/C.6/SR.52 (1982) p. 9, para. 29: “[H]er delegation supported the predominant view of the Commission that the topic should be limited to the physical environment or, at the most, to physical damage caused by physical actions.”

39. This question has, of course, been a constant theme of some dissension within the Commission. As to a recent flare-up of the issue over whether, in principle, the Commission's topic of international watercourse law falls within the ambit of the liability rules, see the statement of Evensen, supra n. 27; and Quentin-Baxter's opposing view, expressed at the 1852nd meeting of the International Law Commmission, ibid. p. 16.

40. In order to get a proper perspective on extra-conventional State practice of shifting loss without regard to wrongfulness, it is essential that situations in which the source State's conduct is implicitly wrongful be distinguished from those in which it is not. In cases involving evident wrongfulness of the source State's conduct, States might well dispense with the legal characterization of the injury causing conduct simply because there may be no need to state the obvious and to do otherwise might detrimentally affect international relations. See also Quentin-Baxter, Fourth Report, supra n. 3, at p. 17, para. 23. Such situations obviously represent instances of loss shifting in the absence of allegations of wrongfulness. But they could hardly be expected to contribute to our understanding of the rationale for loss shifting in cases in which liability is truly an obligation established by a primary rule of international law. For the purposes of the present inquiry, therefore, the mere lack of an allegation of wrongfulness does not automatically establish that case as relevant.

41. There is, however, no denying that States are taking great strides towards “objectivizing” the notion of “harm” by way of enacting conduct-related standards. For mere illustration see, e.g., the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea and its detailed regulations on waste discharges; text in 13 ILM (1974) p. 544; the United States-Canada Water Quality Agreement of 1978, TIAS 9276, specifying particular water quality objectives; and the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at Least Thirty Percent, done 8 July 1985.

42. But note, for example, the Australian Government's allegation of a violation of Australia's “decisional sovereignty” due to radioactive fall-out within Australian territory caused by French atmospheric nuclear testing in the South Pacific. Application instituting Proceedings, ICJ Pleadings, Nuclear Tests (vol. I) p. 14, para. 49.

43. See supra n. 16.

44. See, e.g., Report of the ILC, supra n. 1, at p. 377, para. 17; see further Handl, G., “National Uses of Transboundary Air Resources: The Entitlement Issue Reconsidered”, 26 Natural Resources Journal (1986).Google Scholar

45. See, e.g., “Affaires des biens britanniques au Maroc espagnol”, 2 RIAA, p. 615, at p. 641Google Scholar. Contrary, however, M. Bothe, in Staatenverantwortlichkeit, loc. cit., n. 20, at p. 95, who claims to discern a trend in State practice towards an objectivization of a source State's international accountability in the sense that the latter will be generally obliged to prevent transboundary emissions of a certain magnitude and that a transnationally injurious result to the contrary implies the international wrongfulness of the causal State conduct. His view contrasts, however, with the ILC's commentary to Art. 23 on State repsonsibility (breach of an obligation to prevent a given event) — for details see infra n. 55 — which seems to leave little doubt that the transboundary pollution damage is a typical case covered by the article. In other words, the occurrence of significant harm would not automatically engage the rules of State responsibility.

As to whether a mere finding of the infraction of another State's rights might nevertheless engage the source State's liability under a theory of recovery other than of State responsibility, see infra text at nn. 87–93.

46. See, for example, the primary and secondary national ambient air quality standards that lie at the heart of the United States Clean Air Act s. 101(b)(1), 42 USCS, s. 740(b)(1) (Supp. I 1977); and see the EEC Council Directive 80/779 of 15 July 1980 on Air Quality Limit Values and Guide Values for Sulphur Dioxide and Suspended Particulates, EC OJ L 229/30.

47. When the significance of the harmfulness of a transboundary release of pollutants could not have been reasonably anticipated, the source State would obviously not be liable for wrongful conduct. Arguably, the now ill-reputed tall stack strategy of controlling local concentrations of sulphur compounds by way of facilitating the dispersal of air pollutants over large areas and distances, which has now been established as a significantly contributing factor to the phenomenon of acid deposition, is an example in point.

48. See, e.g. Sette-Camara, J., “Pollution of International Rivers”, 186 Hague Recueil (1984) p. 117, at p. 174Google Scholar: “Once a State is conscious that its acts or omissions are causing extra-territorial pollution, it will be engaged in the practice of an intentionally unlawful act, even if the lawfulness of the human activities, which were the original cause of pollution is beyond debate.”

49. Supra n. 16.

50. Id. at p. 22.

51. Judgment, ICJ Rep. (1980) p. 3.

52. See id., at p. 31, para. 63.

53. See id., at pp. 32–3, para. 68.

54. “When the result required of a State by an international obligation is the prevention, by means of its own choice, of the occurrence of a given event, there is a breach of the obligation only if, by the conduct adopted, the State does not achieve that result.” Text in Report of the International Law Commission on the Work of its Thirty-Second Session, GAOR, Thirty-Fifth Session, Supp. No. 10 (A/35/10) (1980) p. 65.

55. Note in particular the ILC's commentary to Art. 23, ILC Yearbook 1978, vol. 2, part 2, pp. 82–3, para. 6: “However, occurrence of the event is not the only condition specifically stipulated for the existence of a breach of an international obligation requiring the State to achieve the result of preventing the occurrence of that event. 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 R. Ago, Seventh Report of State Responsibility, ILC Yearbook 1978, vol. 2, part 1, p. 31, at p. 32, para. 3.

Despite these clear references to liability as the consequence of a violation of a contextually determined due diligence standard, Prof. Zemanek arrives at the surprising conclusion that Art. 23 reflects a standard of liability based on pure causality: Zemanek, K., “Schuld- und Erfolgshaftung im Entwurf der Völkerrechtskommission iiber Staatenverantwortlichkeit”, in Diez, E. et al. , eds., Festschrift für Rudolf Bindschedler (1980) p. 315, at p. 331.Google Scholar

56. Supra n. 16, at p. 1905.

57. Cf., the preamble and Art. I of the compromis, ibid. p. 1907. Cf., further, the Note of 17 February 1934, of the Canadian Secretary of State for External Affairs to the American Minister in Ottawa, Foreign Relations of the United States (1934) vol. 1, p. 898, at pp. 899–900Google Scholar; and Note of 17 November 1934, of the Canadian Prime Minister to the US Under-Secretary of State, ibid. p. 958, at p. 961.

58. This follows from the fact that the transboundary flow of harmful pollutants was well known to the Canadian authorities, hence represented a clear case of intentional transboundary harm; and, as the tribunal stated, “under international law … no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of a serious consequence …”: supra n. 16, at p. 1965. See also Riphagen, Preliminary Report, supra n. 37, at p. 15, para. 35.

59. See 3 RIAA, p. 1965; and the tribunal's finding that “[a]part from the undertakings in the Convention, it … [was] the duty of the Government of … Canada to see to it that its conduct should be in conformity with the obligation of … [Canada] under international law as herein determined”: ibid. pp. 1965–6.

60. “[I]f any damage … shall occur in the future, whether through failure on the part of the Smelter to comply with regulations herein prescribed or notwithstanding the maintenance of the regime, an indemnity shall be paid”: Id. at p. 1980. See also Quentin-Baxter, Second Report, supra n. 15, at p. 21, para. 39.

61. Examples in point include treaties that provide only for the private actor's liability as well as some that provide for State liability exclusively or on an a basis subsidiary to the private actor's liability: The Convention for the Unification of Certain Rules Relating to Damages Caused by Aircraft to Third Parties on the Surface, text in: Foreign Relations of the United States (1933) vol. 1, p. 968Google Scholar; Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 310 UNTS, p. 182; Convention on Third Party Liability in the Field of Nuclear Energy, 1960, text in 55 AJIL (1961) p. 1082; Vienna Convention on Civil Liability for Nuclear Damage, text in 2 ILM (1963) p. 727; Convention on the Liability in the Field of Maritime Carriage of Nuclear Materials, 1971, text in 11 ILM (1972) p. 277; International Convention on Civil Liability for Oil Pollution Damage, 1969, text in 9 ILM (1970) p. 45; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, text in 11 ILM (1972) p. 284; Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration and Exploitation of Seabed Mineral Resources, 1976, text in 16 ILM (1977) p. 1450; and the 1972 Convention on International Liability for Damage Caused by Space Objects, text in 10 ILM (1971) p. 965. There also exists a number of bilateral agreements imposing strict liability with regard to accidents from nuclear vessel operations, etc.

62. For examples of a fledgling extra-conventional State practice, see, e.g., Handl, loc. cit., n. 9, at pp. 543–8; and UN Secretariat, Survey of State Practice Relevant to International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. ST/LEG/15 (1984) pp. 282–9.

63. UN Doc. A/CONF.13/L.53 (1958); and UN Doc. A/CONF.62/122 (1982), text in 21 ILM (1982) p. 1261.

64. Reasonable grounds for suspicion that the merchant vessel is engaged in any of these activities, according to Art. 22, para. 1, justify the boarding.

65. Thus Sørensen, M., “Principes de droit international public”, 101 Hague Recueil (1960) p. 221Google Scholar. See also Randelzhofer, loc. cit., n. 20, at pp. 49–50. Note, however, Quadri's argument that, apart from the obvious case of a warship boarding a foreign vessel without reasonable grounds for suspicion, liability for loss despite reasonable suspicions denotes liability for an internationally wrongful act: Quadri, R., Diritto internazionale pubblico, 5th edn. (1968) pp. 591-2Google Scholar. He bases this conclusion on the ILC's commentary to Art. 22, para. 3 in which the obligation to render compensation is characterized as a “severe penalty”. But contrary to his claim that according to the commentary this is a penalty for an abuse of right committed, the commentary clearly refers to the justifiability of such a penalty “in order to prevent the right of visit being abused”: ILC Yearbook 1956, vol. 2, p. 284 (emphasis added).

66. See the ILC's commentary to Art. 35 of the articles on State responsibility (part. 1), in Report of the ILC on the Work of its Thirty-Second Session, ILC Yearbook 1980, vol. 2, part 2, p. 1, at p. 61.

67. For the text of the articles, see ibid. p. 33, and infra, in this volume.

68. See Article 35 of the draft articles, ibid. p. 34, and infra, in this volume.

69. Cf., also J.A. Frowein, in Staatenverantwortlichkeit, loc. cit., n. 20, at p. 81.

70. See in particular Randelzhofer, ibid. pp. 57–61, in conjunction with pp. 71–2.

71. See also H. Stoll, in Staatenverantwortlichkeit, loc. cit., n. 20, at pp. 101–2.

72. See Quentin-Baxter, Fourth Report, supra n. 3, at pp. 10–11, paras. 14–15. Note, however, that there is little apparent support within either the Commission or the Sixth Committee of the General Assembly for launching such a study in the near future.

73. Report of the International Law Commission on the Work of its Thirty-Sixth Session, GAOR, Thirty-Ninth Sess., Suppl. No. 10 (A/39/10) (1984) p. 174, para. 223.

74. To this effect see, e.g., the statement of P. Reuter at the 1848th meeting of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1848 (1984) p. 17.

75. See supra text at nn. 61–62.

76. A definition of the scope of the topic offered by the Special Rapporteur might seem to be more far reaching in that it refers to “conduct of activities (which) entails an element of transboundary harm, or the risk of such harm”: Quentin-Baxter, Fourth Report, supra n. 3, at p. 2, para. 2. But in a different context the Rapporteur himself acknowledged the crucial relevance of “foreseeability” when he noted that truly unforeseeable harm posed a “subsidiary question, quite distinct from the main question to be dealt with, and it could be deferred until a proper place had been found for it within the larger framework. At that time Governments could be asked for their views on the question”: Quentin-Baxter, statement at the 1686th meeting of the ILC, ILC Yearbook 1981, vol. 1, p. 223, para. 10. See also statement of Sir Ian Sinclair at the 1849th meeting of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1849 (1984) p. 10. Of course, “foreseeability” of harm is the very essence of the principle of strict liability. For details, see infra text at nn. 99–102.

77. Brownlie, op cit., n. 29; see also Brownlie, I., Principles of Public International Law, 3rd edn. (1979) p. 477Google Scholar, and Menzel, E. and Ipsen, K., Völkerrecht, 2nd edn. (1979) p. 356.Google Scholar

78. This was also F.V. Garcia-Amador's assumption. In discussing “the special situation created by the progressive application of modern technology to industrial and other activities” in his capacity as the International Law Commmission's first Special Rapporteur on the topic of State responsibility, he noted that the transnationally hazardous activities concerned implied, “by their very nature and by their harmful consequences, the abusive and unlawful exercise of a right”: F.V. Garcia-Amador, Fifth Report on State Responsibility, ILC Yearbook 1960, vol. 2, p. 41, at p. 65, para. 94.

79. At least at one point Prof. Reuter seems to have been among the proponents of this view. Reuter, P., “Le dommage comme condition de la responsabilité internationale”, in Estudios de Derecho Internacional Homenaje al Prof. Miaja de la Muela, vol. 2 (1979) p. 837, at p. 840Google Scholar; “En effet la notion de risque exceptionnel, de ‘chose dangereuse’ met en cause une présomption de fait illicite, présomption destinée a protéger les tiers en presence des oeuvres d'une civilisation technicienne qui laisserait sinon les victimes désarmées”. See also Seidl-Hohenveldern, I., Völkerrecht, 5th edn. (1984) p. 356.Google Scholar

80. For a critical view of the underlying idea of so-called “conditional fault”, see also L.F.E. Goldie, this volume.

81. See, e.g., Art. 6 of Part II of the draft articles on State responsibility, in Riphagen, Fifth Report on Content, Forms and Degrees of State Responsibility, UN Doc. A/CN.4/380 (1984) p. 6; and Graefrath, B., “Responsibility and Damages Caused: Relationship between Responsibility and Damages”, 185 Hague Recueil (1984) p. 9Google Scholar. Cf., also R.Q. Quentin-Baxter, Preliminary Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/334/Add. 2 (1980) p. 5, para. 60 (also in ILC Yearbook 1980, vol. 2, part 1, p. 247).

82. See also Quentin-Baxter, Fourth Report, supra n. 3, at nn. 1–2, para. 2: “… the [liability] topic is concerned with the regulation of activities which are in principle useful and legitimate, and should therefore be saved from prohibition, even though the conduct of these activities entails an element of transboundary harm, or the risk of such harm”.

83. Caubet, C.G., “Le droit international en quête d'une responsabilité pour les dommages résultants d'activités qu'il n'interdit pas”, 29 AFDI (1983) p. 99.CrossRefGoogle Scholar

84. Id., at pp. 109–112.

85. See Quentin-Baxter, Fourth Report, supra n. 3, at pp. 41–2, para. 54.

86. Caubet, loc. cit., n. 83, at pp. 107–108.

87. Note in this context that the Canadian and Australian delegations to the OECD Transfrontier Pollution Group and the Environment Committee have supported a pure causality theory of liability for transboundary harm: see OECD Reports on Responsibility and Liability of States in Relation to Transfrontier Pollution, text in 13 Env. L. and Pol. (1984) pp. 122–5. See also, Gündling, L., “Verantwortlichkeit der Staaten für grenzüberschreitende Umweltbeeinträchtigungen”, 45 ZaöRV (1985) p. 265Google Scholar, who advocates liability irrespective of wrongfulness for transboundary environmental harm de lege ferenda; cf., also Rest, A., Internationaler Umweltschutz und Haftung (1978) p. 34Google Scholar, and Schneider, J., World Public Order of the Environment (1979) p. 164.Google Scholar

88. Thus Quentin-Baxter, Second Report (Add. 1), supra n. 15, at p. 12, para. 59. But note, e.g., Lord Radcliffe in Bolton v. Stone [1951] AC 850.

89. Cf., Keeton, R. and O'Connell, J., Basic Protection of the Traffic Victim (1965) p. 242Google 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 at court, loss is not compensated in the sense that it is somehow made to disappear. It is only shifted …”

90. See, e.g., von Münch, I., Das völkerrechtliche Delikt (1963) p. 169.Google Scholar

91. For details see infra text at nn. 109–116.

92. Admittedly, it has been claimed that a “very small element of pure causality … supplements the duty to … repair foreseeable loss or injury”: Report of the International Law Commission on the Work of its Thirty-Fourth Session, UN Doc. A/CN.4/L.347 (1982) p. 15, para. 23. But as will become evident in a moment, this element is more apparent than real in view of the fact that the Schematic Outline leaves a wide margin of appreciation to the parties themselves as regards determination of the existence of such a duty.

93. For details see Handl, G., “International Liability of States for Marine Pollution”, 21 Can. YIL (1983) p. 85, at pp. 105–107.Google Scholar

94. Reference here is in particular to the major legal systems virtually all of which feature liability irrespective of fault for harm due to abnormally dangerous activities, sources of increased danger, etc. For details 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, UN, 1979)Google Scholar; and Will, M., Quellen erhöhter Gefahr (1980)Google Scholar. As for the argument that strict liability therefore represents a general principle of law applicable to harm due to the miscarriage of a recognizable transnationally hazardous activity in general, see, e.g., Hardy, M.J.L., “Nuclear Liability: The General Principles of Law and Further Proposals”, 36 BYIL (1960) p. 223, at p. 237Google Scholar; Kelson, J.M., “State Responsibility; the Abnormally Dangerous Activity” 13 Harvard ILJ (1972) p. 197, at p. 233Google Scholar; Cahier, Ph., “Le problème de la responsabilité pour risque en droit international”, in International Relations in a Changing World (1977) p. 409, at p. 428Google Scholar; and Handl, loc. cit., n. 93, at p. 100. For the assertion of a mere trend towards the emergence of such a principle, see Lammers, J.G., Pollution of International Watercourses: a Search of Substantive rules and Principles of Law (1984) pp. 657-8.Google Scholar

95. Of course, it has been argued that the realm of strict liability is “limited to … categories of cases in which damage could not be foreseen …”: Quentin-Baxter, statement at the 1685th meeting of the ILC, ILC Yearbook 1981, vol. 1, p. 217, para. 3. But this is hardly the essence of “strict liability”. In all those cases in which loss shifting is effected without regard to wrongfulness and which, by consensus, are referred to as examples of strict liability, such as in the previously cited conventional practice, foreseeability of harm, albeit not of the kind that will render the conduct negligent, provides a key rationale for the re-allocation of the loss. See infra text at nn. 99–101. Thus the very labels of “dangerous”, “ultrahazardous”, “source of increased danger”, etc. imply knowledge of a risk of harm. As to the central role of foreseeability in any strict liability system, see Calabresi, G. and Hirschhoff, J.T., “Towards a Test for Strict Liability in Torts”, 81 Yale LJ (1972) p. 1055.CrossRefGoogle Scholar

96. See supra n. 61.

97. As to the second part of the Trail Smelter decision, see supra text at nn. 59–60.

98. See supra n. 62.

99. See Jenks, C.W., “Liability for Ultra-Hazardous Activities in International Law”, 117 Hague Recueil (1966) p. 99, at p. 107Google Scholar. For a more detailed exposition, see Handl, loc. cit., n. 93, at pp. 97–9.

100. For further details, see, e.g., Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis (1970), p. 24.Google Scholar

101. See instead Handl, loc. cit., n. 93, at pp. 98–9.

102. The argument made, inter alia, by Randelzhofer, loc. cit., n. 20, at pp. 69–70, according to which imposition of strict liability does not provide a safety incentive as it is the very characteristic of the typical strict liability situation that the transnational risk involved cannot be eliminated, is unpersuasive. Faced with the certainty of liability in the event of transnational harm, the acting State is likely to adjust its conduct in accordance with an analysis that weighs potential liabilities against the benefits of conducting “business-as-usual”. Under a regime pursuant to which losses are only shifted when the injurious State conduct is established to be wrongful, the State's prospect of having to bear the costs of repairing the transnational damage is much less certain. The acting State accordingly is likely to perform a less rigorous comparable analysis and/or act less rigorously on it. The shift from liability based on “fault” to strict liability thus clearly connotes an at least potential improvement in overall safety. This conclusion certainly can be substantiated by ample references to analogous developments in domestic legal systems.

103. Provided, of course, that the harm inflicted reaches the minimum threshold of being “significant” and consequently amounts to an infringement of the affected State's international rights.

104. Cf., in this context GA Res. 34'66 of 5 December 1979 which, in response to the crash of COSMOS 954, set in motion a process of review of the legal aspects of using nuclear power sources for space satellites. The underlying issue was, of course, whether nuclear-powered satellites might pose a significant risk in terms both of a relatively high probability of their incomplete disintegration upon re-entry into the earth's atmosphere and of the potential consequences of the crash of such space debris, i.e., the radioactive contamination of land and natural resources. Presently the international legal debate on nuclear power sources in outer space focuses on whether States should specifically be required to notify countries potentially at risk of an impending re-entry and on whether State liability for damage might need to be made more explicit, or possibly be expanded. For details, see, e.g., “Draft Report of the Chairman of the Workgroup on Agenda Item 5 (Consideration of the Possibility of Supplementing Norms of International Law Relevant to the Use of Nuclear Power Sources in Outer Space”, in Report of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space on the Work of its Second Session, UN Doc. A/AC.105/320 (1983) pp. 22–36; and Report of the Committee on the Peaceful Uses of Outer Space, GAOR, Thirty-Ninth Session, Suppl. No. 20 (A/39/20) (1984) p. 10.

105. Quentin-Baxer, Fourth Report, supra n. 3, p. 4, para. 6.

106. See supra n. 11.

107. See Quentin-Baxter, Fourth Report, supra n. 3, at p. 5, para. 7.

108. See, e.g., Quentin-Baxter's comments in the ILC debates on the topic, International Law Commission, 35th Session, Provisional Summary Record, UN Doc. A/CN.4/SR. 1801 (1983) p. 16.

109. See, e.g., Quentin-Baxter, Fourth Report, supra n. 3, at p. 4, para. 6.

110. As to the crucial role of this duty, see Section 2, paras. 1–2, and Section 3 of the Schematic Outline, supra n. 8, at pp. 2–3.

111. See, e.g., Quentin-Baxter, Third Report, supra n. 8, at p. 19, para. 41.

112. As to the theoretical foundations of the principle of strict liability, see infra chapter 4.

113. See Section 5, para. 3 and Section 4, paras. 2–3 of the Schematic Outline, supra n. 8, at pp. 4–5.

114. Id.

115. Thus “shared expectations” are to include expectations which “(a) have been expressed in correspondence or other exchanges between the States concerned, or in so far as there are no such expectations, (b) can be implied from common legislative or other standards or patterns of conduct normally observed by the States concerned, or any regional or other grouping to which they belong, or in the international community”: Section 4, para. 4, ibid. 4. Moreover, account is to, or may, be taken of the reasonableness of the conduct of the parties as well as of factors relevant to a balancing of interests: see Section 3, para. 3, ibid.

116. In certain cases, of course, this reference to shared expectations could and, indeed, should lead to the application of the principle of strict liability.

117. But note Quentin-Baxter's intrinsically affirmative view of the role of strict liability as, e.g., evident in the Fourth Report, op. cit., n. 3, at p. 4, para. 6: “(I)t seems self-evident that, if a low risk of very serious transboundary loss or injury must be tolerated as the price of maintaining a beneficial activity, the occurrence of that loss or injury should give rise to a right of reparation as ample as if the loss or injury had been attributable to a wrongful act of the source State.”

118. To this effect see Quentin-Baxter, Fifth Report (Add. 1), supra n. 38, at pp. 9–10, paras. 46–47.

119. Cf., in this respect Quentin-Baxter, statement at the 1801st meeting of the ILC, Provisional Summary Record, UN Doc. A/CN.4/SR.1801 (1983) p. 17.

120. How frequently such a failure might actually be encountered is an open question, given the weak normative incentives towards compliance with the procedural obligations. For further details, see infra text at n. 124.

121. This is not to suggest, however, that the Rapporteur's approach is altogether out of line with State practice. Indeed, there is a noticeable trend towards de-emphasizing the notion of liability as a strict legal obligation, i.e., as in advance defined legal consequences that arise automatically upon a factual finding as to the existence of certain elements in a given situation of transboundary harm. Note in this context Kiss, A.Ch., “L'état du droit de l'environment en 1981: Problèmes et solutions”, 108 Clunet (1981) p. 499, at p. 518Google Scholar. But apart from the specific implications for the situation here under review, the question arises whether it is not part of a wider, and possibly problematical phenomenon that has been characterized as a trend towards relative normativity. See Weil, P., “Towards Relative Normativity in International Law”, 77 AJIL (1983) p. 413CrossRefGoogle Scholar; and cf., Schwarzenberger, G., “The Credibility of International Law”, 37 YWA (1983) p. 292.Google Scholar

122. The proposed rules do not provide for compulsory third-party participation in establishing the disputed facts of a case should the principal parties themselves fail to reach agreement. See Section 7, Part III of the Schematic Ouline, supra n. 8, at p. 7. Nor do they envisage compulsory adjudication or arbitration as a last resort alternative to settlement through negotiations.

123. Expressions of a similar concern within the Commission are summarized in the Report of the International Law Commission on the Work of its Thirty-Fourth Session, UN Doc. A/CN.4/L.347/Add.1 (1982) p. 4, para. 43; see also M.C.W. Pinto, this volume.

124. Thus the most striking feature of the proposed regime is “that no deviation from the rules it prescribes will engage the responsibility of the State from wrongfulness, except ultimate failure, in case of loss or injury, to make the reparation that may then be required. In a sense, therefore, the whole of this topic, up to that final breakdown … deals with a conciliation procedure …”. Quentin-Baxter, Third Report, supra n. 8, at p. 16, para. 31. In other words, it seems that only until and unless some understanding has been reached among the parties as to the nature and scope of reparation due, will inaction by the source State in meeting this liquidated obligation expose the latter to an international legal sanction. Prior to this point which obviously cannot be reached without the source State's co-operation, non-compliance with the proposed rules will not entail penalties. It is true that at one point the Rapporteur notes that the consequences of a failure of this sort, “if unreasonable, would be to leave the source State with an unsettled obligation for any losses, injuries or adverse effects caused by the position it has taken“: Statement of Quentin Baxter at the 1848th meeeting of the International Law Commission, Provisional Summary Record, UN Doc. A/CN.4/SR.1848 (1984) p. 8. But as other statements suggest, this is not to be taken as an indication that strict liability would apply automatically in such a situation, “The States concerned are compelled by nothing except the logic of their situations, the persuasiveness of the guiding principles in section 5, and the need to pay for damage done if no better arrangement can be worked out”: Third Report, p. 19, par. 41.

For expressions of concern over the “non-compulsory nature” of the proposed rules, see, e.g., statement of C. Malek at the 1848th meeting of the International Law Commission, Provisional Summary Record, UN Doc. A/CN.4/SR.1848 (1984) p. 14. As to the problemetical nature of Quentin-Baxter's view that violations of the obligations embodied in these rules would not give rise to State responsibility, see supra n. 9.

125. Cf., e.g., Dupuy, op. cit., n. 26, at pp. 206–9; see also Gündling, loc. cit., n. 87.

126. Quentin-Baxter, Second Report, supra n. 15, at p. 7, paras. 11–12.

127. Thus if, for example, an accident of the kind experienced at Bhopal, India, had produced corresponding transnational environmental and health effects, a source State would have been in no position really to disclaim internationally knowledge of the plant's risk potential. On the question of this threshold for the application of the principle of strict liability, see further Handl, loc. cit., n. 9, at pp. 554–6.

128. Given a consistent pattern of State practice and the endorsement by resolutions of international organizations today the duty of prior information and consultation is probably part of customary international law. See, e.g., comment (b) to Section 601 (State Obligations with Respect to the Environment of Other States and the Common Environment), American Law Institute, Restatement of the Foreign Relations Law of the United States (revised), tentative draft No. 4 (1983) pp. 173–174Google Scholar. Arguably, the same can be said of the assessment of the nature and scope of transnational effects prior to engagement in conduct that is suspected of posing a risk of transnational harm. See Handl, G., “Some International Legal Implications of the International Transfer of Hazardous Technology”, ASIL Proceedings (1985)Google Scholar. There is, moreover, growing evidence pointing towards the emergence of a duty to set up contingency plans, jointly or in co-ordination with the State(s) at risk, that include provisions for transborder communication of information relevant in an emergency situation. In this respect see in particular Bruha, Th., “Internationale Regelungen zum Schutz vor technisch-industriellen Umweltnotfällen”, 44 ZaöRV (1984) p. 1, at pp. 60-1Google Scholar. He concludes that in the case of ultrahazardous activities in border areas, States are already under a customary international obligation of this sort.

129. An agreement on reparation in the event of the realization of the risk, by contrast, is most unlikely. Most understandings with regard to transnationally hazardous activities merely provide for information exchange, consultations and emergency assistance.

130. As to the continuing strong opposition to the principle of strict liability as a feature of general international law, see supra n. 20.

131. See supra text at n. 109.

132. Given the present limitations of space, it would simply be impossible to do justice to what is, after all, a very complex and all too often too quickly dismissed question.

133. Randelzhofer, loc. cit., n. 20, at p. 73 (translation provided).

134. A case in point may be Rudolf who, on the one hand, opposes attempts at formulating a general principle of liability as futile. On the other hand, he acknowledges the relevance of equitable considerations as a justification of loss shifting: loc. cit., n. 35, p. 106.

135. See, e.g., Rudolf, W., “Haftung für rechtmässiges Verhalten im Völkerrecht”, in Damran, J. et al. (eds.), Festschrift für Otto Mühl (1981) p. 535, at p. 551Google Scholar; and cf., Goldie, this volume.

136. “In practice States were sometimes prepared to make good loss and damage by the payment of a sum of money which they were not prepared to admit was made in compensation. The State which accepted what were therefore termed ex gratia payments did so in the knowledge that such payments were intended as compensation. In that way yesterday's ex gratia payment became tomorrow's obligation”: Statement of S. Sucharitkul at the 1686th meeting of the ILC, ILC Yearbook 1981, vol. 1, p. 224, para. 24; and cf., Weston, B.H., “The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth”, 75 AJIL (1981) p. 437, at p. 454.CrossRefGoogle Scholar

137. Continental Shelf (Tunesia/Libya) case, ICJ Rep. (1982) p. 18. at p. 60, para. 71.

138. Note in this context Riphagen's characterization of the use of the word “equity” as a testimonium paupertatis: statement at the 1631st meeting of the ILC, ILC Yearbook 1980, vol. 1, p. 245, para. 28.

139. See Report of the International Law Commission on the Work of its Thirty-Fifth Session, UN GAOR, Thirty-Eighth Sess., Suppl. No. 10 (A/38/10) (1983) p. 197.

140. Of course, the proposed rules' core obligation, the duty to co-operate is itself rooted in the principle of international solidarity. See also Quentin-Baxter's statement at the 1630th meeting of the ILC, ILC Yearbook 1980, vol. 1, p. 243, para. 19.

141. Kimminich, O., “Völkerrechtliche Haftung für das Handeln Privater im Bereich des internationalen Umweltschutzes’, 22 Archiv Vr (1984) p. 241, at p. 266.Google Scholar

142. See also Quadri, R., “Cours general de droit international public”, 113 Hague Recueil (1964) p. 237, at p. 469Google Scholar. And note that the concept of international solidarity is sometimes invoked, not, of course, to reinforce existing international rights and obligations but as the basis for an alternative allocation of the costs of controlling transboundary pollution, resulting in a “victimpays” situation. See Report of the Secretariat, “Possible Role of International Financial Transfers in Preventing and Controlling Transfrontier Pollution”, in OECD, Transfrontier Pollution and the Role of States (1981) p. 36, at p. 52.Google Scholar

143. See also Kimminich, supra n. 141, at p. 266.

144. Cf., also Goldie's notion of risk-creation as potential expropriation: Goldie, L.F.E., “Liability for Damage and Progressive Development of International Law”, 14 ICLQ (1965) p. 1189, at pp. 1213–1214.CrossRefGoogle Scholar

145. To this effect see, e.g., Pinto, this volume.