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Reflections on international liability for injurious consequences arising out of acts not prohibited by international law*

Published online by Cambridge University Press:  07 July 2009

M.C.W. Pinto
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Extract

News of the death in Wellington on 25 September 1984 of Robert Quentin Quentin-Baxter shocked his many friends attending the 39th session of the General Assembly of the United Nations. The traditional moment of silence was observed by the Sixth Committee, and many tributes followed, for Quentin's life had been one of dedicated and loyal service to his country and to the community of nations.

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. 17 - 48
Copyright
Copyright © T.M.C. Asser Press 1985

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References

1. Succeeding Mr. F.V. Garcia Amador as Special Rapporteur on State responsibility in 1963, Professor R. Ago presented his first report on the topic to the Commission at its 19th session in 1969. On the basis of successive reports by him, the Commission adopted between 1969 and 1980 a series of 35 draft articles on the responsibility of States for internationally wrongful acts. On the approach taken by the Commission, no attempt would be made to define the rules of international law which impose specific obligations on States — so called “primary” rules — but rather to formulate “secondary” rules, or rules that determine the legal consequences of the failure to fulfil obligations under “primary” rules. The latter work was conceived as divided into three main phases: first, a study of the origin of international responsibility in the internationally wrongful act of a State, a phase concluded by Professor Ago at the Commission's 32nd session in 1980; second, a study of the content, forms and degrees of that responsibility — the current focus of the Commission's work, under the guidance of Professor Willem Riphagen as Special Rapporteur; and third, a study of the settlement of disputes, and the “implementation” stage of the topic of international responsibility. For the articles adopted by the Commission, with commentaries, see volume II of successive Yearbooks of the Commission 1973–80.

2. ILC Yearbook 1979 vol. 2 part 2 pp. 106–136.

3. ILC Yearbook 1980 vol. 2 part 1 pp. 13–70. Pages 71–86 contain a list of the principal works cited in Professor Ago's reports to the Commission.

4. Op. cit., n. 2 pp. 106–109.

5. Op. cit., n. 3 vol. 2 part 2 pp. 61–2.

6. Eighth Report on State responsibility, A/CN.4/318/Add. 5, p. 17, para. 18.

7. Op. cit., n. 2 p. 133, para. 39.

8. Third Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, A/CN.4/360, para. 53, reproduced without any changes in: Fourth Report, A/CN.4/373 Annex.

9. Fifth Report, A/CN.4/383 and Add. 1.

10. Survey of State Practice Relevant to International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law (ST/LEG/15).

11. See Friedmann, W., The changing structure of international law (New York 1964) pp.89–90:Google Scholar

“The traditional system of international law regulates the rules of coexistence between sovereign states. It is essentially a collection of ‘don'ts, a vast though far from watertight network of protective umbrellas. States must not be interfered with in their sovereignty on land and such parts of the sea as are claimed as territorial waters, and in the air space above the land. They must now not be interfered with in the exclusive exploitation of the resources of the continental shelf. They are immune from jurisdiction by other states. Their citizens must be protected from arbitrary interference with their lives, properties, or other economic interests, even though the extent of this protection is now deeply controversial.

For the enforcement of this type of prohibitive and protective rules of conduct, the appropriate remedies are coercive sanctions, and in the absence of sanctions at the disposal of a supranational authority, the principal sanctions used by sovereign states against each other are war and reprisal, i.e., the traditional instruments of national sovereignty. (Reprisals may, of course, be economic as well as military).

But the immense intensification and amplification of the concerns for security, communication and welfare are producing a different and constantly growing type of international law, which develops principles and methods of co-operation. The implementation of many of these concerns is as yet in an embryonic stage”.

12. Fourth Report, A/CN.4/373, para. 31.

13. Preliminary Report, A/CN.4/334, paras. 10 et seq, and ILC Yearbook 1973 vol. 1, p. 211, para. 37.

14. Preliminary Report para. 10.

15. ILC Yearbook 1973 vol. 1, p. 211, para. 38. In the opinion of the Special Rapporteur: “In general, the textual evidence seems consistent with the premise on which the International Law Commission has acted: that is to say, the English terms ‘responsibility’ and ‘liability’ are mere facets of a single concept, rendered in French by the term ‘responsabilite’”. Preliminary Report, A/CN.4/334 p. 7.

16. Eric Partridge traces the word “respond” from the Hittite word “sipand”, to pour a libation, by way of the Greek “sponde”, a truce libation, to the Latin “spondere”, to promise solemnly. “Respondere” meant to undertake in return to perform one's part in a solemn engagement: Eric, Partridge, Origins: A Short Etymological Dictionary (New York 1983)Google Scholar. While words in English might well have acquired in the course of evolution meanings different from those of the Latin from which they derive, it seems that the term “responsibility” still comprehends the idea of an obligation arising as a result of some pre-existing condition orstatus or relationship, and is used in cases where that idea needs to be emphasized, rather than the plain idea of “liability”. “Liability”on the other hand, seems to convey the idea of being legally bound, without more. Derived from the Latin “ligare”, to bind, it would seem completely neutral as to the context of the binding, unless qualified by adjectives as in terms such as “contingent liability”, “strict liability”, “objective liability”, “absolute liability” and, more recently “direct liability”. Such adjectives are rarely used in qualifying the more complex term “responsibility” by which not merely the existence of an obligation but also something of a pre-existing context is expressed.

17. See below as to the positions taken by some industrialized States during negotiation of the Declaration of principles governing the sea-bed and the ocean floor and the subsoil thereof beyond the limits of national jurisdiction, and the Convention on the Law of the Sea.

18. E.g., Art. 7 of the Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies:

“Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies” (emphasis added).

19. “14. Every State shall have the responsibility to ensure that activities in the area, including those relating to its resources, whether undertaken by governmental agencies, or non-governmental entities or persons under its jurisdiction, or acting on its behalf, shall be carried out in conformity with the international régime to be established. The same responsibility applies to international organizations and their members for activities undertaken by such organizations or on their behalf. Damage caused by such activities shall entail liability” (emphasis added): General Assembly resolution 2749 (XXV), adopted on 17 December 1970, 108 in favour, none against, 14 abstentions.

20. Convention on the Law of the Sea, Annex III, Art. 4, Para. 4. Compare also the use of the terms “responsibility” and “liability” in the Outer Space Convention (supra, n.18). Art. 6 of that Convention refers to a State party's “international responsibility” for national activities in outer space”, while a separate article, Art. 7, would make a State party “internationally liable for damage” (emphasis added). Compare: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979, Article XIV; Convention on Liability for Damage Caused by Space Objects, 1972, Arts. II, IV, V and XXII, which uses the term “liability” only.

21. Hart, H.L.A. and Honoré, A.M., Causation in the Law (Oxford 1959) pp. 62-3 et seq.Google Scholar

22. For a study in depth of causation in legal theory, see Hart and Honoré, op.cit.pp. 79 et seq.

23. Abel, Richard L., “Torts” in David, Kairys (ed.)The Politics of Law (New York 1982) p. 190.Google Scholar

24. Ibid. p. 191; and for that writer's critique of “market deterrence”, or “The legal-economic rationale that presently dominates and shapes tort principles … which argues that the most efficient way to promote an optimum level of safety is to internalize accident costs by making those who negligently cause accidents legally liable for their consequences”, see pp. 190–3.

25. “… some connivance, or encouragement in promoting that misconduct, or those acts”. Grotius, De Jure Belli ac Pacis; Book II; Ch. XXI, ii. trans, Campbell, A.C., (The Universal Classics, New York 1901).Google Scholar

26. Anzilotti, D., Cours de droit international, French trans, by Gidel, G. (Paris 1929)Google Scholar, English trans. quoted in Seventh Report on State Responsibility by Mr. R. Ago, Special Rapporteur, para. 492, ILC Yearbook 1978 vol. 1 part 1 p. 191.

27. Bourquin, M., “Règles générale du droit de la paix”, 35 Hague Recueil (1931-I) (Paris 1932) p. 218Google Scholar, English trans, in Seventh Report on State Responsibility, ILC Yearbook 1978 vol. 2 part 1 p. 195.

28. R. Ago, Seventh Report, supra, n. 27, para. 499.

29. Preliminary Report A/CN.4/334, para. 15.

30. Ibid., Addendum 2, para. 60.

31. See Ibid. n. 8.

32. Fourth Report, A/CN.4/373, para. 69.

33. The change is reflected in the draft articles presented to the Commission in the Special Rapporteur's Fifth Report, A/CN.4/383, para. 1 (draft Art. 2 entitled “Use of terms”).

34. Schematic Outline, part I, Section 6, A/CN.4/373 Annex, pp. 5–6. Compare a discussion of theories of municipal law liability based on the “interests” protected, in Hart and Honoré, op. cit., n. 21, pp. 79 et seq.

35. Fifth Report, A/CN.4/383, paras. 30–32.

36. “International liability of States for marine pollution” 21 Can. YIL (1983) p. 85 et seqGoogle Scholar.(previously published in Diritto internazionale e protezione dell'ambiente marino, 1983). According to Handl,

“… the discernible trend toward internationally negotiated allocation of transnational losses has to be recognized as an undesirable development … For if any reasonable internalization of the costs of the transnationally hazardous activity is to be achieved between victim and polluting states, insistance on liability as a legal concept with a non-negotiable basic content is essential … For it is only upon a clear understanding of the central rôle that the concept of liability invariably plays in any system of transnational accident law, that a regime that would be optimal in terms both of prevention of and compensation for transnational marine pollution damage can be devised”(pp. 88–9).

For his summary of the elements of a “State's international accountability”, see pp. 115–116. For a discussion of Handl's views see the Special Rapporteur's Fourth Report, A/CN.4/373 at paras. 51–57. See also by the same author: “State liability for accidental transnational environmental damage by private persons”, 74 AJIL (1980) p. 525 et seq.Google Scholar

37. C.G. Caubet, Le droit international en quête d'une responsabilité pour les dommages résultant d'activités qu'il n'interdit pas, a paper submitted as a reportto the Centre for Research and Studies on International Law and International Relations of the Hague Academy of International Law, 1982 session (later published in 29 AFDI (1983) p. 99 et seq.), discussed by the Special Rapporteur in his Fourth Report, A/CN.4/373, in paras. 51–57.

38. Fourth Report, A/CN.4/373, para. 71.

39. “… neither a treaty régime nor an unregulated situation of long standing can constitute a barrier to economic, social, technological or legal change. A new norm of customary law — perhaps facilitated in its development by the patterns of regimes made pursuant to the themes of the present topic — may require such a change. It may also be required by the obligation to cooperate, upon a fair distribution of costs and benefits”. Fourth Report, A/CN.4/373, para. 30.

40. Schematic Outline, Section 7, part I, A/CN.4/373, Annex p.7.

41. Schematic Outline, Section 6, A/CN.4/373, Annex, pp. 5–6.

42. For some observations by the Special Rapporteur touching the theme of inter-dependence, see his Fifth Report, A/CN.4/383, paras. 15 et seq.

43. E.g., concerning dispute settlement provisions: Railway Traffic between Lithuania and Poland, PCIJ, Ser. A/B, No. 42, p. 116.

44. Schematic Outline, Section 2, A/CN.4/373, Annex, pp. 2–3.

45. Schematic Outline, Section 3, Ibid.

46. Id. Section 5.

47. Id. Section 6.

48. Id. Sections 7 and 8.

49. For an extensive survey (in the context of transnational pollution liability) of the needs of the victim, and methods of securing compensation in circumstances in which the existence of separate sovereignties offer formidable difficulties, see Caron, David D., “Liability for transnational pollution arising from offshore oil development: a methodological approach”, 10 Ecology Law Quarterly (1983) pp. 641 et seqGoogle Scholar. The author examines in turn an “International Law Method”, the demand for compensation occurring at the inter-State levei subject to international law; a “Transnational Litigation Method”, whereby compensation to victims of pollution might be assured through public conventions facilitating private suits under domestic laws; and a “Settlement Method” whereby private parties ornations might prospectively agree to an extrajudicial settlement of claims.

50. Schematic Outline, Section 4, para. 3.

51. Robert, Axelrod, The Evolution of Co-operation (New York 1984)Google Scholar: “The potential for cooperation arises when each player can help the other. The dilemma arises when giving this help is costly … The main results of Co-operation Theory are encouraging. They show that co-operation can get started by even a small cluster of individuals who are prepared to reciprocate co-operation, even in a world where no one else will co-operate. The analysis also shows that the two key requisites for co-operation to thrive are that the co-operation be based on reciprocity, and that the shadow of the future is important enough to make this reciprocity stable” (p. 173).

52. Axelrod, ibid. p. 130: “By binding people together in a long-term, multi-level game, organizations increase the number and importance of future interactions, and thereby promote the emergence of co-operation among groups too large to interact individually. This in turn leads to the evolution of organizations for the handling of larger and more complex issues”.

53. Compare Friedman, op cit., n. 11 pp. 61–2 (“Internatonal Law of Co-operation: Universal Concerns”):

“To [the] traditional sphere of diplomatic existence and the corresponding rules of international law, modern needs and developments have added many new areas expressing the need for positive co-operation which has to be implemented by international treaties and in many cases permanent international organizations. This move of international society, from an essentially negative code of rules of abstention to positive rules of co-operation, however fragmentary in the present state of world politics, is an evolution of immense significance for the principles and structure of international law”. As to the interdependence of the community of States and the development of community organization under the “Pressure of Interdependence”, see Clyde, Eagleton, International Government, 3rd edn. (New York 1957) pp. 18–21.Google Scholar

54. As Friedman, op cit., n. 11 p. 206 points out:

“The principle of unjust enrichment is specifically embodied in all modern civil law codifications…In the common law systems, where there is no systematic or theoretic equivalent of this notion, corresponding principles have been developed from a number of actions in quasi-contract as well as from certain principles of constructive trust … The principle that nobody should become enriched at the expense of another is one that could be very fruitfully applied to international law”. In Sea-land Service Inc. v. Iran and another the Iran-United States Claims Tribunal observed that the rule against unjust enrichment involved “a duty to compensate which is entirely reconcilable with the absence of any inherent unlawfulness of the acts in question”. (A report of this award will appear in the Iran-U.S. Claims Tribunal Reports, Grotius Publications, Cambridge, England).

55. Fourth Report, A/CN.4/373, para. 15.

56. E.g., the position of the developing countries set out in their statement circulated to the Council of GATT for discussion on 15 May 1984, quoted in Far Eastern Economic Review, 24 October 1984, p. 86.

57. E.g., the system of financial transfers to ACP States with the aim of remedying the harmful effects of the instability of their export earnings from commodities provided for (Title II)in the ACP-EEC Convention of Lomé signed on 28 February 1975, and twice re-negotiated (1979, 1984).

58. E.g., International Natural Rubber Agreement, 1979 (reproduced in Kapteyn, P.J.G. et al. , International Organization and Integration vol. 2, 2nd edn. (1984)Google Scholar) establishing a Buffer Stock for the purpose of market intervention to stabilize prices (Chapter VIII). See also Art. 52 on remedial measures to be taken where the interests of certain developing countries are adversely affected by measures taken in accordance with the Agreement.

59. CLOS, Arts. 150(h) and 151(10).

60. Ibid. Art. 150(f).

61. Ibid Art. 150(h).

62. Ibid. Art. 151(1)(a).

63. Ibid. Arts. 151(2) and (3).

64. Ibid. Arts. 151(10); 162(2)(m) and (n); 164.

65. Ibid. Arts. 187–191; Annex VI, Section 4.

66. Ibid. Art. 164(2).

67. UN General Assembly resolution 1803 (XVII).

68. Texaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Libya (1977) 53 ILR, p. 389 (Award, para. 87). See also the observations of Oscar Schachter on the 1982 draft of Section 712 of the American Law Institute's Restatement of the Foreign Relations Law of the United States (Revised) dealing with compensation, in 78 AJIL (1984) pp. 127 et seq. For a more critical view of the draft see Davis Robinson, ibid. pp. 176–178.

69. The famous words of a note from the United States Secretary of State Hull to the Mexican Government in 1940, on the expropriation by Mexico of foreign oil interests: Hackworth, G.H., Digest of International Law, vol. 3 (Washington 1942) p. 662Google Scholar. For a detailed discussionof the concept of permanent sovereignty over natural resources and its impact, inter alia, on standards of compensation, see Hossain, K. and Chowdhury, S.R., Permanent Sovereignty over Natural Resources in International Law (London 1984) pp. 57 et seq.Google Scholar