The Environment, Risk and Liability in International Law

The Environment, Risk and Liability in International Law

Legal Aspects of Sustainable Development General Editor

David Freestone This series publishes work on all aspects of the international legal dimensions of the concept of sustainable development. Its aim is to publish important works of scholarship on a range of relevant issues including conservation of natural resources, climate change, biodiversity loss and the role of international agreements, international organizations and state practice.

VOLUME 10

The titles published in this series are listed at the back of this volume, and also at: www.brill.nl/lasd

The Environment, Risk and Liability in International Law By

Julio Barboza

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Barboza, Julio. The environment, risk and liability in international law / by Julio Barboza. p. cm. -- (Legal aspects of sustainable development, 1875-0923 ; v. 10) Includes bibliographical references and index. ISBN 978-90-04-18878-5 (hardback : alk. paper) 1. Liability (Law) 2. Government liability (International law) 3. Environmental law, International. I. Title. K579.L5B368 2010 344.04’6--dc22 2010039518

ISSN 1875-0923 ISBN 978 90 04 18878 5 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

To my grandchildren, Pedro, Santiago and last but not least, Violeta.

Contents Series Editor’s Preface ...............................................................................xiii Preface .........................................................................................................xv Acknowledgments ..................................................................................... xix Table of Cases ............................................................................................ xxi Table of Treaties....................................................................................... xxiii Chapter I: Introduction .............................................................................. 1 1. Liability and Redress for Lawful Activities Entailing Risk ............................ 1 2. What Is International Liability About?............................................................. 3 3. Liability and Preventive Measures .................................................................... 4 4. Liability Regimes ................................................................................................. 4 4.1. Requirements to Establish Liability .......................................................... 5 4.2. Available Remedies ..................................................................................... 6 4.3. The Role of Fault ......................................................................................... 6 (a) Exceptions to Liability ........................................................................ 6 (b) Criteria to Determine Compensation .............................................. 7 5. Acts and Activities .............................................................................................. 7 6. Conclusion ........................................................................................................... 8 Chapter II: Risk and Harm, Prevention and Liability ................................ 9 1. Introduction ......................................................................................................... 9 2. The Concept of Risk ............................................................................................ 9 3. The Concepts of Harm and Damage ..............................................................10 3.1. The Threshold of Harm ............................................................................10 3.2. Causality and Harm.. ................................................................................11 4. Activities Entailing Risk (hazardous activities) vs. Activities that Cause Harm ...............................................................................................12 5. The Relationship Between Liability and “Prevention” and the Influence of Risk .........................................................................................14 6. The Obligation to Prevent and Abate Significant Harm as a Complement to Liability ...........................................................................15 6.1. Prevention Obligations to Abate Harm and to Minimize Risk ......................................................................................15 (a) Risk Assessment ................................................................................15 (b) Notification and Information ..........................................................17 (c) Consultations and Balance of Interests. .........................................18 7. Conclusion .........................................................................................................18

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Chapter III: Responsibility and Liability in International Law ............... 21 1. Introduction .......................................................................................................21 2. Responsibility and Liability in International Law.........................................21 2.1. Responsibility and Liability: the Use of Both Terms ............................22 2.2. More on the Meaning of Certain Terms ................................................24 (a) Objective Liability .............................................................................24 (b) Strict Liability ....................................................................................25 (c) Absolute Liability ..............................................................................26 (d) Sine delicto Liability ..........................................................................26 (e) Responsabilité pour risque (Risk Liability) .....................................26 3. Liability Governed by Primary Norms...........................................................27 4. Distinctive Features of Liability.......................................................................28 5. Conclusions........................................................................................................28 Chapter IV: Conventional Law ................................................................. 31 1. Civil Liability Regimes in International Law .................................................31 2. Common Features of Conventional Law .......................................................32 2.1. Identification of Liable Parties: Channelling of Liability .....................32 2.2. Flexibility of Causal Links .......................................................................33 (a) Multiple Causation ...........................................................................34 (b) Scientific Uncertainty .......................................................................34 (c) Intertemporal Harm .........................................................................34 2.3. Liability.......................................................................................................35 2.4. Liability Caps .............................................................................................36 2.5. Layered Liability and Compensation Funds .........................................37 2.6. State Liability .............................................................................................38 2.7. The Obligation to Contract Insurance ...................................................39 2.8. Limited Exceptions to Liability ...............................................................40 3. Conclusion .........................................................................................................41 Chapter V: Other Aspects of International Practice ................................ 45 1. Introduction .......................................................................................................45 2. Reparation of Transboundary Harm Caused by Hazardous Activities ....................................................................................45 3. Some Cases to the Point ...................................................................................46 3.1. A Seminal Decision: the Trail Smelter Case (a Noxious Activity Transformed into a Hazardous One?) ....................................47 3.2. Cases of Wrongful Conduct for Lack of Due Diligence ......................50 (a) The Alabama Case.............................................................................50 (b) The Corfu Channel Case ..................................................................51 (c) The Sandoz Chemical Accident.......................................................52

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3.3. Invocation of a Treaty and of a General Principle of Law ...................53 (a) The Gut Dam Case ............................................................................53 (b) The Cherry Point Oil Spill, 1972 .....................................................54 (c) The “Cosmos” Incident.....................................................................54 3. 4. Ex-gratia and Other Payments or Government Commitments ........55 (a) Nuclear Tests in the Marshall Islands .............................................55 (b) Rongelap Atoll ...................................................................................55 (c) The Fukuyu Maru Fishing Vessel ....................................................56 (d) The River Mura Incident ..................................................................57 (e) The Colorado River Salinity Dispute ..............................................57 (f) The Tanker Juliana, 1971 ..................................................................58 (g) The Japanese Ship Showa Maru, 1975 ............................................58 3.5. Reservation of Rights and Invocation of Responsibility: Other Cases ....................................................................58 (a) France-Switzerland Border, 1892 ....................................................58 (b) Arcisate, Italy .....................................................................................58 (c) The Beaufort Sea Prospection .........................................................59 (d) A Mexican Highway .........................................................................59 (e) The Rose Street Canal .......................................................................59 (f) French and American Nuclear Tests in the Pacific and the Cannikin Nuclear Test in Alaska ..............................................59 (g) Peyton Packing and Casuco, 1961 ..................................................59 (h) A Belgian Refinery ............................................................................60 (i) Nuclear Reactor in Dukovany .........................................................60 3.6. The United Nations Compensation Commission (UNCC) ................60 3.7. The IXTOC I blowout ..............................................................................61 4. Some Conclusions on the Cases Examined ...................................................62 5. Transboundary Damage in International Law: the Role of the State ..........................................................................................64 5.1. Learned Opinion.......................................................................................64 (a) Doctrines in Favor of the Existence or Emergence of a Principle of Liability Sine Delicto ............................................64 (i) The Abuse of Rights Doctrine. .................................................64 (ii) Ultra-Hazardous Activities: the Protection of the Environment........................................................................65 (b) Positions Contrary to Liability ........................................................68 6. Conclusion .......................................................................................................71 Chapter VI: The Development of the Subject at the International Law Commission. ................................................................. 73 1. Introduction.....................................................................................................73

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2. How the Commission Works ........................................................................74 2.1. The Line Followed by the Commission .............................................75 3. The Successive Drafts .....................................................................................78 4. Quentin-Baxter’s Conception........................................................................78 5. The Issues of the Subject ................................................................................81 5.1. Prevention..............................................................................................81 5.2. Prevention and Liability on Different Heads ....................................82 5.3. Scope of the Topic.................................................................................83 (a) Physical Consequences .................................................................83 (b) Situations ........................................................................................83 (c) The Environment ...........................................................................84 (d) Activities of Harmful Effects (Activities that Cause Damages) ............................................................................85 (e) Harm to the Global Commons ....................................................87 (f) The List of Activities ......................................................................88 6. Attribution (of Acts or of Consequences?) to the State .............................89 6.1. Attribution and Appreciable Risk .......................................................90 7. The Balance of Interests Test .........................................................................91 8. The Risk ............................................................................................................92 9. Harm (damage) ...............................................................................................95 9.1. The Items of Compensable Damage...................................................97 9.2. The Threshold of Damage....................................................................99 10. Liability ...........................................................................................................102 10.1. Why Civil Liability..............................................................................103 11. The Principles ................................................................................................104 12. The Three Stages Corresponding to the First and Second Special Rapporteurs ........................................................................106 12.1. Quentin-Baxter’s Schematic Outline................................................107 (a) Prevention ....................................................................................107 (b) Liability .........................................................................................107 (c) Overview of the Outline .............................................................107 12.2. The Regime of the Second Special Rapporteur’s Tenth Report ........................................................................................108 13. The 1996 Working Group ............................................................................109 14. The 1996 Draft ...............................................................................................110 14.1. The scope of the Topic........................................................................110 14.2. The Principles ......................................................................................111 (a) The Principle of Prevention: Freedom of Action of States and the Limits Thereto ...................................111 (b) Liability .........................................................................................112

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(c) The Principle of Non-Discrimination and the Domestic Channel ................................................................114 14.3. Interstate Negotiations .......................................................................115 14.4. The Unity of the Subject: the Title ...................................................116 15. Concluding Remarks ....................................................................................116 Chapter VII. The Development in the International Law Commission: Consideration of the Topic since 1997. ...... 119 1. The 1997 Group.............................................................................................119 2. The Scope of the Topic .................................................................................120 2.1. The 1996 Articles: Hazardous Activities ............................................120 2.2. The List of Activities .............................................................................120 3. The Principles ................................................................................................121 3.1. The Principles in the 1996 Draft .........................................................121 3.2. Later Developments .............................................................................121 4. The Principle of Prevention .........................................................................122 4.1. Later Developments in the Specific Obligations of Prevention: Defining their Legal Nature ...........................................122 (a) Impact Assessment .......................................................................123 (b) Procedure in the Absence of Notification..................................123 (c) Giving Information to the Public ...............................................124 (d) Consultation ..................................................................................124 (e) Emergency Preparedness .............................................................124 (f) Settlement of Disputes ..................................................................124 (g) Non-Discrimination .....................................................................124 5. Liability...........................................................................................................125 5.1. The Attack on Liability .........................................................................125 5.2. The Resurrection of Liability ...............................................................128 6. The Articles on Allocation of Loss..............................................................129 6.1. The Report of the 2004 Working Group ............................................132 6.2. The Scope of the Articles .....................................................................132 6.3. The Concept of Damage ......................................................................132 (a) The Threshold ................................................................................133 (b) Damage to Persons and Property ...............................................133 (c) Environmental Damage ...............................................................134 (d) The Injured Party ..........................................................................136 (e) The Intrinsic Value of the Environment ....................................137 6.4. Reparation .............................................................................................138 6.5. Paragraphs (iv) and (v) ........................................................................144 6.6. The Core Principles ..............................................................................145

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6.7. Response Measures...............................................................................147 6.8. International and Domestic Remedies ..............................................148 6.9. “Should”s and “shall”s ...........................................................................150 6.10. Development of Specific International Regimes ..............................151 6.11. Implementation.....................................................................................151 7. Present Status of Both “Prevention of Transboundary Harm from Hazardous Activities” and “Allocation of Loss in the Case of Such Harm”..................................................................................152 Chapter VIII: Conclusions ...................................................................... 153 1. The Issue ...........................................................................................................153 2. Risk....................................................................................................................154 3. The Role of the State in the Management of Risk .......................................156 4. The Balance of Interests Test..........................................................................158 5. The Articles of the International Law Commission ...................................159 6. Parting Thoughts .............................................................................................160 Annexes Annex I: Schematic Outline ...........................................................................161 Annex II: Text of the Draft Articles Provisionally Adopted by the Commission Before 1996. ...............................................................168 Annex III: Articles on Liability Proposed in the Tenth Report of the Special Raporteur, Mr Julio Barboza.......................................173 Annex IV: Draft Articles Proposed by the 1996 Working Group. ................176 Annex V: Prevention of Transboundary Harm from Hazardous Activities (2001 Articles).................................................................182 Annex VI: Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities. .....189 Bibliography ..........................................................................................................193 Index ......................................................................................................................199

Series Editor’s Preface I am pleased to include this work by Professor Julio Barboza as the tenth volume in the Martinus Nijhoff series on Legal Aspects of Sustainable Development published under my general editorship. The aim of this series is to publish works at the cutting edge of legal scholarship that address both the practical and the theoretical aspects of this important concept. Professor Barboza’s very lucid exposition of the basic concepts of risk, harm, responsibility and liability under international law provides an excellent introduction to his consideration of relevant treaty law and state practice and of the work of the International Law Commission (ILC). The work also reproduces in its annexes some of the key texts adopted by the ILC on this subject. Professor Barboza is uniquely qualified to write on this. He is a former member of the International Law Commission and was from 1985 to 1996 its Second Rapporteur (after Professor Quentin-Baxter) on the issue of ‘International Liability For Injurious Consequences Arising Out Of Acts Not Prohibited By International Law.’ This work was completed a month before the disastrous oil spill in the Gulf of Mexico from the BP drilling rig Deepwater Horizon. For that reason the Gulf incident is not referred to in this work, but it is worth recalling Barboza’s prescient words in his own Preface where he writes … ‘modern technologies have helped increase risks by introducing hazardous but socially useful activities and now nature itself feels the threat of human presence and action.’ Of course, in an era of anthropogenic induced climate change largely resulting from the unsustainable use of fossil fuels it is perhaps arguable whether oil drilling in very deep water constitutes a ‘socially useful activity’ within his definition, but the threat to nature and natural ecosystems that it poses have been demonstrated to us all too vividly. Deepwater Horizon shows us that this is a very real contemporary issue with which international law as well as national law needs to grapple. This volume provides us with the ideal tools to understand the issues more profoundly and the pointers as to what needs to be done in the future. David Freestone Washington DC

Preface Risk is, and has always been, an element of life—even in civilized society, where the individual lives with more protection from some of the threats of nature. In fact, modern technologies have helped increase risks by introducing hazardous but socially useful activities and now nature itself feels the threat of human presence and action. Hazardous but socially useful activities seem to belong to a grey area between legality and wrongfulness. They pose a problem to jurists and political leaders alike: is it legal to start an activity which may cause personal injury, and damage to property? That was the original question, but later on another was added regarding the common interests of Mankind: namely, is it legal to conduct an activity which is deleterious to the environment? From private to public interest, from individual concern to common concern—activities involving risk generate a growing preoccupation to our societies. Oliver W. Holmes put that question to himself and to his pupils in Lecture 1 at Harvard and gave us his answer: A man has an animal of known ferocious habits, which escapes and does his neighbor damage. He can prove that the animal escaped through no negligence of his, but still he is held liable. Why? It is, says the analytical jurist, because, although he was not negligent at the moment of escape, he was guilty of remote heedlessness, or negligence, or fault, in having such a creature at all. And one by whose fault damage is done ought to pay for it.1

That position is acceptable to those who believe that nothing but fault justifies responsibility, and here fault is something in the style of an original sin—a sort of fault which, by virtue of the damage caused, transforms itself from potential to actual. All this is, of course, a matter of controversy, but it is a fact that domestic legal systems accept the legality of hazardous activities on certain conditions, to wit, that all reasonable and available means or prevention should be employed by somebody or some entity deemed responsible for the operation of the activity, and that such person or entity should also be liable for compensating victims of damage. This relatively new type of accountability has been considered by some as a new form of liability—namely, a liability without fault—and by others as something different from the classical concept of responsibility—that is, a guarantee given by the person or entity conducting 1

O.W.Holmes, Jr. The Common Law (Lecture 1), Boston, 1881, p. 6.

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a hazardous activity as a pre-condition for its legality. Be that as it may—and the issue is dealt with in this book rather extensively—that legal technique of reparation for damage has been called something equivalent to “responsibility for risk”2 in most of the countries of civil law tradition and “strict liability” or “absolute liability” in Anglo-American law. René Lefeber calls it “sine delicto liability,” because the legal consequences of damage caused by hazardous activities follow without the breach of any obligation, and that is the name that we consider the most appropriate for it. There is a certain consensus among international lawyers, however, that general international law does not as yet admit such type of liability, whereas some others within that majority group believe that sine delicto liability, even if not a rule of positive law, is an emerging principle of general international law. But, on the contrary, conventional international law gives a considerable number of examples of such liability. And it is in the legal system created by those conventions where lies the close relationship of sine delicto liability with the protection of the environment: most conventions where such “liability” is applied have the protection of the environment as their main object and purpose. In general, those conventions regulate the risk to the environment inherent to a specific activity—like, for instance, the Conventions on nuclear activities, or the conventions referring to oil pollution, or those others regulating the risks created by activities in special regions, like Annex VI to the Protocol on Environmental Protection to the Antartic Treaty. Most of them are civil liability conventions—that is, intergovernmental agreements establishing liability on individuals under the domestic law of a State, either the State of origin (the normal situation) or some other State (normally, the affected State). There is one convention, the Convention on Space Objects, where sine delicto liability and responsibility for wrongful acts are exclusively centered on the State. That was due to the fact that the Parties to that Convention considered that only States should be in charge of spatial activities. In other instruments, like in the Paris Convention on nuclear liability, there is a subsidiary State liability and still in others there is no State participation. The point that we would like to make is that one of the important instruments of environment protection is sine delicto liability, as may easily be deduced from a quick glance at Chapter IV (Conventional Law). This is also the reason why we have submitted the present work to be included in a collection on sustainable development. Obviously, sustainable development is a key element in the protection of the environment and everything concerning

2

Or, better, sine delicto liability, since it is incurred without breach of obligation.

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environment protection is of high importance to sustainable development. We trust, therefore, that the present book will be useful to better understand why protocols on liability and redress are appended to most of the multilateral conventions on environment protection. The developments in the International Law Commission in relation to the topic of “International Liability for the Injurious Consequences of Acts Not Prohibited by International Law” will help to understand the doctrines behind sine delicto liability and also explain some of the circumstances surrounding the international debate on the codification and progressive development of the law in this field, as well as the difficulties surrounding the adoption by the international community of a general legal regulation of risk in international law.

Acknowledgments I would like to acknowledge here the invaluable help that in many ways I received from Soledad Aguilar, whose opinions and good judgment I consulted constantly. She had a special participation in Chapters II and IV. I would also like to render tribute to Professor Quentin Quentin-Baxter, who managed to keep his newborn subject alive in the International Law Commission, in spite of adverse circumstances.

Table of Cases Affaire du Lac Lanoux (Spain vs. France), 12 UNRRIA 281 (1957) (pp. 18, 52, 124) Alabama case. J.B. Moore: History and Digest of International Arbitrations, 1898, V.1, pp. 494 sqq. (p. 50) Chorzow Factory Case, PCIJ. Series A, Nº 17, 1928, pp. 47 sqq. (pp. 3, 47, 72, 100, 138, 139, 158) Corfu Channel Case (United Kingdom vs.Albania), Judgment of April 9, 1949, ICJ Reports 1949, pp. 4 sqq. (pp. 14, 47, 51/52, 55, 89, 146, 154) Fisheries Jurisdiction Cases, ICJ Reports 1974, pp sqq. (United Kingdom of Great Britain and Northern Ireland v. Iceland; Federal Republic of Germany vs. Iceland.), pp. 3 sqq. (p. 18) Gabcikovo-Nagymaros Project (Hungary vs. Slovakia) Judgment ICJ Reports 1997, pp. 7 sqq. (pp. 17, 18) Gut Dam Case (Canada vs. United States of America, 1968, Lake Ontario Claims Tribunal 1968, IELR I, pp. 386 sqq. (pp. 53) Island of Palmas (or Miangas) Case, United States of America vs. Neatherlands, UNRRIA v. 2, 1928, pp. 280 sqq. (pp. 154) Legality of the Threat and Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports, 1996, pp. 96 sqq. (pp. 51/52) Nuclear Tests Case, Australia v. France, Interim Protection Order of 22 June, 1973, ICJ Reports (1973), pp. 99 sqq. (p. 52) Nuclear Tests Case, New Zealand v. France, Interim Protection Order of 22 June 1973, ICJ Reports (1973), pp. 135 sqq. (p. 51) Lodge Holes Colliery Co v. Wednesbury Corporation (1908) AC 323, reversing the Court of Appeals (p. 141) Patmos Case, Messina Appeals Court, 1986 (p. 141) The Commonwealth of Puerto Rico v. Zoe Colocotroni, United States Court of Appeals, First Circuit, 1979 (p. 140)

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State of Ohio v. Department of Interior, United States Court of Appeals, DC Circuit (1989) (p. 143) Trail Smelter Case, United States of America vs. Canada, Judgment of March 11, 1941, UNRRIA Vol. 3, pp. 1905 sqq. (pp. 7-11-15/16- 47/50-122146-154)

Table of Treaties Agreement between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association, 1968 [p. 148] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989 [p. 17] Basel Protocol to the Basel Convention on Liability and Compensation, 1999 [pp. 32, 35, 36, 38, 39] Bonn Agreement on Co-operation in Dealing with the Pollution of the North Sea by Oil (Bonn Agreement), 1969 [p. 17] Brussels Convention on Civil Liability for Oil Pollution Damage, 1969 [p. 67] Id. (as amended by the 1992 Protocol) [pp. 35, 36, 39, 40] Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968 [pp. 148/149] Brussels Convention on Liability of Operators of Nuclear Ships, 1962 [p. 39] Cartagena Protocol on Biosafety, 1992 [pp. 16, 31] Comprehensive Nuclear-Test-Ban Treaty, 1996 [p. 5] Convention between the Unites States and Canada for the Settlement of Difficulties Arising from the Operation of Smelter at Trail, 1935 [pp. 47, 49] Convention concerning the Protection of World Cultural and Natural Heritage, 1972 [p. 134] Convention for the Third Party Liability in the Field of Nuclear Energy of 29 July 1960 (Paris Convention) [pp. 32, 34, 36, 39, 40, 67, 102, 103] Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters, 1998 [p. 149] Convention on Biological Diversity, 1992 [pp. 2, 16, 31] Convention on Civil Liability Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD), 1989 [p. 32]

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Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment of 9 March 1993 (Lugano Convention) [pp. 32, 34, 35, 39, 40, 113, 149] Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface, Rome, 1952 [pp. 32, 36, 67] Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), 1991 [pp. 16, 115] Convention on International Liability for Damage Caused by Space Objects (Space Objects Convention), 1972 [pp. 5, 21, 32, 34, 36, 54, 67, 102, 113] Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden, 1974 [p. 115] Convention on the Protection of the Ozone Layer, Vienna, 1985 [p. 13] Convention on the Regulation of Antarctic Mineral Resources Activities (CRAMRA), 1991 [pp. 16, 39,101, 140] Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954 [p. 134] Hague Convention Nº VII, 1907 [p. 51] Joint Protocol to the Paris and Vienna Convention, 1988 [p. 32] International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (Fund Convention) [pp. 32, 34, 36–40] Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 2003 [p. 102] Kuwait Regional Convention for the Cooperation on the Protection of the Marine Environment from Pollution, 1978 [p. 16] London Convention on Civil Liability for Oil Pollution Damage resulting from the Exploration for and Exploitation of Sea Bed Mineral Resources, 1967 [p. 67] Montreal Protocol to the Vienna Convention on the Protection of the Ozone Layer, 1987 [p. 13] Noumea Convention for the Protection of the Natural Resources and Environment of the South-Pacific Region, 1986 [p. 16]

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OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 [p. 149] Protocol of Environmental Protection to the Antartic Treaty, 1991 [pp. 16, 35, 36, 38] Rhine Chemical Pollution Convention, 1976 [p. 17] Rio de la Plata Treaty, between Argentina and Uruguay, 1973 [pp. 67, 102] Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, 1963 [p. 5] Treaty Between the United States and Canada authorizing Canada to build up a Dam in the Gut Channel, 1903 [p. 53] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and other Celestial Bodies, 1967 [p. 5] Convention on the Non-navigational Uses of International Watercourses, 1997 [p. 101] United Nations Convention on the Law of the Sea [pp. 16, 39, 154] United Nations Framework Convention on Climate Change, 1992 [p. 13] United States-Mexico Treaty for Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande (Rio Bravo) from Fort Quitman (Texas) to the Gulf of Mexico, 1944 [p. 57] Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963 [pp. 5, 32, 34, 36, 38-40, 67, 102, 113]

Chapter I

Introduction 1. Liability and Redress for Lawful Activities Entailing Risk This book deals with the legal consequences of hazardous activities carried out in the jurisdiction or under the control of a State when those hazardous activities cause, or threaten to cause, transboundary harm. In international law, reparation is allowed when wrongful acts of States cause transboundary damages.1 In many domestic legal orders, reparation is also allowed—even if no fault intervenes. Mostly, such damaging acts fall within a framework of activities involving a certain level of risk2—that is, activities where there is a well-founded prediction that, somewhere down the line, damages, even important or catastrophic damages, would occur despite taking all reasonable precautions. Domestic legal orders permit those risky activities when they are socially beneficial, and the benefits they provide outweigh the foreseeable damages. Modern technologies have given origin to activities of great risk—for example, like inter alia nuclear or space activities or the transportation and disposal of dangerous wastes, which menace the persons, properties or environment in other States. That is why States have entered into bilateral and multilateral treaties in order to regulate some of those activities with regimes of sine delicto responsibility analogous to those of internal law. Some writers even maintain that, besides conventional regimes, there are principles of general international law imposing liability on certain type of activities (e.g., ultra-hazardous activities causing damages to the environment). During its examination of State responsibility for wrongful acts, the International Law Commission (ILC) came across the issue of responsibility for acts not prohibited by international law and decided to create a new topic

1

2

Cf. Art. 31 of the International Law Commission attached to United Nations General Assembly (UNGA) Res. 56/83. Compensation may also be in order for some acts or activities not involving risk, but those cases are a small minority.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 1–8. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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apart from that of responsibility for wrongful acts. So the ILC started to consider “International Liability for the Injurious Consequences of Acts Not Prohibited by International Law” in 1973 and completed its work in 2006. Codifying such a topic presented many difficulties: even if a pattern is becoming increasingly discernible in bilateral and multilateral treaties that apply forms of risk liability to hazardous activities, customary international law is yet not fully developed in the field.3 The International Law Commission did not reach a consensus on a text for more than 30 years because of the inherent difficulties that the topic presented. The ILC eventually split the topic into “prevention” and “allocation of loss” and finally delivered drafts to the United Nations (UN) General Assembly. These drafts have helped clarify ideas in the field. The works of the International Law Commission merit special attention, then, regarding both ex delicto responsibility and sine delicto liability. Regarding ex delicto responsibility, the ILC and the General Assembly have almost exclusively developed and codified the law up to now. Regarding sine delicto liability, some other groups have contributed to the development of the law—either by drafting conventions, reports or other instruments or by engaging in theoretical elaborations.4 In the International Law Commission’s parlance, thereafter generalized in the UN and among writers and international jurists, “responsibility” and “liability” became shorthand, respectively, for “State responsibility for wrongful acts” and for “international liability for acts not prohibited by international law,” independent of the technical meaning “responsibility” and “liability” have in Anglo-American law. In this book we shall employ the UN language. Finally, the relationship between “liability” and “responsibility” shall be thoroughly examined in these pages, since the idea that liability was simply part and parcel of responsibility has posed an obstacle to the correct understanding of liability’s legal nature. But first, one must start by distinguishing

3

4

Basically, risk liability (responsabilité pour risque of the French Law) is a sine delicto liability, since no breach of obligation is required. For example, inter alia, conventions and/or reports from the Council of Europe, the Legal Subcommittee of the UN Outer Space Committee and UN Environment Programme (UNEP); or from international organizations like the International Maritime Organization (IMO), the International Atomic Energy Agency (IAEA), or working within the framework of multilateral regimes like the Basel Convention, the Convention on Biological Diversity, and the Climate Change Convention, as well as groups like the International Union for Conservation of Nature (IUCN) and various non-government organisations (NGOs).

Introduction

3

“international liability” from other accountability mechanisms in international law. 2. What Is International Liability About? The most important feature of international liability is that compensation for transboundary damage is allowed even if no international obligation has been breached: only causation is relevant. Moreover, there is no act of the State if damage is caused by private persons. Liability is focused on the increased risk inherent to hazardous activities which, notwithstanding their nature, are permitted because of the social benefit they bring about. The transportation of oil by sea, the off-shore exploitation of oil, the production of energy (in particular, of nuclear energy), the transportation of nuclear materials, the launch of objects to outer space, the transportation of dangerous wastes (or other noxious substances) are among the examples of hazardous activities5 requiring liability regimes. Considerations of a pragmatic nature may prevail in their legal regulation. Liability helps ensure prompt reparation for damages caused—an impossible achievement if fault (culpa) has to be proved. Besides, if the economic viability of beneficial activities is to be preserved, reparation may fall short of the integral restitution established by the Chorzow Factory decision.6 Distributive justice demands that damages caused by such activities be internalized—that is, imposed on the persons who conduct them or most benefit from them— and not fall on victims alien to the enterprise or those who benefit little or not at all. Furthermore, liability channelled towards operators can help transfer costs to society at large because they may be in the best position to bear liability by increasing the price of their products. Also, private companies may find it in their best interests to provide an industry funding for damage caused by hazardous activities even if they did not directly cause the damage. Summing up, liability is part of a regime seeking to regulate certain socially useful but hazardous activities so that they continue being economically viable in spite of the damages they cause—without imposing undue burdens on victims or deteriorating the environment. 5

6

The handling and transport of genetically modified living organisms are also included by some authors among hazardous activities. Chorzow Factory Case, PCIJ, Series A, No. 17, 1928, pp. 47-48. According to the famous ICJ Chorzow Factory decision, when there is “responsibility,” reparation must be in full (restitutio in integrum). In “liability,” there may be thresholds and caps to be more pragmatic.

4

Chapter I

3. Liability and Preventive Measures Experience shows that risk minimization up front is usually more effective than reparation after the fact. In the absence of a conventional legal regime, if the costs of preventive measures are borne by risk-bearers, those who benefit from the hazardous activity may be liberated from such costs. As such, the balance of interests between the State of origin and the injured State is affected.7 4. Liability Regimes Many conventions protecting the environment apply responsibility to States. Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration at the United Nations Conference on Environment and Development (UNCED) are usually cited as legal basis justifying compensation for damages to the environment.8 The International Court of Justice, in its 1996 advisory opinion on nuclear tests, recognized that the general obligation of States to ensure that activities subject to their jurisdiction or control respect the environment of other States or of areas beyond national jurisdiction is already part of the corpus of international law relating to the environment.9 These principles, which give legal ground to responsibility for environment protection may also indirectly be the basis of protective liability techniques. The present writer is of the opinion that the application of those principles should not be limited to the environment, since they find their original source in a still more general principle—that of sic utere tuo ut alienum non laedas10— which places a limit to the use and enjoyment of property. 7

8

9

10

The “polluter pays” principle, as will be seen, is not unanimously accepted as positive international law. It was born as a principle applicable in the field of environmental law placing costs of prevention of environmental harm on the polluter and was later extended to encompass compensation for damage caused by pollution. The 1972 Stockholm Declaration [11 I.L.M. 1416 (1972)] Principle 21 reads: “States have, in accordance to the Charter of the United Nations and the principles of international law, the sovereign right to exploit their natural resources pursuant to their own environmental policies, and the responsibility to ensure that activities under their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.” The 1992 Rio Declaration from the UN Conference on Environment and Development (UNCED) replicates this principle as principle 2, adding a reference to development policies. International Court of Justice advisory opinion for the UN General Assembly on the Legality of the Threat or Use of Nuclear Weapons (1996), para. 29, www.icj-cij.org. “So use your own as not to injure another’s property.”

Introduction

5

4.1. Requirements to Establish Liability The basic requirements to trigger liability are the occurrence of damage and a link of causality between such damage and a lawful activity entailing risk carried out under the jurisdiction or control of a State.11 The essentials of a liability regime would be that: a) A hazardous activity takes place within the jurisdiction or control of a State. b) The occurrence of damage is deemed significant.12 Moreover, there is also a threshold combining risk and harm: the International Law Commission’s articles may consider a legal activity “hazardous” (and, therefore, its risk is deemed relevant to liability) spanning from a high probability of causing significant harm13 to a low probability of causing disastrous harm c) The level of acceptable risk may determine whether a regime of liability or one of State responsibility is needed to regulate a certain activity. Activities exceeding the maximum threshold of acceptable risk may be prohibited and may fall under State responsibility if they are carried on despite the prohibition. Examples include nuclear weapons in outer space, prohibited by the 1967 Outer Space Treaty; nuclear weapons tests in the atmosphere, outer space and under water, prohibited by the 1963 Test-Ban Treaty;14 and any nuclear test, according to the 1996 Comprehensive Nuclear-Test-Ban Treaty.15 In those cases, a regime of prohibitions was imposed, the breach of which would justify corresponding consequences under a responsibility regime.16

11

12 13

14

15

16

For example, see the UN Liability Convention on Space Objects and the Paris and Vienna Nuclear Conventions. The latter two conventions include a subsidiary liability of the State in certain cases. “Control” does not mean “control of the activity”, it means “control of a territory”; the word “jurisdiction” refers to a lawful control and therefore would not be applicable to the case of an illegal domination—for instance, the situation of what was then South West Africa under the control of South Africa. The issue of thresholds will be further analyzed in Chapter II. “Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities,” Art.2.c. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water. Signed by the Original Parties, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America at Moscow: 5 August 1963. Entered into force: 10 October 1963. Comprehensive Nuclear-Test-Ban Treaty, Opened for signature at New York: 24 September 1996. It must be underlined that a prohibited activity not only authorizes compensation or reparation of damage, but, for the sole fact of being developed, any of the other consequences of

6

Chapter I

4.2. Available Remedies Remedies in liability are a part of primary rules, therefore they are neither sanctions nor secondary obligations. The contents of primary rules determine the amounts of and limits to compensation; those rules admit of more flexibility than the secondary rules of a responsibility regime. In Chapter V, we will analyze the topic of compensation in detail. Other remedies—such as cessation, satisfaction and securities and guarantees of non-repetition—are linked to the breach of an obligation and therefore are not applicable as part of sine delicto liability. 4.3. The Role of Fault Fault, in principle, plays no part in a liability regime; victims of damage are relieved from the burden of proving fault. However, fault plays a positive role in the obligations of prevention, as part of due diligence obligations. Through prevention, an appropriate minimization of risk is possible: this is why due diligence—and, consequently, fault— finds a place in the regulation of hazardous activities,17 where obligations of prevention must coexist with liability. Prevention is placed in the domain of responsibility for wrongful acts, not in that of liability sine delicto. (a) Exceptions to Liability Some exceptions classically accepted in the field of state responsibility as precluding wrongfulness, such as force majeure or fortuitous events, are sometimes also applicable to liability. As we will see in Chapters III and IV, the number of exceptions is limited and those permitted are due sometimes to pragmatic reasons, such as requirements of the insurance industry in regimes of civil liability.18 In a regime of State liability some such exceptions have less

17 18

a breach of obligation is allowed even if no material damage ensues, including countermeasures as a dissuasive to repetition. As we will see in Chapter II. Civil liability regimes will be explained in Chapter IV. Basically, they channel liability to private persons, normally the operator. Lefeber correctly points out that “A limited number of exonerations have been proposed in doctrinal writings as circumstances precluding liability sine delicto, in particular acts of God and acts involving the use of force. The ratio of such proposals seems to have its origin in civil liability regimes. Exonerations of this kind have been introduced in civil liability regimes to safeguard their viability. The viability of these regimes depends on the insurability of the risk. Given present insurance market conditions, it is difficult, if not impossible, to obtain cover for acts of God and acts involving the use of force” R. Lefeber, Transboundary Environmental Interference and the Origin of State Liability, The Hague, 1996, pp. 151/152.

Introduction

7

reason to exist, since States are supposed to be their own insurers. Contributory negligence of the victim of harm is an accepted exception, even in State liability regimes.19 (b) Criteria to Determine Compensation In Chapter V, we will examine the rules of compensation in the fi elds of liability and responsibility: they do not necessarily follow the same criteria. The inherent flexibility of liability allows distributive criteria to allocate loss, whereas the existence of fault in responsibility imposes integral reparation for an unlawful act.

5. Acts and Activities A digression here: the distinction between “activities” and “acts” should be clarified at this juncture. Without trying to formulate a scientific definition of “activity,” it is helpful to note that an activity may be composed of many individual or group conducts with a common purpose. In other words, “activity” is a way of mentioning a large array of acts that have a certain affinity and a common purpose. “Industrial activities” are all activities connected with industry, and they may be infinite. “Activity” may also have a more specific scope: the activity of a particular industrial establishment, like that of the Trail Smelter in Canada. Certain conclusions may be drawn from this distinction between specific “acts” and generalized “activities”. Smelting metals is, broadly speaking, lawful. In the case of the Trail Smelter, however, some of the specific acts within that activity—together with certain atmospheric conditions (e.g., constant winds in certain direction)—produced persistent harmful transboundary effects. For the sake of discussion, let us then suppose that, somewhere in the smelting process, certain elements mixed under the effect of the fire created fumes which caused damage and that the replacement of those elements for others, together with the addition of a filter in the chimneys, could have prevented the undesired effect.20 It was the act of smelting the metal with those particular elements in the mixture and the omission of a filter that produced significant (and preventable) damage. Cessation of that particular act was called for, while 19 20

Id., p. 150. Which is what basically happened in the Trail Smelter Case: the Court imposed a régime that eliminated the harmful effects produced by certain acts of the activity. The activity then continued with the suppression or the diminution of the elements causing harmful fumes. See Chapter V.

8

Chapter I

the smelting activity continued to be lawful—once the defect was corrected. Naturally, if a wrongful act is absolutely inseparable from an activity, the activity itself cannot continue. It is reasonable to conclude that if certain acts cause harm in the normal course of an activity’s operation, the acts make that activity not inherently “dangerous” or “hazardous”, but have harmful or noxious effects.21 This is so because “danger” or “hazard” always contains an element of contingency which is missing in noxious activities. Such activities may be responsible for wrongful acts and, consequently, subject to cessation. The activity, on the other hand, is not wrongful if the acts producing the harm are omitted—or if the elements causing the damage are replaced by others which render the effects of the activity innocuous or the activity itself simply hazardous. 6. Conclusion The basic elements of liability were introduced in this chapter. Now we are better equipped to take a deeper look at certain key elements of liability— namely, “risk” and “damage.”

21

On “noxious activities” as opposed to “hazardous activities”, see Chapter V.

Chapter II

Risk and Harm, Prevention and Liability 1. Introduction In this chapter, we will examine the relationship between “risk” and “harm” and the parallel relationship between “prevention” and “liability” in the framework of a legal regime regulating a hazardous activity. 2. The Concept of Risk According to Ulrich Beck, we live in a “risk society”1 marked by the existence of hazards and insecurities introduced by modern technology. “Risk” is, therefore, a concept that must be progressively incorporated into modern legal systems. Members of our “risk society” must learn to live with an intangible, abstract probability of harm, threatening as a Damoclean sword above our heads. Risk itself cannot be “repaired”—due to its abstract nature—nor can it be absolutely “prevented” without jeopardizing human progress. Risk must, therefore, be “managed” and “minimized” using legal instruments and taking certain measures. Risk management, however, is a rather complex affair, demanding answers to questions like: How will a legal regime deal with risk? Should thresholds of acceptable risk be set and if so, where? Can excessively high levels of risk render an activity unlawful? How do risk and harm combine to trigger compensation? Should preventive measures be obligatory? Should the cost of preventive measures be reimbursed? According to Beck, “risk” is a concept created to “foresee and control the future consequences of human action. […] It is intimately connected with an administrative and technical decision-making process.”2 The difference between the type of risks created by high technology and those created by nature—such as plagues or natural disasters—lies in the human decision to accept or not to accept the risk.

1 2

Beck, Ulrich, Risk Society: Towards a new modernity, London, Sage, 1992. Id., p. 3.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 9–20. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

10

Chapter II

Two key points that are relevant to the analysis of liability emerge from Beck’s definition of risk. First, there is the importance of determining the limits of a society’s tolerance for risk. Second, there is the complex question of risk in the relationship between human action and decision-making. Decisionmaking, in this case, should always calculate and evaluate the two main elements of risk: the probability of harm occurring and the dimension of the possible harm. Both elements are closely knit together in the couple “riskdamage.” Damage emerging as a consequence of risk is an essential component of a liability regime—i.e., a no-fault regime that allows compensation for the mere causal link between a hazardous activity and damage. Damage unrelated to an activity involving significant risk may be compensable in international law but not under a liability regime as is dealt with in this work. With the evaluation of both the probability of harm and of its potential dimensions, there is a component of human acceptance underlying the decision to allow an activity to impose a risk on society. Some degree of risk must be tolerated by all societies, but in many cases a discussion of the levels of risk acceptable to a determined society never takes place. In such situations, “acceptable risks are ultimately accepted risks.”3 3. The Concepts of Harm and Damage “Harm” is usually defined as “prejudice to a person or property”. It may also include harm to the environment or the costs of prevention or reparation measures taken after an incident occurs. For the International Law Commission, “harm” is used to refer to the adverse consequences that may ensue from a hazardous activity and “damage” to those consequences once they have materialized. “Harm” and “damage” are used in liability because they express the mere existence of adverse effects without reference to a wrongful act. The word “damage” may also refer to the amounts fixed or paid as compensation for harm actually caused. The word “injury” is not used because it has a connotation of unlawfulness. 3.1. The Threshold of Harm Fixing a threshold of harm is relevant to our subject. Harm that does not amount to a significant, tangible or appreciable degree is simply an unpleasantness that is to be endured. Hazardous activities conducted in a State, besides risking significant transboundary harm, may also cause some

3

Id., p. 58.

Risk and Harm, Prevention and Liability

11

minor inconveniences to other States, particularly neighboring ones. Such minor inconveniences must be tolerated for a number of reasons—namely, to avoid unnecessary litigation, to promote good neighborliness and, in particular, to acknowledge that modern technology has made every State both a victim and a source of inconveniences. A passage from the 1965 Trail Smelter award points toward the notion of threshold: “[…] no State has the right to use or permit the use of a 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 serious consequence and the injury is established by clear and convincing evidence.”4 There is a vast consensus that, below a certain threshold, harm should be tolerated in a liability regime. Where should that threshold be fixed? In the International Law Commission, the issue was dealt with twice: first during the consideration of the subject of international waterways and then within the liability topic. In both drafts, the word “appreciable” was used to qualify the damage, although later on there was greater support for the word “significant”. 3.2. Causality and Harm The causality between an act and damage must be proven for liability to arise. Within the context of risk, proving causality may be difficult for the following reasons: • Temporal separation, where harm is visible only years after the act took place; • Multiple overlapping causes, where simultaneous or different acts or causes accumulate leading to harm; and • Uncertainty, where sufficient or conclusive scientific evidence is missing to link an activity with the occurrence of harm. “Damage,” according to the International Law Commission, must be a physical consequence of an activity falling within the scope of its prevention and liability articles. “Causality” refers to a causal chain occurring in a physical environment, and for that reason, “physical link” is preferable to “material link”. There was an early consensus in the ILC to discard other relationships— i.e., the transboundary effects of economic measures. However, modern legal systems have evolved towards the “loosening of causal links,” as Gunther Teubner explains. Teubner notes that the fields of environmental law and ecology open a world of tremendously complex interacting causes. 4

UNRIAA, Vol. 3, p. 1965 (emphasis added).

12

Chapter II

The complexities of causation in the three ecological media—air, water, soil— have frustrated lawyers in their attempts to construct causal links between individual actions and ecological damage. Accordingly, they tend to rely less and less on the underlying architecture of causation, resorting instead to rather audacious legal constructions that weaken the structures of individual causation. […] Causation in law, prima facie, enhanced res ipsa loquitur, reversing the burden of proof, probabilistic causation, joint and several liability in multiple causation, enterprise liability, market share liability, superfund liability—all these new forms of ‘risk liability’5 tend to reduce or even eliminate individual causal linkages between acts and damages and to replace them with an overarching cupola of quasi-collective responsibility for ecological damage.6

The analysis made by Teubner confirms that international liability schemes are evolving towards networks of liability. These networks tend to loosen causality links and prioritize the compensation of harm consequent to activities entailing risk. In this line of argument, the concepts that characterize civil liability regimes (which will be explained in Chapter IV)—such as the “channelling of liability,” “residual State liability,” and the formation of compensatory funds—are all evidence of the phenomenon that Teubner highlights in his study. The collective attribution of liability in the form of networks or layers counterbalances the uncertainty and complexity surrounding risk or harm in environmental or biological processes. The flexible character of “causality” in our topic facilitated, no doubt, the change of its title to “allocation of loss,” which is a more neutral mechanism. In fact, “liability” is more impersonal than “responsibility,” because in the latter, the emphasis falls on authorship and fault-finding. 4. Activities Entailing Risk (hazardous activities) vs. Activities that Cause Harm Some activities produce transboundary pollution or other effects that accumulate over time and end up exhausting nature’s capacity of absorption. Unexpected, significant harm may thus be generated and the normal operation of an activity may be revealed as producing such harm. Sometimes harmful activities are provisionally tolerated because they have been incorporated

5

6

Robinson, Glen O., “Probabilistic Causation and Compensation for Tortuous Risk” (Journal of Legal Studies 14, 1985), pp. 779-798. Teubner, Gunther, “The Invisible Cupola: From Causal to Collective Attribution in Ecological Liability”, p. 12. In Environmental Law and Ecological Responsibility: The Concept and Practice of Ecological Self–Organisation. Ed. by Gunther Teubner, Lindsay Farmer, Declan Murphy, (Chichester, N.Y : Wiley, c.1994).

Risk and Harm, Prevention and Liability

13

into modern life and cannot be interrupted abruptly, but tolerance may be conditional and such harmful activities are increasingly regulated. For example, catalytic converters and unleaded gasoline are increasingly required in developed countries in order to prevent the pollution of exhaust gasses from cars. Similar preventive measures are now taken in other fields of tolerated contamination.7 The above introduction to the concept of “risk” is sufficient to conclude that a legal regime applicable to noxious activities should be of a different nature than one applicable to hazardous activities. Professor Karl Zemanek remarked that the phrase “responsabilité pour risque” was not adequate to cover two different situations which presented themselves in the context of liability: one which was covered by what he called “l’activité risquée propre” and the other, which he characterized as “l’émission permanente de matières nuisibles,” where a certain measure of pollution is tolerated, but, if the limit of tolerance is passed, either by a change in the technological standard or by an accident, the resulting damage must be compensated.8 The essential difference between “hazardous” and “noxious” activities, pointed out in both remarks, calls for different types of accountability. For the Bruntland Experts Group, a “noxious activity” is one of which: “it is foreseeable that it will definitely cause substantial harm in an area under the national jurisdiction of another State or in an area beyond the limits of national jurisdiction.” A “hazardous activity,” on the other hand, is one that “merely” involves “a risk of causing extraterritorial harm…’” The Group considered that such activities should be subject to different legal regimes.9 Some overlap may exist between noxious and hazardous activities. For instance, there are cases when an activity which causes harm during its normal operation may additionally impose a risk to the environment due to some intervening circumstances. Yet purely “hazardous” activities are best regulated through collective liability schemes not suited to cover “noxious” activities. Individual liability based on the “polluter-pays principle” is the best

7

8

9

See Chapter VI, in particular the intervention of Ambassador Türk in a Sixth Committee debate. (Note 41). Regarding activities causing global warming, see Convention on the Protection of the Ozone Layer Vienna 1985, 26 ILM 1529 (1987); Montreal Protocol 26 ILM 1550 (1987); United Nations Framework Convention on Climate Change, 31 ILM 849 (1992). Zemanek, Karl “La responsabilité de l’État pour faits internationalement illicites ainsi que pour faits internationalement licites,” Institut de Hautes Etudes Internationales de Paris, Impressions Granville, 1987, p. 17. Report on Environmental Protection and Sustainable Development (Bruntland Report) by the Experts Group on Environmental Law of the World Commission on Environment and Development; Graham and Trotman/Martinus Nijhoff, 1986, p. 86.

14

Chapter II

instrument to internalize external costs. Besides, some form of culpa lato sensu (negligence or dolus) seems to be readily discernible in a State which allows the continuation of an activity with the knowledge that it will continue causing transboundary harm.10 5. The Relationship Between Liability and “Prevention” and the Influence of Risk “Prevention” and “liability” certainly have a close relationship and that relationship is based on the risk inherent to hazardous activities—making prevention all the more necessary. In a liability regime, prevention may flow as a by-product: an operator’s knowledge that damages will have to be compensated regardless of fault should make him especially careful in handling a hazardous activity. Conventions on specific hazardous activities do not normally include ex ante11 prevention obligations; they may be the matter of domestic laws or of different international instruments. But that supposed caution may not be enough for a legal regime purporting to rule on a hazardous activity: making safety standards dependant on the perceptions of individuals regarding their potential liabilities may not guarantee adequate steps for prevention. Liable parties may be more or less careful or prudent in handling an activity according to their temperament, or the existence of insurance may leave them somewhat indifferent to the potential damages of the activity. Thus, in many cases, rules and standards of safety should be imposed, the breach of which constitutes a wrongful act entailing responsibility in order to make available the best possible prevention procedures that modern technology provides. The Bruntland Experts Group considered that a general obligation of prevention existed regarding activities that cause substantial harm or entail the risk of substantial harm.12 Article 10 of their “General Principles concerning Natural Resources and Environmental Interferences”, under the title of “Prevention and abatement of a transboundary environmental interference” reads: “States shall, without prejudice to the principles laid down in Articles

10

11

12

The dictum of the International Court of Justice (ICJ) in the Corfu Channel Case seems to be clearly applicable to activities which cause harm in their normal operation: they breach “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” ICJ Reports (1949), p. 22 (emphasis added). That is, prevention to avoid an accident. The difference with ex-post prevention will be seen later. Op.cit., n. 9, pp. 75 et seq.

Risk and Harm, Prevention and Liability

15

11 and 12, prevent or abate any transboundary environmental interference or a significant threat thereof which causes substantial harm—i.e., harm which is not minor or insignificant.”13 In an international regime of prevention, the State of origin must impose some obligations on operators and take steps directly or indirectly connected with prevention—such as notifications or consultations with other States. A State must ensure that all obligations of prevention—its own or those imposed on private parties—are fulfilled. As to liability, it needs not be anchored to a determinate subject in all cases; it may be guided by the need to ensure a prompt and adequate compensation of damages or by other practical reasons. Liability may thus be channelled to suitable entities other than the operators, according to circumstances. 6. The Obligation to Prevent and Abate Significant Harm as a Complement to Liability According to Principle 11 of the Rio Declaration on Environment and Development, unilateral measures of prevention expected from a State of origin include formulating legislative and administrative policies intended to prevent or minimize transboundary harm. Those policies must be, then, implemented by enforcement devices. The standard of due diligence should be that which is generally considered to be reasonably proportional to the risk of transboundary harm in the particular case.14 Violation of these obligations may be incurred before any result intervenes—i.e., before any transboundary damage has occurred. The consequences following the breach would be all those included in the International Law Commission’s 2001 articles on State responsibility for wrongful acts. 6.1. Prevention Obligations to Abate Harm and to Minimize Risk (a) Risk Assessment Risk assessment is a key element of prevention when dealing with hazardous activities. It allows a risk-bearing State to make informed decisions as to the threshold of tolerance and the preventive measures to be taken. Risk assessment has been recognized as a State obligation as early as 1941 in the Trail

13 14

Id., p. 8. The standard of due diligence required by the 2006 Commission articles is the matter of Chapter VII, n. 12.

16

Chapter II

Smelter Case between the United States and Canada, where an arbitral tribunal, after making its own assessment of risk, recommended a regime for the operation of the smelter. That regime was implemented to prevent further damages by smelter fumes and the defendant, by its observance of the regime, fulfilled the duty of care required by the obligations.15 Principle 17 of the 1992 Rio Declaration on Environment and Development also provides for impact assessment of activities which are likely to have a significant adverse effect on the environment.16 Various forms of impact or risk assessments have been incorporated as requirements in many international conventions17—notably, the UN Economic Commission for Europe (ECE) Convention on Environmental Impact Assessment in a Transboundary Context (1991 Espoo Convention),18 which was devoted entirely to the procedure and substance of impact assessments. States are not obliged to require risk assessments for all activities undertaken under their jurisdiction or control, only for activities likely to cause significant transboundary harm. Such activities are recognizable because they have certain identifiable features: the type or source of energy used, the substances manipulated, the location of the activity and its proximity to State borders, the vulnerability of areas of the States situated within reach of the effects of the activity,19 etc. But besides those general criteria, some conventions include a list of substances that are considered to be dangerous or hazardous, and their use may be in itself an indication that an activity might cause significant transboundary harm. Other conventions incorporate a list of the activities presumed to be hazardous, thus signalling that those activities should be submitted for authorization and assessment before they can begin.

15

16 17

18

19

That assessment included comprehensive and long-term experiments and the analysis of collections of data in respect of the risk created by the smelter to the American territory. A/CONF.151/Rev.1 (vol. I) p. 3. For a more complete development of this point, see International Liability for injurious consequences of acts not prohibited by international law, Doc. A/CN.4/L.503, of 15 July 1994, pp. 2/4. See also Arts.204, 205 and 206 of the United Nations Convention on the Law of the Sea; Art. 4 of the 1991 Convention on the Regulation of Antarctic Mineral Resources Activities (CRAMRA); Art. 8 of the 1991 Protocol on Environmental Protection to the Antarctic Treaty; the 1986 Noumea Convention for the Protection of the Natural Resources and Environment of the South-Pacific Region; the 1978 Kuwait Regional Convention for the Cooperation on the Protection of the Marine Environment from Pollution; arts. 7.c) and 14.1)a) of the 1992 Convention on Biological Diversity and art. 15 of the Cartagena Protocol on Biosafety. 30 I.L.M. 802 (1991), Sands, et al. (eds.) Documents in International Environmental Law, p. 1333. Manchester University Press, 1994. For example, a national park within a risk-bearer State might be particularly vulnerable.

Risk and Harm, Prevention and Liability

17

The International Court of Justice (ICJ) has recognized in the Gabcikovo Nagymaros Case between Hungary and Slovakia that both the “awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis” have become much stronger in international law, and thus should be taken into account by States when implementing existing obligations or contracting new ones.20 (b) Notification and Information Notification and information are also instrumental for a risk-bearing State to reach an informed decision on whether or not to accept the inherent risk of an activity. Notification and information also help a risk-bearing State be in the best condition to negotiate a legal regime in order to re-establish the balance of interests between itself and the State of origin. If an assessment indicates a risk of significant transboundary harm, the State of origin must notify the potential risk-bearing States and provide them with information about the available technical, scientific, and other relevant data on which the assessment is based. Principle 19 of the Rio Declaration states that: “States shall provide prior and timely notification and relevant information to potentially affected states on activities that may have a significant adverse transboundary environmental effect and shall consult with those states at an early stage and in good faith.” The above text may be considered to express a customary international norm embodied in international agreements, decisions of international courts, declarations and resolutions adopted by intergovernmental organizations, conferences and meetings and studies by intergovernmental and international non-governmental organizations.21 Its binding character is even stronger when relating to emergency situations.22 ICJ found the duty to warn to be based on “elementary considerations of humanity.”23 It is on the basis of the above cited precedents that notification and information seem to be an established customary international norm. They also are an essential component of any prevention regime.

20 21

22

23

Case Concerning the Gabcikovo – Nagymaros Project cit., para. 112, in fine. Philippe Sands, Principles of International Environmental Law, Manchester University Press, 1995, p. 606. Lefeber, R., op.cit., p. 38, 39. 1976 Rhine Chemical Pollution Convention, art. 4.1.; 1969 Bonn Agreement, art. 5.1.; 1989 Basel Convention, art. 13.1. ICJ Reports (1949), p. 22.

18

Chapter II

(c) Consultations and Balance of Interests States have, in international law, the customary obligation of engaging in consultations and negotiations when facing international disputes.24 If the risk of transboundary harm is involved in such disputes, the State of origin and the risk-bearing State must consult with each other with a view to agreeing as to the measures to prevent or minimize the risk of significant transboundary harm and then cooperate in the implementation of such measures. That is the general rule, but in the case of a new hazardous—or suspected of being hazardous—activity, the obligations of States of origin to consult arises before any dispute takes place because the balance of interests may be in imminent jeopardy. It is at this juncture that the balance-of-interests test should come into play and some factors and circumstances should be taken into account.25 The balance-of-interests test is of the essence of a liability regime.26 When a new hazardous activity is starting under the jurisdiction of a State, the risk created alters the balance of interests and creates a new legal relationship between that State of origin and the risk-bearer States. The hazardous activity is, presumably, mainly of interest or benefit to the State of origin. In the meantime, on the other end of the balance, the hazardous activity may worry the risk–bearer States, require preventive measures or contingency plans, and could eventually cause damages. If consultations fail, the State of origin should still be able to authorize the activity in question, taking into account the interests of the risk-bearing States. Furthermore, the attitude of the authorizing State does not prejudice the rights of said risk-bearer States. (See Article 9 of the 2006 ILC articles.) 7. Conclusion As was already mentioned, risk cannot be “repaired,”27 as the damage it causes by its mere existence is not compensable. Nor can it be absolutely prevented 24

25

26 27

Sands, Philippe (1995), op.cit., p. 605. International Court of Justice: Fisheries Jurisdiction Cases. ICJ Reports, 1974, pp. 3 et seq. Lac Lanoux Arbitration 24 ILR, p. 119. These factors are mentioned in the schematic outline of Professor Quentin-Baxter, and survived practically untouched since then until they were finally included in Article 10 of the final version of Prevention of Transboundary Harm from Hazardous Activities. See Doc. A/ CN.4/L.503/Add.2, p. 13. Cf. Lefeber, op.cit., at p. 38. The creation of risk of imminent damage may require measures which might prevent or abate that damage, but the cost of the preventive measures themselves constitute a damage if taken by the affected State.

Risk and Harm, Prevention and Liability

19

without jeopardizing human progress. Risk must, therefore, be managed—i.e., minimized through regulatory instruments and measures. How can a liability regime, then, deal with risk? The first conclusion is that: in order to be effective, a regime that seeks to regulate risk must be focused on risk minimization and not solely on reparation. When dealing with risk, prevention is equal to risk minimization and risk management. Secondly, in order to provide reparation, thresholds of acceptability of risk must be set, including a combination of the probability of potential harm and its magnitude—as in the ILC articles. The third conclusion is that: in drafting any legal regime regulating hazardous activities, the challenges of proving a causal link must be taken into account. The objective of the regime should be equitable sharing of the burden of risk and harm, even when causal links are pervaded with scientific uncertainty. Fourthly, such regimes must seek to bring risks down to levels acceptable to the States concerned. Preventive obligations are thus necessary elements of any regime attempting to regulate lawful activities entailing risk. However, being primary obligations, as we have seen, their breach makes State responsibility applicable. Such are the obligations of making environmental impact assessments, sending notifications and information, as well as, in some cases, requesting the prior consent of the risk–bearing States.

Chapter III

Responsibility and Liability in International Law 1. Introduction In the present chapter, we will examine the various forms that responsibility and liability may assume in international law. Comparing the concepts of “responsibility” and “liability” will show which of the two adapts itself better to the regulation of hazardous activities. The comparison will also try to discern whether or not the International Law Commission’s decision to treat “liability” as a separate subject was a wise one. 2. Responsibility and Liability in International Law In response to modern technological risks, various forms of sine delicto liability have progressively evolved in most domestic legal systems. In international law, a number of specific (hazardous) activities are regulated by multilateral conventions where the liability for transboundary damages falls mainly on private persons or entities,1 and in some cases there may be a residual State liability. In one convention, there is exclusive State accountability.2 Within the International Law Commission (ILC), several members were of the opinion that the situations contemplated by the liability topic were well covered by the concepts of responsibility.3 However, authors like Rolando

1 2

3

These conventions are referred to as “civil liability” conventions. The Convention on International Liability for Damage Caused by Space Objects (Geneva, 29 March, 1972) is the only convention where liability is exclusively on the State, with sine delicto liability to pay compensation for damage caused by its space objects. Art. II reads: “A launching State shall be absolutely liable for compensation for damage caused by its space objects on the surface of the Earth or to aircraft in flight.” And Article III reads: “In the event of damage being caused elsewhere than on the surface of the Earth to a space object of a launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to the fault of persons for whom it is responsible.” 961 UNTS 187; Sands et al (eds) Documents in International Environmental Law, p. 1538. Manchester University Press, 1994. See Chapters VI and VII for an account of the development of this issue in the ILC.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 21–30. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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Quadri4 and Roberto Ago5 would use a different name: what is legally known as “liability” would be a guarantee given by an operator as a condition for the legality of the hazardous activity he conducts. In this chapter, the main features of international responsibility for wrongful acts will be compared with those of sine delicto liability, and consideration will be given to the practical consequences of differentiating one from the other. In order to be effective, risk regulation requires regimes with special features. Sine delicto liability has proved to be efficient in solving problems posed by the risk inherent to some modern activities. For instance, its special features include the irrelevance of fault, the possibility of prompt compensation, the flexibility in the appreciation of causality, and the allocation of the costs of reparation.6 2.1. Responsibility and Liability: the Use of Both Terms7 The meanings of the words “responsibility” and “liability” used nowadays by the ILC and most UN bodies—and as seen in most international legal literature—do not correspond with the words’ original meanings in AngloAmerican law. Besides, the Anglo-American issue of having two different words express the notion of responsibility does not exist in other legal systems. French (“responsabilité”), Spanish (“responsabilidad”), and Italian (“responsabilità”) have only one word to convey both “responsibility” and “liability”. The choice of the word “liability” in the English version of the topic stems from an exchange of views in the ILC during its twenty-fifth session, in 1973. It was suggested by Mr. Kearney, the American member, that: “[T]he term ‘responsibility’ should be used only in connection with internationally wrongful acts and that, with reference to the possible injurious consequences arising out of the performance of certain lawful activities, the more suitable term ‘liability’ should be used.”8 4

5 6 7

8

Quadri, Rolando, Diritto Internazionale Pubblico, (5a Ed., Napoli 1968), pp. 590/591. It must be noted that in Italian, as in French and Spanish, there is only one root word to refer to both responsibility and liability. In French, liability is known as “responsabilité pour risque,” in Spanish “responsabilidad por riesgo,” and something equivalent in many internal law systems in the world. It seems too late to change these names; but it is important to bear in mind that the concepts are different and they should be kept separate from each other. Yearbook of the International Law Commission, 1969, Vol. I, p. 105. See Chapter II. A complete discussion on this question may be found in the Preliminary Report of Professor Quentin-Baxter, Yearbook of the International Law Commission, 1979, Vol. II, Part I, pp. 250/252. Yearbook of the International Law Commission, 1973, Vol. I, p. 211.

Responsibility and Liability in International Law

23

So, the term “responsibility” refers to the legal consequences following the breach of an international obligation—i.e., it is “responsibility for wrongful acts.” That is the classical meaning of the word and it corresponds to the rooted belief that there can be no real responsibility unless there is a wrongful act. As L.F.E. Goldie puts it: “The term ‘responsibility’ thus includes the attribution of the consequences of conduct in terms of the duties of a man in society.”9 But “responsibility” has still another meaning: the word may be used to refer to a set of obligations that include a duty of care or vigilance, incumbent on a certain person. In the “Informal Composite Negotiating Text, Revision 2” of the Third UN Conference on the Law of the Sea, “States are responsible” is translated as: “…il incombe aux Etats de veiller…”. Also, the meaning of “responsibility” seems to be similar in Principle 21 of the Stockholm Declaration.10 The word is used with the same meaning in UN General Assembly Resolution 2749 (XXV) of December 17, 1970, paragraph 14: “Every State shall have the responsibility to ensure that activities in the area…shall be carried out in conformity with the international régime to be established” (emphasis added).11 We would like to recall a remark by Goldie that: “[A]t times, publicists and judges may employ the two terms (responsibility and liability) almost interchangeably or synonymously.”12 He added that: “in certain general contexts, legal responsibility and legal liability may be given, in ordinary language, the same meaning, to say that a man is legally responsible for some act or harm is to state that his connection with that act or harm is sufficient, according to law, to render him liable to his victims for the consequences of his act or for the harm he has caused.”13 In fact, the only link between what came to be known as “liability” in ILC parlance and State “responsibility” is that they both deal with the consequences of certain acts. The difference is that the acts in one of them (“responsibility”) are wrongful and in the other (“liability”) are lawful. This places the

9 10

11

12 13

Legal Aspects of Transfrontier Pollution, Paris OECD, 1977, p. 344. “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” “Concepts of strict and absolute liability and the ranking of liability in terms of relative exposure to risk” in the Netherlands Yearbook of International Law, 1985, p. 182. Second Report (Barboza), Doc. A/CN.4/402, p. 3. Op.cit., p. 182.

24

Chapter III

consequences of those acts in different stages of legal norms: the former in the secondary norm and the latter in the primary norm.14 Rivers of ink have flowed to point out the subtle differences between such words within the Anglo–American legal system, as if those differences could automatically be transferred to international law. We might as well have called them “Accountability I” and “Accountability II” and describe the features of each one. Be that as it may, the fact is that “responsibility” in United Nations legal parlance has become shorthand for “State responsibility for wrongful acts,” and “liability” for “international liability for acts not prohibited by international law.” In this book, the terms will be used as in the ILC, unless otherwise stated. 2.2. More on the Meaning of Certain Terms (a) Objective Liability The word “fault” in English and “faute” in French have dual meanings: one refers to the breach of an obligation—i.e., to the mere contrast between the conduct required by that obligation and the conduct which the author State has in effect followed—and the other refers to culpa lato sensu—that is, to dolus or negligence. The latter meaning points to the “subjective” aspect of the conduct.15 Liability for lawful acts is sometimes also called “objective liability” because, if no duty has been violated, the subjective element of culpa cannot possibly exist. However, the breach of many international obligations does not require culpa and the correspondent responsibility is also objective, so trying to distinguish liability from responsibility by its “objective” character may lead to ambiguity.16 The difference between “objective

14

15

16

“In liability, the primary norm includes the legal consequences, because there is no breach of obligation. The primary norm may be expressed like this: “Damages caused by a lawful act of a legal hazardous activity must be compensated. The secondary norm would be: if compensation is not paid by the liable party, then there is a breach of obligation with legal consequences: these consequences are again compensation, satisfaction, etc, only that in this case, compensation may include interests, lucrum cessans, etc And of course, the injured State may also take countermeasures in order to force the reluctant State comply”. See Zemanek, op.cit. p.34. “Malheureusement, le terme ‘faute’ n’est pas employé uniformément dans les systèmes juridiques ou dans toutes les langages. Dans plusieurs systèmes, ‘faute’ signifie manquement à un devoir et est donc synonyme de délit…Dans d’autres systèmes, ‘faute’ implique une sorte de culpa, soit intention, (dolus, culpa gravis) ou négligence (culpa levis ou levissima) dans la violation d’une obligation.” It goes without saying that if there is no “manquement à un devoir”, there cannot be fault in the second meaning. As an example, the breach of most obligations of conduct of Part I of the ILC draft on State responsibility does not require the existence of fault (culpa).

Responsibility and Liability in International Law

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responsibility” and “liability” is that, in the former, culpa is irrelevant but there is fault in the sense of a breach of obligation, whereas, in the latter, there is no breach of obligation (and therefore also no culpa). One is ex delicto and the other sine delicto. In fact, the double meaning of “fault” has lead to confusion between cases of strict liability due to the irrelevance of culpa—i.e., the subjective element of State responsibility notwithstanding the breach of an obligation—and sine delicto liability, where the breach of an obligation is not required. (b) Strict Liability “Strict liability” is the name employed in Anglo-American law for a no-fault liability applying mainly in the field of torts. There are writers who consider it as an “objective and relative responsibility”17—that is, a no-fault (in the sense of culpa) responsibility for wrongful acts which is not absolute—that is, which admits certain exceptions. Maybe that was the theory underpinning common-law “strict liability,” but not necessarily to “strict liability” as applied in some statutory fields. Referring to “abnormally dangerous conditions or activities,” William Prosser acknowledges that: … [T]he courts have in effect recognized a new doctrine that the defendant’s enterprise, while it will be tolerated by the law, must pay its way. There is a strong and growing tendency, where there is blame on neither side, to ask, in view of the exigencies of social justice, who can best bear the loss and then to shift the loss by creating liability where there has been no fault. An entire field of legislation, illustrated by the workmen’s compensation acts, has been based upon the same principle.18

According to Prosser’s description, “strict liability” is based on the idea that the defendant was engaged in some kind of lawful activity exposing others to a risk of harm under circumstances that justify allocating certain losses caused by such risk to the defendant, even if the defendant acted with reasonable care.19 There are cases, however, where liability is created by statute and does not correspond to a wrongful act or tort, such as happens in labor accidents. “Strict liability,” then, seems to be applicable both to torts (ex delicto) and to lawful acts causing damage—in the last case, as a form of sine delicto liability.

17 18 19

See e.g. B. Conforti, Diritto Internazionale, 3rd ed (1989), pp. 346/347. Prosser, The Law of Torts, St.Paul, Minessota, 1978, p. 494. See Prosser and Keaton on the Law of Torts, 5th ed.1984, p. 243/245.

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(c) Absolute Liability The expression “absolute liability” also seems to originate in the AngloAmerican law to refer to a more rigorous form of liability. As L.F.E. Goldie writes: “The term ‘absolute liability’ has been revived… to indicate that a more rigorous form of liability than the usually labelled ‘strict’ is now before us, especially on the international arena.”20 Let us remember, however, that even “absolute liability” admits of exceptions in international practice. (d) Sine delicto Liability “Sine delicto liability” would exactly correspond to the original title of the ILC topic: “Liability for the Injurious Consequences of Acts Not Prohibited by International Law.” Any regime of liability involving no breach of obligation is characterized by the fact that: “Liability arises from lawful activities, on the basis of the mere causal link between these activities and the damage done. For this reason, such form of liability is, by its own nature, objective and absolute.”21 Paradoxically, the word “absolute” is here only relative. The similarities and differences between “strict liability” and “liability sine delicto” were explained above. Changing the onus probandi is not a mechanism of “liability sine delicto,” but of responsibility for wrongful acts, since the absence of subjective fault (culpa) has to be proved in order to exempt the defendant from responsibility, whereas fault is irrelevant in liability. (e) Responsabilité pour risque (Risk Liability) Generally, in civil law countries, responsabilité pour risque (risk liability) is the liability which applies to a hazardous activity on the basis of the risk created by the activity. As pointed out above, it is a liability without breach of obligation and, consequently, also without culpa (lato sensu)—in other words, it is a form of sine delicto liability since it applies to lawful conduct. The term is, in this writer’s opinion, quite adequate in that it takes “risk” into account—a decisive factor in this book.

20

21

L.F.E.Goldie, “Concepts of Strict and Absolute Liability in Terms of Relative Exposure to Risk”, Netherlands Yearbook of International Law, 1985, p. 194. Ricardo Pisillo-Mazzeschi, “Forms of International Responsibility for Environmental Harm” in Francioni and Scovazzi (eds.) International Responsibility for Environmental Harm, Graham&Trotman, Ltd. London, 1991.

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3. Liability Governed by Primary Norms It is generally agreed that in liability both the act causing harm and its legal consequences are contained in the primary norm. As a result, the consequence (the prompt payment of adequate compensation) does not correspond to the breach of obligation but to the fulfillment of a condition, namely the production of damage. Some writers assign this result to a compound obligation to prevent and abate transboundary environmental interference causing significant harm.22 Secondary obligations are the typical field of responsibility and were dealt with in the ILC in the topic called “State Responsibility.” They may take the form of reparation (restitution, compensation, and satisfaction23) or securities and guarantees of non repetition. An obligation of cessation may also arise if the primary obligation was breached by means of a continuous act.24 In other words, the primary norm would say something like: “Damage caused by the activity (hazardous but lawful) shall be compensated.”25 If the obligation to compensate is not fulfilled, then—and only then—there would be a breach of the primary obligation and a second obligation would arise in one of the above-mentioned forms (reparation, securities, and guarantees). Now we have entered into the domain of responsibility for wrongful acts. The distinction between primary and secondary norms and obligations was dismissed by some ILC members as being only “relative”; the implication being that the distinction between “responsibility” and “liability” was also “relative.” That sounds illogical: a human conduct has only two possibilities in relation with a legal obligation—either to fulfill it or to breach it. In the first case, the conduct remains within the domain of the primary norm. In the second case, the conduct enters into the domain of the secondary norm.

22

23

24

25

Lefeber R., Transboundary Environmental Interference and the Origin of State Liability, Kluwer Law International 1996, pp. 230-232. However, such compound obligation implies a contradiction, since the breach of prevention carries responsibility. Prevention is an alien body in that primary obligation. “Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination …” (Art. 34 of UNGA Res. 56/83). Cessation implies stopping the continuous act which is producing an also continuous violation of the primary obligation. That primary norm may be contained in a treaty, like in the many existing conventions on civil liability mentioned in Chapter IV.

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Chapter III

There is one type of norm for each possible conduct and there are no more than two such possibilities. The distinction, then, is not contingent but necessary; it cannot be cavalierly cast aside for having a “relative” value. 4. Distinctive Features of Liability In the opinion of the International Law Commission,26 “responsibility” should be carefully separated from “liability,” as was said in its Report on the occasion of the creation of the “liability” subject, in a much quoted paragraph.27 A comparison of the two terms’ elements and features shows that “responsibility” and “liability” are two different legal species.28 5. Conclusions The general examination of “liability” shows the absence of fault and the presence of risk. This combination makes possible the balancing of the different interests, as there is nobody to blame for subsequent damage and risk was accepted from the beginning by all concerned—as long as potential victims were compensated. Any legal theory that did not take into account the risks created by modern technologies would be blind to central aspects not only of liability, but of modern life. A third element of liability is the social interest in the acceptance of risk. Prompt and adequate compensation to victims is of the essence for the socially acceptable functioning of a hazardous activity: the irrelevance of fault makes establishing who exactly is to blame for the damage unnecessary. Only 26

27

28

Yearbook 1976, Vol. II, Part Two, p. 70. Even though the term used in this sentence is “responsibility for risk,” the subject created was called “International Liability for the Injurious Consequences of Acts Not Prohibited by International Law,” thus formally introducing the term “liability” into the subject. The transcribed paragraph reflects the opinion of the ILC as to the separation of the topics at the time, as well as the identification of “liability” as different from “responsibility”—though it might not have been the opinion of some of its individual members along the way. “Owing to the entirely different basis of the so-called responsibility for risk and the different nature of the rules governing it, as well as its content and the form it may assume, a joint examination of the two subjects could only make both of them more difficult to grasp.” Yearbook 1976, Vol. II, Part Two, p. 70. For a complete development of this reasoning, see Julio Barboza “Sine delicto (Causal) Liability and Responsibility for Wrongful Acts in International Law” in International Law on the Eve of the Twenty-first Century. Views from the International Law Commission, pp. 317/328.

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proof of causality is required, and we have seen how that requirement has been made flexible in the framework of existing conventions. In summary, causation, not authorship, is the key element in liability. An international liability regime would, then, be more efficient in the regulation of risk than a traditional State responsibility regime. “Responsibility,” originating as it does in a wrongful act, provokes a legal reaction based on the individualization of both the wrongdoer and the attribution of consequences to the wrongful act. In that sense, “responsibility” is—in some aspects and somewhat paradoxically— stricter than “strict liability”: once the fault of a person has been established, total reparation (In integrum restitutio) is the response of the law. The above features require a legal regulation indifferent to fault, but sensitive to the costs of the enterprises conducting hazardous activities—i.e., sensitive to their economic viability and to the benefits that those activities bring to society. “Liability” is more concerned with statistics, costs, equitable distributions, insurances, and other practicalities than by culpa lato sensu, the breach of obligations and the integral restitution. More interest is vested in the continuous functioning of the hazardous but socially useful activity than in cessation: the consequences of damage may be collectively allocated among the different participants in the activity precisely to attain that objective. The convenience of liability regulation of hazardous activities has been acknowledged by most domestic legal systems, since liability has to do with conducts that are lawful and not wrongful. Compensation, however, is not the single goal of a legal regime intending to cope with risk. Equally important is the minimization of risk in order to lower exposure to significant harm—in other words: prevention for the sake of people and the environment. Some measure of prevention flows as a by-product of liability, since its exercise tends to reduce the number of accidents and, consequently, lower the cost of compensations. But that side effect of liability depends upon many subjective factors—such as the temperament of the operator and his social sensitivity (or insensitivity), which might make him indifferent to incidents because insurance pays—so that in order to reach the sufficient level of protection that society owes to risk-bearers, or a State owes to another State, an objective regulation of prevention is necessary. Besides, on the international plane, measures—like notifications and consultations to affected States—help establish cooperation and, therefore, diminish the risk of incidents. A regime of “hard” obligations of prevention is, then, a necessary complement to sine delicto liability in order to achieve an efficient regulation of a hazardous activity. Such obligations fall on the State, which must insure that the best conditions of safety are met in the handling of risk-threatening transboundary damage.

Chapter IV

Conventional Law 1. Civil Liability Regimes in International Law In this chapter we shall examine conventions on liability and compensation. Bearing in mind that the only clear-cut cases of liability in international law can only be found in the conventional field, an exploration therein seems necessary.1 Besides, the existence of conventional rules may be an indication -never conclusive, but always useful- of the status of such rules in customary law. In a civil liability regime primary liability falls on private persons or entities2 acting within the framework of the State of origin’s domestic law. Treaties between States provide an international legal framework to those regimes and may establish liability rules common to all States parties; other rules regarding the rights and obligations of private operators or other private parties are left to be regulated by the member States. International treaties establishing liability are related to specific activities particularly in fields like civil aviation, oil pollution, nuclear energy, transport of certain goods, product liability and hazardous wastes. Other agreements cover hazardous activities in certain regions, like Annex VI to the Protocol on Environmental Protection to the Antartic Treaty. There are other fields where negotiations are taking place with a view to create similar regimes -as in the framework of the Biological Diversity Convention.3 Liability is imposed on private parties, but States assume a number of important obligations, mainly to allow for prompt and adequate compensation to non-resident victims of the State of origin.4

1

2 3

4

For a rather complete exposé of individual existing conventions on liability and compensation consult the document of the Secretariat A/CN.4/453. With one exception, the convention on space objects. There is already an instrument, the Protocol of Cartagena on Biosafety, but it refers to prevention of transboundary damages caused by Living Modified Organisms, not to liability; there are ongoing negotiations on a Protocol on liability and compensation for damages to biological diversity. P.M. Dupuy states, with regard to civil liability conventions, “l’Etat, dans l’ensemble de ces traits, n’apparait pas en tant que personne du droit international public, mais pour ainsi dire en

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 31–44. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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2. Common Features of Conventional Law It must be recalled that primary obligations are the field of liability. In the conventions, primary obligations are the product of the common will of the parties to them. In fact, the parties may adopt the conditions and forms they consider convenient; the only limitation being the imperative norms of international law. That marks a difference with secondary obligations, usually imposed by international customary law following certain patterns already established –such as cessation, restitution, etc. Although such patterns may be modified by treaty, general law normally determines the obligations and consequences related to responsibility. 2.1. Identification of Liable Parties: Channelling of Liability Where liability is placed primarily on the State -like in the convention on Space objects- and in conventions where part of the damage is allocated on the State, such liability or allocations are independent of any act of the State. The conduct of the persons who caused the damage is not attributed to the State: only their legal consequences are. Most conventions channel liability to the operator of an activity. The operator is defined as the party who has control over the activity at the moment of the incident.5 However, some conventions establish that the party with control is the one appearing in the public register of the State of origin as the owner of the installation or of the vessel, etc. and where such registers do not exist the owner is generally presumed to have direct control. In the Basel Protocol the generator, the exporter, the importer and the disposer are successively liable. Exceptionally, the Space Objects Convention -which deals with State or State sponsored activities- does not channel liability to private parties. The carrier of dangerous goods is the liable party in the Convention on Civil Liability Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD), the owner of the vessels in oil conventions. Channeling liability affords a guarantee of prompt compensation to the victims and facilitates the transfer of prevention and liability costs to the prices of goods. Some conventions allocate losses in such a way as to avoid

5

civil, agissant en effet à l’instar d’une personne privée” Jiménez de Arechaga seems to share this opinion. Inter alia, the Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface, Rome 1952: arts. 2.1, 2.2, and 2.3; CRTD: art. 1.8; The Paris Convention: art. 3; The Vienna Convention: art. 2; The Joint Protocol to the Paris and Vienna Convention: art. 2; The CLC: art. III.1; The Fund Convention: art. 3.2; The Basel Protocol: art. 6; The Lugano Convention: arts: 6.1, 7.1.

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excessive costs to the industry by fixing limits to the operator’s liability and then including second and third tiers of liability to ensure adequate compensation to victims.6 Risk management - by means of pools and the identification of proper liable parties - might be crucial to achieve a proper balance between prevention and compensation within any regime dealing with liability and risk. 2.2. Flexibility of Causal Links Regimes establishing liability for hazardous activities - especially in regard to the environment -, are forced to address an issue that is particularly uncomfortable for lawyers: the complexity and uncertainty inherent in causal links. In principle, the damage must be caused by the inherent risk or risks of the activity which was the object of the Convention. It is not any damage caused by the activity that is subject to liability. In the Green paper on remedying environmental damage,7 the three main problems regarding causal links are identified. The first is the problem of cocauses, i.e. when the results of many different activities combine and overlap to cause certain damage and their individual contributions cannot be ascertained. The second is the problem of intertemporal harm that takes place when damage does not manifest itself until after an extended lapse of time. The third is scientific uncertainty as to the relationship between pollution and different kinds of damage to health or to the environment.

6

The Lugano Convention, for example, states in its art. 6 that: “1. The operator in respect of a dangerous activity mentioned under Article 2, paragraph 1, subparagraphs a) to c) shall be liable for the damage caused by the activity as a result of incidents at the time or during the period when he was exercising the control of that activity. 2. If an incident consists of a continuous occurrence, all operators successively exercising the control of the dangerous activity during that occurrence shall be jointly and severally liable. However, the operator who proves that the occurrence during the period when he was exercising the control of the dangerous activity caused only a part of the damage shall be liable for that part of the damage only. 3. If an incident consists of a series of occurrences having the same origin, the operators at the time of any such occurrence shall be jointly and severally liable. However, the operator who proves that the activity caused only a part of the damage shall be liable for that part of the damage only.”

7

Article 7, paragraph 4 is also relevant: nothing in this Convention shall prejudice any right of recourse of the operator against any third party”. This makes it clear that it is national law which must provide for the recourse in question and also that this Convention does not follow the pattern of the conventions on nuclear damage, where the operator is barred from recovery. Document COM (93) 47 final, Brussels, 14 May 1993, p. 10. Item 2.1.8.

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(a) Multiple Causation Multiple causation is dealt with in the Paris and Vienna Conventions: in case of damage caused jointly by nuclear and other incidents, the damage which is caused by such other incident shall, to the extent that it is not reasonably separable from the damage or loss caused by the nuclear incident, be considered to be damage caused by the nuclear incident.8 The Space Objects Convention also establishes joint and several liability when two space objects owned by different States are involved in an incident.9 The Lugano Convention reverses the burden of proof, making operators - of several installations or several sites where dangerous activities are conducted - jointly and severally liable for damages resulting from connected incidents, unless operators can prove that they caused only part of the damage.10 (b) Scientific Uncertainty The Fund Convention allows compensating pollution damages when the protection afforded by the Oil Pollution Civil Liability Convention (CLC) is inadequate. Victims of damage may get compensation under the Fund Convention unobtainable under the CLC for “scientific uncertainty” by proving that harm was caused by an incident involving one or more ships in the territory of a contracting State.11 (c) Intertemporal Harm The compensation of intertemporal harm is provided for in the Lugano Convention: “If an incident consists of a continuous occurrence, all operators successively exercising control of the dangerous activity during that occurrence shall be jointly and severally liable.” (art. 6.2) Operators are allowed to prove they caused only part of the harm and therefore are liable only for their portion, thus reversing the presumption previously established. A provision in the Lugano Convention instructs the court, when considering evidence of a causal link between an incident and its consequent damage - or between the activity and the damage - to take due account of the increased danger of causing such damage inherent in the dangerous activity.12 8 9 10 11 12

Paris Convention: art. 3; Vienna Convention: art. IV, 4. Space Objects Convention: arts. IV, V. The Lugano Convention: arts: 6.3, 11. The Fund Convention: arts: 2.1, 4. Article 10. “When Considering evidence of the causal link between the incident and the damage or, in the context of a dangerous activity as defined in Article 2, paragraph 1,

Conventional Law

35

Also, in matters relative to complex causation, alternative options are sometimes offered in civil liability regimes - such as compensation funds formed by contributions of all entities and individuals taking part in the activity in proportion to their participation. Another alternative is the relaxation of scientific evidence requirements and the reversal of the burden of proof - whereby an operator benefiting from an activity or a decision-maker accepting a hazardous activity will have to prove that the damage was due to a cause alien to the activity. 2.3. Liability Multilateral conventions primarily concerned with navigation, oil, nuclear materials, hazardous wastes and other noxiuous substances, impose liability on operators or other suitable parties and sometime on States.13 That is probably the most important feature of these regimes: they emphasize the growing importance of risk as a trigger of liability in lawful activities, and as a consequence the diminishing role of due diligence in matters of compensation for the damages caused. Some conventions -like the Oil Pollution Civil Liability Convention- have a dual compensation scheme, providing for limited compensation in the case of liability and unlimited compensation if fault is proved.14 The Basel Protocol has a similar scheme providing for limited sine delicto liability for the operator, and unlimited responsibility for other liable parties.15 The Kiev Protocol,

13.

14 15

subparagraph (d), between the activity and the damage, the court shall take due account of the increased danger of causing such damage inherent in the dangerous activity.” Lugano Convention, art. 10. It is stated, in the Explanatory Report, that: “This article encourages the Court, when it considers the evidence concerning the causal link between the incident and the damage or, in the context of a site for permanent deposit of waste, between the activity and the damage, to take account of the increased risk of damage from a specific dangerous activity. In order to assist the person suffering damage to obtain compensation, account is taken of the specific risks created by certain dangerous activities of causing a given type of damage. The Convention does not create a true presumption of a causal link. The provision operates as a complement to the system of strict liability. It therefore forms part of all the rules which are designed to assist the person who has suffered damage to prove the causal link which may, in practice, be difficult.” See addendum to CDCJ (92) 50, p. 35. “Multilateral treaty practice touching on the issue of liability may be divided into three broad categories: first, civil liability conventions addressing the question of liability of operators and in some circumstances of States, in terms of both substantive and procedural rules; secondly, treaties which hold the State directly liable; and thirdly, treaties which make a general reference to liability without specifying any further the substantive or procedural rules related thereto”. Survey, cit., p. 44. CLC: art. V.1 and 2 (as amended by the 1992 Protocol). Basel Protocol: arts. 4 and 5.

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besides placing liability on the operator for damage caused by an industrial accident, also attaches liability on any person for damage caused - or contributed to- by his or her wrongful intentional, reckless or negligent acts or omissions. This is in accordance with the relevant rules of applicable domestic law -including laws on the liability of servants and agents.16 The Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) establishes liability on the sponsoring State if damage caused by the operator would not have occurred but for the failure of the sponsoring State to carry out its obligations in respect of the operator.17 Liability schemes aim to a more equitable distribution of the consequences of risk. Such schemes –as we have seen above- have no punitive objectives and choose the operators as liable parties because they are easily identifiable and have the capacity to internalize the costs of prevention and translate them to the prices of goods. In most Conventions, “corrective justice” is not a prime concern, which allows establishing limits to liability in order to permit the survival of a determined industry. 2.4. Liability Caps The establishment of liability caps is the mechanism employed to enable a hazardous industry to continue functioning. Unlimited liability would prevent insurance coverage of risks and place excessive costs on the industry. Liability caps balance the interests of industry against those of victims. The establishment of caps means that full compensation may not be accomplished but that objectives beyond full compensation of harm may be attained. In this sense, civil liability schemes differ from those of traditional responsibility: instead of full reparation, they pursue compensation proportionate to the financial possibilities of the industry engaged in the hazardous activity. It is still possible, nevertheless, to accomplish full compensation if industry funds are created and eventually States assume a residual liability to better balance industrial and citizen’s interests. Most civil liability regimes examined contain limits to liability.18 However, there are exceptions -like the Space Objects Convention,19 and the Lugano

16 17 18

19

Survey…cit., p. 59, para. 164. See Art. 8. Inter alia, The Rome Convention of 1952, art.12; the Paris Convention: art. 7.b; The Brussels Supplementary Convention: art. 3.a; The Vienna Convention: art. V; The CLC: art. V; The Fund Convention: art. 4.4; The Basel Protocol: art. 12; Annex VI to the Protocol of Environmental Protection to the Antartic Treaty, The Space Objects Convention: art. XII.

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Convention, which impose no caps. Limits are sometimes imposed in the internal law of the parties. Where this is so, they vary in their amounts and may be the object of periodical review. Limits are an important feature of these regimes and in some cases make their effective implementation possible. 2.5. Layered Liability and Compensation Funds The establishment of different tiers of liability according to the extent of the harm acts as a safety net for hazardous activities. The layers of liability contribute to the effective allocation of risk burdens. Since operators –including their insurance- may be incapable of covering the full amount of damage caused by certain hazardous activities, supplementary liability is extended to other parties benefiting from that activity - even if they had no participation in the incident causing the damage. Layers of liability, together with channeling, provide the materials for risk management schemes by requiring a joint effort by different social actors: that is the substance of the collective liability mentioned in Chapter II.20 Allocation of potential liability between the State and private parties -individually through operator’s liability or collectively through insurance schemes- is a key factor in enabling activities to prosper and provide social benefits, notwithstanding their inherent risk. For example, the Fund Convention of the oil pollution regime sets out a financial fund supported by all those persons receiving oil cargos in the territory of contracting States. The Fund acts as a second tier of liability to cover the compensation costs that exceed the operator’s limit to liability.21 The Brussels Supplementary Convention directs States parties to it to create a third layer of liability for damage caused by nuclear activities, to compensate for harm. The third layer of liability is a fund constituted with public moneys made available by the State of the nuclear installation and all Contracting Parties according to a formula for contributions.22 The compensation fund is another example of collective attribution of liability, where parties cooperate through their contributions, to redress

20

21 22

“[A]lthough all the nuclear conventions focus liability on the operator as the source of damage or pollution, the … Supplementary Conventions clearly recognize that this approach is insufficient, and involve States in meeting substantial losses in excess of the operator’s capacity to pay or cover through insurance. It cannot be said that any of the nuclear conventions fully implements the ‘polluter pays’ principle, or recognizes the unlimited and unconditional responsibility of States within whose border nuclear accidents occur: what they recognize, if imperfectly, is that the scale of possible damage has to be widely and equitably borne if nuclear power is to be internationally accepted.”20 Birnie and Boyle, p. 481. The Fund Convention: art. 4.1.c The Brussels Supplementary Convention: arts: 3.b.(ii) & (iii).

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incidents in which they took no part. Such collective liability serves the purpose of allowing a swift development of a determined industry by translating costs of risk minimization and prevention to the price of goods.23 2.6. State Liability Residual State liability is provided for in some civil liability conventions. There is a general reluctance of States to accepting any kind of liability unless they themselves fall within the definition of operator. However, in the field of nuclear activities, The Vienna Convention provides that States must ensure: “[…] the payment of claims for compensation for nuclear damage which have been established against the operator by providing the necessary funds to the extent that the yield of insurance or other financial security is inadequate to satisfy such claims, but not in excess of the limit, if any, established pursuant to article V.”24

There could be three different types of State liability, two of them established in some international conventions and one proposed de lege ferenda. Starting with the last one, alternative liability would imply the substitution, in certain circumstances, of the State for the private party in the primary liability, like where the intervention of several sources of pollution makes the individual participation of each one difficult to establish25, or the operator cannot be identified,26 or the transboundary damage is the result of cumulative effects27. There is subsidiary liability when the primary liability of the State of origin is substituted for that of the operator if the latter does not possess sufficient financial security to cover his liability up to the financial limit. This sort of 23

24 25

26

27

The Brussels Supplementary Convention provides for the formation of a Fund financed by all contracting parties, (art. 12). The Fund Convention provides for a Fund to be financed by oil retailers (those receiving determined quantities of oil in Contracting States). (See The Fund Convention arts. 10, 11). The Basel Protocol considers the possibility of creating a special Fund, and allows the use of its Trust Fund to cover potential liability in excess of the limits provided therein; (art. 15.) The Vienna Convention: art. VII.1. As proposed by Mc Caffrey, see Lefeber. Op.cit., n. 244. p. 301. According to that author, this type of liability may arise in the following cases: 1) no causal link may be established between the operator and the harm, 2) the operator can avail himself of exonerations, 3) the operator’s liability is limited in time and 4) to provide interim relief. (Id., P. 300). As suggested by Njenga Ibid., and by the Second Special Rapporteur (Barboza) A/CN.4/ SER.A/1991, p. 94, para. 68. As proposed by Pawlak. Lefeber, op.cit., n. 244, p. 301.

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accountability would be ex-delicto for the State if it is due to the State failure in the exercise of its supervisory duties.28 Finally, the State’s supplementary liability takes place when the operator’s liability is limited in amount and the damage sustained exceeds that amount. The 1963 OECD Convention Supplementary to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy, Art.3 states that a causal link must be found between the operator and the damage and liability does not exist for the State if the operator can invoke an exception. Lefeber observes that: 1) supplementary liability is sine delicto, 2) The State of origin may be free to settle State to State transnationally or by providing the operator with the necessary funds to cover the liability and 3) There are not many sources of International law providing for State liability in the abovementioned case.29 2.7. The Obligation to Contract Insurance Most civil liability regimes require operators to contract insurance or to provide some other financial guarantee to cover either a sum equal to the maximum compensation -where there is a fixed limit- or another sum to be determined by the national authority.30 Owing perhaps to the magnitude of the risks and corresponding insurance premiums, some instruments bar the operator from recovering against whomsoever he may be entitled so to do (for example, against a supplier who sold the defective material causing the accident), and thus he remains the only party who needs to be insured. Such is the solution found by the Vienna Convention, the Paris Convention, the Brussels Convention on the Liability of Operators of Nuclear Ships, as well as the Convention on Civil Liability for Oil

28

29 30

See 1988 Convention on the Regulation of Antartic Mineral Resources Activities, Arts. 8(3)a) j.37(3). The State obligation may be of due diligence or strict according to how it is worded. See Lefeber, op.cit., p. 302. The 1982 United Nations Convention on the Law of the Sea provides in article 139 that States parties to the Convention shall ensure that activities in the Area, whether carried out by the State or its nationals, are in conformity with the Convention. When a State party fails to carry out its obligation, it will be liable for damage. Other examples are Regulation 30 of the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and clause 16 of the Standard Clauses for Exploration contract. Id., pp. 305/6. The Paris convention: art. 10, The Vienna Convention: art. VII; The CLC Convention: art. VII.1; The Basel Protocol: art. 14; The Lugano Convention: art. 12; the Fund Convention: art. 4.2.a.

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Pollution Damage resulting from the Exploration for and Exploitation of Seabed Mineral Resources. 2.8. Limited Exceptions to Liability The existence of special cases in which there is no liability, or in which liability is not applicable to certain persons in certain circumstances, is common to most of the conventions we are examining -even if the liability they impose is absolute or strict. However, these exceptions are narrower than those included in the State responsibility rules, and have a different nature.31 Exceptions -based on incidents due to acts of armed conflict, hostilities, civil war or insurrection- are included in most instruments, as are grave natural disasters of an exceptional character.32 To the list of exceptions, the Lugano Convention adds damage “caused by pollution at tolerable levels under local relevant circumstances”, -which seems to refer to the threshold of damageand damage caused by a dangerous activity taken lawfully in the interests of the person who suffered the damage, whereby it was reasonable towards this person to expose him to the risks of the dangerous activity.33 The Basel Protocol includes in article 4.5 the possibility to prevent the attribution of liability if those liable according to the Convention prove that the damage was: a) the result of an act of armed conflict, hostilities, civil war or insurrection: b) the result of a natural phenomenon of an exceptional, inevitable, unforeseeable and irresistible character; c) wholly the result of compliance with a compulsory measure of a public authority of the State where the damage occurred;34 or d) wholly the result of the wrongful intentional conduct of a third party, including the person who suffered the damage.”35 A general exception in article 9 also states that: “Compensation may be reduced or disallowed if the person who suffered damage, or a person for

31

32 33 34 35

As mentioned above, they are not causes of exemptions of wrongfulness, since liability is not based on wrongful acts, but simple exceptions consequent to certain conducts precluding liability. Also different motivations are behind them; they are usually due to pragmatic reasons whereas exemptions precluding wrongfulness may be perhaps attributed to doctrinaire reasons, like the absolute lack of participation of human will in some of them ( force majeure) or the absence of culpa lato sensu, like in the state of necessity. Paris Convention art. 9; Vienna Convention art. IV.3; CLC art. 2.3. Lugano Convention, art. 8. Also in Lugano Convention art. 8.c. Art. 2.3 of the CLC and Art. 4.3 of the Fund convention include similar provisions.

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whom he is responsible under the domestic law, by his own fault, has caused or contributed to the damage having regard to all circumstances.” 3. Conclusion As we have stated in previous chapters, effective risk management requires legal instruments taking account of risk peculiarities. In this chapter, salient specific features of civil liability regimes were summarized considering that such regimes contain the international mechanisms currently used for the regulation of transboundary risk. Undoubtedly, they are more useful than traditional rules of State responsibility for wrongful acts, among other reasons for the absence of key aspects of State responsibility like fault and breach of obligations in the regulation of domestic activities, where States are sovereign. Their sovereignty, however, as proclaimed by Principle 21 of the Stockholm Declaration, is limited by their responsibility to ensure the respect for the rights of other States within their own jurisdictional space. Authors like Pierre-Marie Dupuy36 and Jiménez de Aréchaga object to the argument that these conventions establish obligations on the international plane.37; adducing that the obligations on individuals or private entities that result from those conventions are, in fact, imposed by the States parties to their subjects through their municipal law. Consequently, they argue, those liability obligations have no international character. That is correct. But there is one convention, as we saw, that makes primary liability fall squarely on the State. Furthermore, allocation of part of

36

37

[T]outes ces conventions internationales n’établissent qu’un régime de droit uniforme en droit international privé: la personne responsable, sans qu’on ait a établir l’existence a sa charge d’une faute y est responsable civilement, directement vis-à-vis des personnes privées ou publiques qu’elle affecte. Ce responsable peut eventuellement etre un Etat si celui-ci correspond a la definition du responsable au sens définie par les conventions parce-qu’il est, au meme titre que pourrait l’etre une societé privée, operateur de plate-forme ou de centrale núcléaire, par exemple. Autrement dit, l’Etat dans l’ensemble de ces traités, n’apparait pas en tant que personne de droit international public, mais pour ainsi dire en civil, agissant en effet a l’instar d’une personne privée” (Droit International public, Paris 2000, p. 444). “These conventions do not primarily involve State responsibility, but civil liability under the applicable domestic law. They restrict the imposition of absolute liability on States in their capacity as operators”. “…this type of responsibility …has no basis in customary law or general principles and since it deals with exceptions rather than general rules, cannot be extended to fields not covered by the specific instruments” (Collected Courses of the Hague Academy of International Law, 1978, V. 159, p. 273).

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the loss on the State -as in the layers of compensation of the nuclear and oil industries- may be considered a form of subsidiary liability, not just a gracious contribution of industry or State. True, contributors may not have had anything to do with the incident, but they were chosen because of their close relationship with the activity and their benefit from it. Given that the legal nature of liability is very flexible, those types of allocations are some of the forms liability assumes. If this reasoning is correct, States too have certain liability on the international plane. These conventions contain other State obligations, different from those derived from liability. The long and short of these obligations being that States, when they are not operators themselves, have to ensure prompt and adequate compensation to non-resident victims. States must enact legislation necessary to adapt their internal legal systems so as to give victims access to their courts and provide these courts with appropriate jurisdiction and adequate remedies -all under the aegis of the non-discrimination principle.38 That seems to be the real role of States in international conventional law whenever they are not operators: they ensure that compensation is paid under the rules of sine delicto liability. That obligation of States seems to be one of due diligence. As to domestic law, it is but an instrument of the international conventions, which set out in all cases a form of sine delicto liability on operators –or whichever private party is designed as liable. The next chapter will show that in cases where no convention exists to assign responsibility to States or operators, States usually act as if they had some sort of liability. The objective of the present chapter is to identify common criteria applicable to risk regulation in different international regimes. Besides those classically stated - like the redress of the balance of interests or the internalization of costs-, there are two at least which may be called “rational attribution of liability according to capacity for risk management” and “preventive compensation”. Channeling of liability towards determined categories of persons is a rational way of achieving risk minimization. All the regimes examined attribute liability so as to balance the interests of victims with the interests of those conducting the hazardous activity beneficial to society as a whole. Attribution does not follow classic criteria related to intention and causality, rather a flexible approach taylor-made to the type of activity being regulated. Compulsory insurance, liability caps, different tiers of liability and collective

38

Besides, States have obligations of a customary character, like those included in the 2001 prevention articles of the ILC but they do not have to do with liability.

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funds all preserve this first criterion of “rational attribution of liability according to the capacity for risk management”. The principle of preventive compensation, i.e. compensation for preventive measures is closely connected to the rational attribution of liability. Compensation for preventive measures purported to avoid imminent and more extensive harm upon the occurrence of an incident -or before that occurrence in case of the threat of an imminent incident- is included in many regimes as a form of damage suffered by the risk – bearer.39 In a nutshell: regimes dealing with risk have two clear objectives that make international liability for lawful acts a meaningful development for international law. The first is prevention and the second distributive equity. To achieve both of these objectives, one principle may be used as guide in the regulation of risk: the attribution of liability should be according to the best capacity for risk management. The consequence is the preventive aspect of compensation. Both prevention and distributive equity give fundament to a special liability regime for the regulation of risk, since they would not be easily incorporated into a traditional international state responsibility regime.

39

In the text, italics signaled that circumstance.

Chapter V

Other Aspects of International Practice 1. Introduction The present chapter deals with international practice other than conventional law regarding reparation of damages caused by hazardous activities. International practice should be revised to detect whether the classic formative elements of customary rules exist—namely, generalized practice and opinio juris—understood not as a subjective State conviction but as an objective acceptance of the rule, either expressly or by implication in the conduct of States. It is important to find out if the international community has pronounced itself, one way or another, regarding the existence of that customary rule.1 2. Reparation of Transboundary Harm Caused by Hazardous Activities States are uneasy about reparation of transboundary harm caused by hazardous but lawful activities. That unease has not helped the formation of clear rules on the matter in general international law. Extreme caution is shown towards the development of binding rules: in making ex gratia payments, for instance, States have usually proclaimed their feeling of being under no obligation to pay. Conventions have provided compensation for the most frequent cases of transboundary harm caused by specific activities, as explained in Chapter IV, but the number of ratifications or adhesions to those conventions does not show a wide acceptance of their norms by the international community. Moreover, the relative progress in conventional international law has

1

For a more complete explanation of the author’s views regarding the customary law formation process, see “The Customary Rule: from Chrysalis to Butterfly”, in Liber Amicorum in Memoriam of Judge José María Ruda (Kluwer Law International, The Hague, London, Boston, 2000), pp. 1–14.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 45–72. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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not been matched in the customary field, where sporadic incidents trigger individual responses in the form of judicial decisions or unilateral or negotiated compromises by governments. The international community seems to slowly advance in the development of general principles through episodes where—often not expressly stated—liability is the source of the obligation to provide reparation. Not all incidents lead to perceive compensation for the harm caused as a clear matter of law; States’ reluctance contributes to a skeptical climate regarding the existence of customary rules imposing State liability for the injurious consequences of non-prohibited hazardous activities. Some authors believe, however, that a principle exists at present in an embryonic state and that its full development is highly dependent on political will and the whims of international relations. In the analysis of international practice, some confusion is incurred regarding two types of damage. There lacks a clear distinction between damages caused by lawful hazardous activities, where liability applies, as opposed to those caused by noxious activities, where responsibility should be in order. Damages caused by hazardous activities and by noxious activities are not comparable: the former are generally tolerated if prompt and adequate compensation follows. Moreover, the hazardous activity causing damages, far from ceasing, is legally allowed to continue. It is permitted because continuation of the activity is allowed due to its social benefits. Noxious activities, on the other hand, may lead to the prohibition of the activity, but they are not the same as prohibited activities. For example, nuclear tests could very well have been considered noxious activities, but they were prohibited after treaties forbidding them came into existence. Under those treaties, States subject to the obligation of abstaining from making such tests incur the breach of an international obligation by the mere fact of making a test, whether or not subsequent material damage may be proved. Furthermore, all the consequences of a breach of obligation are applicable (cessation, restitution, compensation, satisfaction, guarantees and securities of non-repetition)—including procedural consequences, such as countermeasures meeting the legal conditions for their exercise.

3. Some Cases to the Point Some of the cases which will be commented upon presently have already been the object of many analyses and interpretations. The present writer will give his own thoughts about them.

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3.1. A Seminal Decision: the Trail Smelter Case2 (a Noxious Activity Transformed into a Hazardous One?) The Trail Smelter is a classic case regarding an industrial activity that caused, in the course of its normal operation, transboundary harm that reached unacceptable levels. In the 1940’s, a private smelter in Canada, through the ongoing emission of deleterious fumes, affected some woods and arable lands in the State of Washington. The damages caused, even if economically significant, were small in proportion to the value of the smelter’s production. The first part of the decision on the Trail Smelter illustrates the application of the sic utere tuo principle; it does not seem to give any argument in favor of the existence of State liability in general international law. This is so because the activity of the smelter, in the conditions in which it was conducted, was not a hazardous activity but a noxious one. Due to certain factors—like the permanent meteorological conditions in the Columbia River Valley and the composition of the fumes—the damages to fields in the State of Washington were not contingent, but a necessary consequence of the activity. The tribunal was satisfied that the obligation—confirmed later on by the Corfu Channel decision—not to use or permit the use of a State’s territory against the rights of other States had been breached.3 The agreement provided to the tribunal was to “apply the law and practice followed in dealing with cognate [i.e., similar] questions in the United States of America as well as International Law and Practice,” and to give “consideration to the desire of the High Contracting Parties [i.e., the U.S. and Canada] to reach a solution just to all parties concerned.”4 2 3

4

UNRIAA, Vol. III, p. 1963; IELR, I, 326. Trail Smelter Case 1938–1941, Part Five. The Corfu Channel decision added the concept expressed by the word “knowingly.” Cf. Corfu Channel Case. (Assessment of Compensation). ICJ Reports 1949, p. 244. The Trail Smelter tribunal, moreover, stated that the solution proposed was “just to all parties concerned” “as long, at least, as the present conditions in the Columbia River valley continue to prevail” (Id., p. 1965)— i.e., those conditions making of the smelter’s activity a noxious one. Under the April 15, 1935 agreement between the United States and Canada an arbitral tribunal was created which was to determine: 1.Whether damage caused by the Trail Smelter in the state of Washington had occurred since the first day of January, 1932, and, if so, what indemnity should be paid therefore? 2. In the event of the answer to the first part of the preceding question being in the affirmative, whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future and, if so, to what extent? 3. In the light of the answer to the preceding question, what measures or regime, if any, should be adopted or maintained by the Trail Smelter? 4. What indemnity or compensation, if any, should be paid on account of any decision or decisions rendered by the tribunal pursuant to the next two preceding questions? UNRIAA, Trail Smelter Case 1938–1941, Vol. 3, p. 1939.

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The arbitral tribunal’s conclusion regarding the source of the obligation to compensate was categorical: […] under the principles of international law, as well as of the law of the United States, 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 serious consequence and the injury is established by clear and convincing evidence.5

The arbitral tribunal considered, then, that an international obligation had been breached and compensation was in order: even though the activity in itself was lawful, the way in which it was conducted in the circumstances of the case had transformed it into a noxious one. The Court held “… that Canada is responsible in international law for the conduct of the Trail Smelter” and that “it is the duty of the Government of the Dominion of Canada to see to it that this conduct should be in conformity with the obligation of the Dominion under international law as herein determined.”6 The tribunal found support in Eagleton (“A State owes at all times a duty to protect other States against injurious acts from individuals within its jurisdiction”) and in international practice “since the Alabama case onwards”.7 The tribunal did not consider the issue of fault of the Dominion: it simply decided that the Dominion had to pay compensation for the damage done. The language used in the commented paragraph: “No State has a right,” etc., is equivalent to “A State has the obligation not to” or “A State must abstain from doing”. The tribunal most likely thought that the compensation international law imposed on Canada was a secondary obligation and fault was irrelevant, as it is in most international obligations. In that case, the conduct of Canada in inflicting on the United States territory injury by fumes was a wrongful conduct. Moreover, risk was not mentioned at all in the judgment: the activity must have been recognized by the tribunal as a noxious conduct. There is, however, another aspect of that case of interest to our research. As is known, the court prescribed a regime for the functioning of the smelter, which would result in preventing thereafter any material damage in or to the State of Washington: The Tribunal is of opinion that the prescribed regime will probably remove the causes of the present controversy and, as said before, will probably result in 5 6 7

Id., p. 1965. Id., p. 1966. Id., p. 1963.

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preventing any damage of a material nature occurring in the State of Washington in the future. [However,] if any damage […] shall occur in the future, whether through failure on the part of the smelter to comply with the regulations herein prescribed or notwithstanding the maintenance of the regime, an indemnity shall be paid for such damage.8 (Emphasis added.)

This paragraph, in conjunction with Egleaton’s citation, may be interpreted as the imposition by the Court of sine delicto liability on the State of Canada in the future, since it stressed the irrelevance of due diligence (due diligence being represented in the case by the fulfillment of the Court’s prevention regime) in the determination of the duty to compensate.9 The tribunal makes Canada “responsible in international law for the conduct of the Trail Smelter” and indemnity is payable “whether through failure on the part of the smelter to comply with the regulations herein prescribed or notwithstanding the maintenance of the regime.” (Emphasis added.) An act of the State was not envisaged in this paragraph. Following, the court added: “… but only when and if the two Governments shall make arrangements for the disposition of claims for indemnity under the provisions of article XI of the Convention.…”10 Under the new regime, the Dominion had apparently a vicarious liability with respect of the conduct of the smelter. Such type of accountability is, in this case, a form of sine delicto liability, because fault in both its meanings would not intervene in determining the liable party. In short, in this part of the tribunal’s judgment regarding the future activity of the Smelter, such activity was considered a hazardous one, because after having introduced a complete set of prevention measures (the regime), the causation of an accident would be evidence that even the exercise of the due diligence measures of prevention advised by the court had not completely eliminated the possibility of accidents happening. This margin represented the notion of risk which was missing in the first part of the judgment and the activity—subject to the prevention regime fixed by the tribunal—was now considered, whether explicitly or not, a hazardous activity. The tribunal, furthermore, did not determine that the activity should cease in case of accidental damages occurring, only that such damages had to be compensated, which meant that the smelter’s activity, the way it was now

8 9 10

Id., 1980 Ibid. Ibid. The pertinent part of Article XI read: “Upon receiving such report”—the tribunal’s report to the Governments of its final decisions—“the Governments may make arrangements for the disposition of claims for indemnity of damage, if any, which may occur subsequently to the period of time covered by such report.”

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conducted, ceased to be considered a noxious one. We might finally add that the conclusion in favor of the interpretation that the court imposed a sine delicto liability regime is reinforced by the fact that flexible methods for the disposition of claims were left to the mutual agreement of the Governments concerned. 3.2. Cases of Wrongful Conduct for Lack of Due Diligence (a) The Alabama Case As will be explained a little further, some writers opine that risk can be best managed by imposing stringent prevention obligations proportional to the risk inherent in an activity. That is correct, but their concept of “proportionality” seems to be that of requiring such a high standard of diligence as to virtually annul the possibility of avoiding responsibility. The Alabama tribunal chose a standard of diligence “in exact proportion to the risk to which either of the belligerents may be exposed, from a failure to fulfill the obligation of neutrality on their part”11—in other words, a higher degree of diligence than that invoked by Great Britain. This case is not an example of liability sine delicto but one where the British were found plainly negligent in the fulfillment of their own duties. In our opinion, however, the case does not prove much: the real degree of diligence actually employed by the British seems to have been much lower than that proposed by Great Britain herself as the right standard (“such care as Governments ordinarily employ in their domestic concerns”).12 The British conduct was found to be far from proportional to the exigencies of the situation, even from a reasonable conception of proportionality.

11 12

J.B. Moore, History and Digest of the International Arbitrations, Volume I (1898), p. 654. The tribunal found that: [T]he British Government failed to use due diligence in the performance of its neutral obligations; and especially that it omitted, notwithstanding the warning and official representations made by the diplomatic agents of the United States during the construction of the said No 290 [the Alabama], to take in due time any effective measures of prevention, and that those orders which it did give at last, for the detention of the vessel, were issued so late that their execution was not practicable. Besides, “after the escape of the vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result and therefore cannot be considered sufficient to release Great Britain from the responsibility already incurred.”(Id., p. 656)

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(b) The Corfu Channel Case13 The general rule14 stated by the ICJ in the Corfu Channel decision declaring the obligation of every State not to knowingly allow its territory to be used for acts contrary to the rights of other States15 seems to apply to cases of responsibility for wrongful acts rather than cases of liability. The word “knowingly” used in the famous passage of the Corfu Channel decision implies fault (culpa lato sensu) of the State; in the instances now under examination, “knowingly” implies the omission of measures which could have prevented the damage.16 The court found that the mine field in the channel could not have been settled without the knowledge of the Albanian Government: whether or not the court arrived at that conviction through a “liberal recourse to inferences of fact and circumstantial evidence”17 is immaterial to our analysis. The fact is that the court reached its conviction and decided Albania was responsible for the damage. Responsibility also applied, as we have seen, in the first part of the Trail Smelter, for the reasons given above, and it applied in nuclear tests18, because the case was rather one of a noxious activity of France19 and the court indicated

13 14

15 16

17 18

19

Corfu Channel Case, Judgment of April 9th, 1949, ICJ Reports (1949), p. 4. “It should be noted that in this passage the Court was making a general statement of law and policy, not limited or narrowed to any specific case. When the Court renders a decision in a case in accordance with Article 38 of its Statute, it may also declare general statements of law. The aforementioned passage is among such statements.” Survey of liability regimes, etc., Doc. A/CN.4/543, p. 79. Corfu Channel Case, (United Kingdom v. Albania) ICJ Reports 4 (1949), p. 22. The present writer finds some difficulty in classifying the Corfu Channel decision as one simply based on the lack of due diligence on the part of Albania; in his opinion there was an innuendo of something more than that in the language employed by the court: “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” Corfu Channel case cit., p. 6. (Emphasis added.) Corfu Channel case cit., p. 6 Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, ICJ Reports (1973), p. 135. The fact that there could be some accidental damage due to the “widespread radioactive fallout” on Australian and New Zealand territory and “elsewhere in the southern hemisphere” did not change the basically noxious character of the nuclear tests. See following note.

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a provisional measure based on the consideration that, if the concerns of Australia and New Zealand were justified, a judgment in their favor was possible.20 It would also have been applicable to Lake Lanoux, where the court left it to be understood that France would have incurred responsibility for an internationally wrongful act either by diminishing the volume of waters due to Spain or altering their quality.21 (c) The Sandoz Chemical Accident In 1986, fire broke out at a warehouse which contained agricultural chemicals belonging to Sandoz S.A. in Switzerland. The water used to douse the fire led to the release of water heavily polluted with toxic substances into the Rhine River, with grave damage to fishing and the extraction of drinking water. France and Germany claimed compensation to both Sandoz and the Swiss Government for an amount of close to 100 million Swiss francs. “The Swiss government acknowledged its lack of due diligence in preventing the accident through adequate regulation of its own pharmaceutical industries.”22 And both Sandoz and the Swiss Government paid a considerable sum to French and German Governments and claimants as compensation. Later on, Sandoz created a fund to help return the Rhine River to its previous condition and made donations of $7 million to the World Wildlife Fund with the same purpose. Lack of due diligence seems to have been the legal justification for the payments made by both.23

20

21 22 23

The Court, in its Order of 22 June, 1973, took note of the Australian concern that “the atmospheric nuclear explosions carried out by France in the Pacific have caused widespread radioactive fall-out on Australian territory and elsewhere in the southern hemisphere, have given rise to measurable concentrations of radio-nuclide in foodstuffs and in man, and have resulted in additional radiation doses to persons living in that hemisphere and in Australia in particular; that any radio-active material deposited on Australian territory will be potentially dangerous to Australia and its people and any injury caused thereby would be irreparable; that the conduct of French nuclear tests in the atmosphere creates anxiety and concern among the Australian people; that any effects of the French nuclear tests upon the resources of the sea or the conditions of the environment can never be undone and would be irremediable by any payment of damages; and any infringement by France of the rights of Australia and its people to freedom of movement over the high seas and superjacent airspace cannot be undone;” ICJ Reports (1973), p. 99. Affaire du Lac Lanoux (Spain v. France) 12, UNRRIA 281 (1057) at para. 6. Id., p. 143. In n. 624, quoting Pisillo-Mazzeschi. Ibid., in n. 625, quoting Schwabach.

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3.3. Invocation of a Treaty and of a General Principle of Law (a) The Gut Dam Case24 The Gut Dam case provides another precedent of sine delicto liability in international law. As a consequence of the construction of a dam in Canadian territory in 1903—which was built in order to improve navigation in the Saint Lawrence River—the waters reached unprecedented levels in 1952–53. The increase in water levels—caused by the dam plus storms and other natural phenomena—resulted in extensive flooding and erosion, causing injury to the shores of Lake Ontario in the United States. The United States presented a claim for damages against Canada before the Lake Ontario tribunal, established in 1965 to resolve the matter.25 The tribunal recognized the liability of Canada without finding any fault or negligence. The source of the duty to compensate was the Treaty signed by both parties, which stated that: … [I]f the construction and operation of the said dam shall cause damage or detriment to the property owners of Les Gallops Island, or to the property of any other citizens of the United States, the government of Canada shall pay such amount of compensation as may be agreed upon between the said government and the parties damaged, or as may be awarded the said parties in the proper court.…26

Both parties to the treaty had decided to apply liability to compensate for damages caused by a lawful hazardous activity (the construction and functioning of a dam). Moreover, Canada did not oppose exceptions, (force majeure due to atmospheric conditions which contributed to the damages caused or due diligence) which confirms her liability had a sine delicto character. In 1968, Canada paid the United States a lump-sum of $350,000 as full and final satisfaction for all claims.27 This sum did not have a direct relation with proved damages; it apparently was based on the Parties’ negotiated appreciation of the amount necessary to re-establish their balance of interests, without direct reference to fault or the type or amounts of damages taken into account. Considering that the rule applied by the Parties originated in a treaty between them, this episode does not tell much about the existence of such rule 24

25 26 27

Gut Dam Case (Canada/ United States of America), 1968, I.L.M. [8:1969], pp. 118 and 128/138; IELR, I, 386. Id., pp. 118 and 128/138. IELR, I, 393. Id., p. 423.

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in general international law, but it does point to the opinion of those Parties as to the correct way of regulating in law a hazardous activity between them. (b) The Cherry Point Oil Spill, 1972 A Liberian registered oil tanker engaged in unloading operations at Cherry Point, Washington State, suffered an accident the result of which was the spilling of some 12,000 gallons of crude oil, fouling the waters and about five miles of Canadian coast. Canada claimed “full and prompt compensation” for all damages suffered and full clean-up costs to be paid by those responsible.28 Canada invoked the “…principle established in the 1938 Trail Smelter arbitration between Canada and the United States. This has established that one country may not permit the use of its territory in such a manner as to cause injury to the territory of another and shall be responsible to pay compensation for any injury so suffered.”29 The Canadian allegation may have extended the scope of a principle applied only to willful or negligent conduct to also cover accidents. The private company responsible for the pollution offered to pay the costs of the clean-up operations; the official United States response to the Canadian claim remains unclear.30 (c) The “Cosmos” Incident31 Following the “Cosmos 954” incident, in which a nuclear-powered Soviet surveillance satellite crashed on Canadian territory in January 1978, Canada formally presented a claim to the U.S.S.R. based on the provisions of the 1972 Convention on Liability for Damage caused by Space Objects (the 1972 Convention)32 to which both countries were parties. The damages that were claimed included mostly those clean-up activities that were performed to prevent further damages (costs of response measures). It seems, however, that such damage may not have been clearly recoverable under the 1972 Convention and so Canada invoked, together with the said Convention, the U.SS.R.’s duty

28 29 30

31

32

Canadian Yearbook of International Law, Vol. XI, 1973, 333 at p. 334. Ibid. “Survey of State practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law”, Yearbook of the International Law Commission, 1985, Vol. II, part one (Addendum) p. 100. Claim against the Union of Soviet Socialist Republics for Damage caused by Soviet Cosmos 954, 18 ILM. 899–901 (1979) and additional Annex A, 18 ILM 902–908 (1979). Also in Sands, et al. (eds.) Op.cit., p. 1550. 1972, Convention on International Liability for Damage caused by Space Objects. (The Space Objects Convention.)

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to compensate based on the general principles of international law which established liability for damage caused by space activities. Canada made no reference to the breach of an obligation or of fault of the U.S.S.R. to support its claim.33 The U.S.S.R. offered to Canada, as compensation, $ 3 million for damages. According to a note of 21 March 1978 from the Soviet Embassy in Ottawa, “[T]he Soviet side, as a party to the 1972 Convention on international liability for damage caused by cosmic objects, will consider the question of such damage in strict accordance with the provisions of that convention.”34 3.4. Ex-gratia and Other Payments or Government Commitments (a) Nuclear Tests in the Marshall Islands Between 1946 and 1958, the United States, which was administering the territory of the Marshall Islands as trustee, conducted 67 atmospheric nuclear tests in this territory: 43 at Enewetak Atoll, 23 at Bikini Atoll, and one approximately 85 miles from Enewetak. The most powerful of those tests was called the “Bravo” test—a 15-megaton device detonated on March 1, 1954, at Bikini atoll. That test alone was equivalent to a thousand Hiroshima bombs.35 Most of these tests are not really cases of hazardous activities: the deleterious effects of nuclear experiments on the environment and human beings were generally known to the acting State. The fact that it was not formally prohibited does not mean that the acting State did not have any obligation to compensate for the damages caused, since it is not lawful to knowingly causing damage (Corfu Channel dictum). Some of these cases, where damage done to the environment of some places made them inhabitable, are rather examples of noxious conducts. However, some other ex-gratia payments corresponded to activities or acts which could be considered hazardous, as in the following examples. (b) Rongelap Atoll In this case, a report of the Committee on Interior and Insular Affairs of the United States Senate stated that: owing to an unexpected wind shift36

33

34

35 36

Sands, et al. (eds.) Op.cit., p. 1556. “Canada-Union of Soviet Socialist Republics: Protocol on settlement of Canada’s claim for damages caused by ‘Cosmos 954.’ ” Moscow, April 2, 1981. Unofficial translation of the note quoted from Texts of Diplomatic Communications Between the Department of External Affairs and the Embassy of the Union of Soviet Socialist Republics, 18 ILM, pp. 922/923. This “unexpected wind shift” moved us to present this case as probably one of a hazardous nature.

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immediately following a nuclear explosion in 1954 in the Trust territories administered by the United States, the 82 inhabitants of the Rongelap Atoll were exposed to heavy radioactive fallout.37 This was an accident in the framework of an activity whose inherent risk was that the effects of a nuclear explosion would get out of control. The U.S. at that time did not recognize having violated any obligation under international law even though the report concluded that: “It cannot be said, however, that the compensatory measures heretofore taken are fully adequate.…”38 The report indicated, however, that bill No. 1988 (on payment of compensation) presented in the House of Representatives was “needed to permit the United States to do justice to these people”. On 22 August 1964, President Johnson signed into law an act under which the United States assumed: “compassionate responsibility to compensate inhabitants of the Rongelap Atoll, in the Trust Territory of the Pacific Islands, for radiation exposures sustained by them as a result of a thermonuclear detonation at Bikini Atoll in the Marshall Islands on March 1, 1954,”(emphasis added) and authorized $950,000 to be paid in equal amounts to the affected inhabitants of Rongelap.39 The conclusion of the “Agreement between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association” included extra compensation for the people of Rongelap, setting aside $37.5 million to the Rongelap Distribution Authority in payment of claims arising out of the Nuclear Testing Program for loss of or damage to property and person. (c) The Fukuyu Maru Fishing Vessel The first hydrogen bomb was detonated on the waters surrounding the Marshall Islands in March 1947 and, despite the fact that the government of the United States took precautions to seal off a very wide area around the site of the detonation to prevent harmful consequences, the test caused severe nuclear fallout extending far beyond the established 30,000-square-mile danger zone. The effect of natural unpredictable systems—such as the wind—caused exposure to severe radioactive fallout to the crew of the Fukuyu Maru, a

37

38 39

“Survey of State practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law”, prepared by the Secretariat. Yearbook of the International Law Commission 1985, Vol. II, Part One, p. 99. ILC Reports 1996, Annex I. Comments on article 5. M. Whiteman, ed., Digest of International Law (Washington D.C.), Vol. 6, pp. 258–259; Vol. 4, 567.

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Japanese fishing-vessel that was out of the danger zone. The government of Japan claimed compensation for the injuries to Japanese fishermen and for the contamination of the atmosphere and the fish, which seriously disrupted the Japanese fish market. In a note dated 4 January 1955, the United States Government, completely avoiding any reference to legal liability, agreed to pay compensation for injury caused by the tests in the quantity of $2 million.40 (d) The River Mura Incident In 1959, Austria accepted to pay monetary and other forms of compensation to Yugoslavia for the economic loss incurred by two paper mills and damage to fisheries as a result of pollution in the River Mura, a watercourse forming the frontier between both countries. Pollution was caused by sediments and mud which several Austrian hydroelectric plants had released by partially draining their reservoirs in order to forestall major flooding.41 (e) The Colorado River Salinity Dispute The construction by the United States of the Imperial Dam in 1961 resulted in an increase in the salinity of the waters of the Colorado River received by Mexico, frustrating the use of those waters for irrigation in the Mexicali Valley. Both countries were parties to a 1944 bilateral treaty42 where the amounts of water to be received by Mexico were specified, but nothing was said of the quality of those waters. Mexico argued that the conduct of the United States was a violation of the treaty and the U.S. maintained that the treaty did not expressly deal with the quality of the waters and only referred to water quantity share. Mexico also argued that: “Any contamination of international water by one of the riparian partners that causes damage or loss to the other riparian party is in itself an act clearly and specifically condemned by international law.”43 The dispute was referred to the U.S.A.-Mexican International Boundary Waters Commission, an interstate negotiating body. In 1965, both countries reached a provisional agreement and, in 1972, a definitive one which solved the problem: the United States agreed to provide an annual delivery of good 40 41 42

43

Id., p. 136 Ibid. United States-Mexico Treaty for Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande(Rio Bravo) from Fort Quitman (Texas) to the Gulf of Mexico. See Whiteman, Digest of International Law, Vol. 3, pp. 945–966. Note from the Embassy of Mexico No. 4012 of November 9, 1961.

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quality water and contribute to the improvement and rehabilitation of the Mexicali Valley. This is a case where the U.S. implicitly recognized that Mexico had a right—even if, perhaps, not strictly derived from the treaty—not to suffer transboundary damage. (f) The Tanker Juliana, 1971 Juliana, a Liberian tanker, suffered an accident off the west coast of the Japanese island of Honshu. The oil it was carrying damaged shores and local fisheries extensively. Liberia offered 200 million yen to fishermen for damages, which they accepted. This is a case where the Government of Liberia accepted liability for private entities acting under its jurisdiction without any official allegation of wrongdoing on its part.44 (g) The Japanese Ship Showa Maru, 1975 An accidental oil spill in the Singapore Strait caused pollution damage to three States—namely, Malaysia, Singapore and Indonesia—the three of which claimed $28 million for damages and clean-up costs. Japan compensated partially. The affected parties also obtained from Japan help in installing safety devices for navigation in the straight.45 3.5. Reservation of Rights and Invocation of Responsibility: Other Cases (a) France-Switzerland Border, 1892 In a border incident between France and Switzerland, the 1892 French Government decided to halt its military practice exercise near the Swiss border until steps had been taken to avoid accidental transboundary injury.46 (b) Arcisate, Italy In 1948, Switzerland complained to Italy that a munitions factory in Arcisate, close to the border, had caused some damages in Swiss territory and demanded reparation, invoking the principle of good neighborliness.47

44 45

46

47

Survey of Liability Regimes…etc. Doc. A/CN.4/543, p. 141. Quoted in Nathalie L.J.T. Horbach, Liability versus Responsibility in International Law, Amsterdam 1996, p. 277. P. Guggenheim, “La pratique suisse (1956)”, Annuaire suisse de droit international (Zurich), Vol. X IV (1957), p. 168. “Survey…” cit., p. 141.

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(c) The Beaufort Sea Prospection The Canadian Government undertook to guarantee compensation for any damage that might be caused in the United States by a prospect that was to be undertaken close to the Alaskan border by a private corporation. The Canadian Government accepted liability on a subsidiary basis for payment of the cost of transfrontier damage should the bonding arrangement provided by the company proved to be inadequate.48 (d) A Mexican Highway The United States Government considered that a highway being constructed in Mexico and crossing two canyons draining northward into the United States, could flood in certain circumstances and did not offer sufficient guarantees for the security of property situated in United States territory. In a note presented to the Mexican Government, the United States reserved its rights under international law in the event of damages resulting from the construction of said highway.49 (e) The Rose Street Canal In the correspondence concerning the Rose Street Canal, both the United States and Mexico reserved the right to invoke the accountability of the State whose construction activities caused damage in the territory of the other State.50 (f) French and American Nuclear Tests in the Pacific and the Cannikin Nuclear Test in Alaska Regarding the United States Cannikin underground nuclear tests on Amchitka Island, in Alaska, Canada reserved its rights to compensation in the event of damage in the Pacific Ocean. Also, Japan and New Zealand reserved their right to hold the United States and France liable for any loss or damage inflicted by further nuclear tests. However, no claims were made.51 (g) Peyton Packing and Casuco, 1961 In 1961, the activities of two United States companies, Peyton Packing and Casuco, located on the border between Mexico and the United States, were 48 49 50 51

Id., p. 143. Id., p. 135. Ibid. Ibid.

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causing some damages in Mexican border cities. As a consequence of representations made by the Mexican Government before the American Government, measures were adopted by the companies to prevent the continuation of damages in Mexican territory.52 (h) A Belgian Refinery In 1973, the Netherlands Government communicated its concern to the Belgian Government regarding the planned construction of a refinery at Lanaye, near their common border, which threatened the nearby Netherlands National Park. The Belgian Government, asked by the Belgian Parliament about the issue,53 gave assurances to the Parliament about its intention to respect the principle of mutual information about activities that may have adverse consequences on each other of the States’ territory contained in the Benelux accords. (i) Nuclear Reactor in Dukovany In Dukovany, close to the frontier of former Czechoslovakia with Austria, two nuclear power reactors were scheduled to begin operating by 1980. The Government in Prague accepted the Austrian request for talks between the two countries regarding the safety of the plant.54 3.6. The United Nations Compensation Commission (UNCC) By its Resolution 687 (1991), the Security Council made the State of Iraq liable under international law for any direct loss, damage—including environmental damage—and depletion of natural resources or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait. A fund was created in paragraph 18 of the resolution to pay compensation for the claims falling within paragraph 16 and a Commission (the UNCC) was created to administer the fund.

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24 M. M. Whiteman, Digest of International Law (Washington, D. C.), Vol. 6, pp. 258–259. The Netherlands Government declared that it was an established principle in Europe that negotiations with affected States were obligatory before the initiation of any activities that might cause injury to their territory (Belgium Parliament, regular session 1972–1973, Questions et reponses, bulletin No. 31. Osterreichische ZeitschriftfiirAussenpolitik, Vol. 15 (1975), cited in G. Handl, “An international legal perspective on the conduct of abnormally dangerous activities in frontier areas: The case of nuclear power plant siting”, Ecology Law Quarterly (Berkeley, California), Vol. 7, No. 1 (1978), p. 1.

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The Governing Council of the United Nations Compensation Commission (UNCC) in its first resolution interpreted “direct loss” as resulting from, among other things: “(c) Actions by officials, employees or agents of the Government of Iraq or its controlled entities during [the period 2 August 1990 to 2 March 1991] in connection with the invasion or occupation; (d) The breakdown of civil order in Kuwait or Iraq during that period. It thus suggested the responsibility of Iraq for damage to the environment caused by Iraqi servicemen, even acting in a wholly private capacity, such as private soldiers looting and destroying property in their retreat.55

In practice, claimants were only required to prove the direct causal link between the environmental loss and the invasion and occupation of Kuwait, and the value of the alleged loss.56 3.7. The IXTOC I blowout The IXTOC I oil well in Campeche Bay blew out in 1979 resulting in a fire and flow of oil into the sea, fouling territorial waters of the United States and reaching the shores of Texas. Mexico rejected any responsibility for damages caused to the United States and apparently, “due to the fact that the United States found it politically undesirable to bring action against the Mexican Government,” civil claims were presented and the matter was finally resolved in an agreement. The agreement settled the claims arising from the blowout between the United States and Sedco, the company which chartered the drilling rig to the Mexican Pemex (Petróleos Mexicanos). Neither party admitted or conceded fault, negligence or legal liability for the initial blow-out, the subsequent pollution or any damages actually or allegedly suffered by any party.57 This case would have been a good testing ground for the objective of the present research had the United States Government attempted a formal claim against the Mexican Government in international law. Since it did not, the

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See Survey 2003 cit., p. 134. Mojtaba Kazazi, “Environmental Damage in the practice of the UN Compensation Commission”. p. 210 in, Environmental Damage in International and Comparative Law. Bowman and Boyle eds. Oxford 2002, pp. 111–131. Id., p. 140. Sedco agreed to pay $2 million in full and final settlement, and in exchange, therefore, the United States offered a full and unconditional release of Sedco, with full reservation of its rights against Perforaciones Marinas del Golfo (Permargo) (the Mexican drilling contractor) and Pemex. On 22 March 1983, Sedco also agreed to pay $2.14 million to settle four lawsuits filed by fishermen, resorts and others affected by the oil spill. 22 ILM (1983) 580, at p. 583.

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path left to the victims was hindered by State immunity in a domestic court. However, a private entity took charge of the liability and compensated for the damage caused.58 4. Some Conclusions on the Cases Examined The conclusion reached in the 2003 Secretariat Survey on the reservation of rights and invocation of responsibility was that: Judicial decisions, official correspondence and inter-State relations show that, in certain circumstances, States are held accountable for the private activities conducted within their territorial jurisdiction and for the activities they themselves conduct within or beyond the limits of their territorial border. Even when States have refused to accept liability as a legal principle, they have nevertheless acted as though they accepted such liability, whatever the terms used to describe their position.59

The present writer agrees with that conclusion. All the cases under examination here show that claims for transboundary damage have not been left without response even where conventional rules were not applicable: either the State or a private party, normally the operator or the owner of the concern, or another person related to the activity causing the damage, pays for the compensation. A valid conclusion may be that transboundary damage is a matter where States of origin do not feel detached when foreign claims are presented and that transboundary damage should be compensated, whether it is caused by wrongful (intentional or negligent) conduct or by the authorization of a hazardous activity by the State of origin. That concern of States is reflected in the liability and compensation conventions, where States are obliged to give access to their courts to non-residents, provide their courts with adequate remedies and, in general, ensure that foreign claims be judicially adjudicated through due process and prompt and adequate compensation. Wrongful conduct and risk make damages compensable, not prohibited. If transboundary damage were prohibited, as some authors pretend, there would be no need for the complex conventions that exist; one article would be more than enough. Surely the States feel responsible for taking some preventative measures (notification, consultation, information, authorization of the activity, etc.), the

58 59

Natalie L.J.T. Horbach, op.cit., p. 297. Survey of Liability Regimes Relevant to the Topic of International Liability…etc. Doc. A/ CN.4/543, p. 135.

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omission of which would originate responsibility.60 That belongs to the field of prevention, but regarding remedies and compensation, the States have important roles to play, and they know it. Sometimes, like in the “Cosmos 954” incident, the State of origin pays a certain amount as a result of an agreement with the affected State. In such cases, when the claim is formally advanced and seriously pursued, the payment looks more like a whole or partial admission of the claimant’s right and a transaction of compensation than it does an ex-gratia payment. Even so, ex-gratia payments strongly suggest the State of origin’s inner conviction regarding its liability: they would not be made but for the belief that some sort of compensation is due in law. Governments are not prone to give public money away and, although they enjoy certain discretion in matters of foreign relations, expenses incurred must be justified internally at least as having some legal ground. The expression “compassionate” qualifying “responsibility”—as used by the U.S. Government in the Rongelap Atoll case— seems hardly enough to deprive that word (responsibility) of all its legal weight and leaves floating in the air a suggestion that legal accountability has not been entirely alien to the decision of compensating the damage. Ex-gratia payments may also intend to avoid the creation of a precedent analogically applicable to other cases where, perhaps, the circumstances would be somewhat different or less clearly justifying compensation. Precedents are particularly valuable—or dangerous, depending on the situation—in a decentralized order like international law: their accumulation may give rise to a customary norm of a scope larger than wished by the State making, out of caution, compassion or guilt, the ex–gratia payment, or may give arguments to opponents in possible future controversies or may run counter the actual position of States making them.61 The above payments were intended as compensation for harm originated in hazardous activities. The fact that there was no breach of obligation seems to give some evidence of the acceptance of international sine delicto liability by States for harm caused by their own hazardous activities. In the particular cases examined concerning the United States, the U.S. Government

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States must also ensure that private operators, owners, carriers, etc., take in the actual conduction of the activity all reasonable measures to prevent the occurrence of accidents causing harm. An upper or lower riparian State, for instance, will never make compensation in whatever field which may compromise its position in the field of watercourses; neither will an important pollution exporter regarding liability for transboundary damage. Therefore, ex-gratia payments are made.

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did not go into the matter of whether fault was required to justify the payments, thus going a certain way in expressing its own opinio juris on this practice. 5. Transboundary Damage in International Law: the Role of the State Are States of origin accountable in international law for transboundary damage caused by hazardous but lawful activities? If so, are they subject to liability or to responsibility? In conventional international law, some forms and degrees of liability are assigned to the State, in a gradient going from the convention on responsibility for objects launched to the space—where State liability is primary and absolute62—down to conventions on nuclear and oil industries, where the State has subsidiary liability. As regards international practice, other than in treaties, opinion is divided. A brief review of learned opinion will show different positions vis-à-vis the existence and role of liability in general international law. 5.1. Learned Opinion Learned opinion is divided between (a) those who believe that there is for either State or individual liability no place at all in general international law and (b) those for whom liability either exists as an exception in certain sectors, like ultra-hazardous activities and environmental law, or is an emerging principle of international law. Before entering into the examination of doctrines, a caveat should be made—i.e., that reversing the onus probandi is not a form of objective liability, even if the effects of both mechanisms are not far from each other. Reversing the burden of proof only changes the party who must prove the existence of the subjective element of fault (culpa). (a) Doctrines in Favor of the Existence or Emergence of a Principle of Liability Sine Delicto (i) The Abuse of Rights Doctrine The doctrine of abuse of rights belongs to something like the pre-history of legal opinion on this matter. It was abandoned in the middle of the 1960s. F.V. García Amador, as the first Special Rapporteur of the responsibility topic,

62

See n. 2.

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considered that States had the right to conduct or allow the conduction in their territory of all sorts of activities, but permitting hazardous activities in detriment of other States was an abuse of rights (abus de droit). The doctrine of abuse of rights found little support in learned opinion. Ian Brownlie resumes: “In conclusion, it may be said that the doctrine is a useful agent in the progressive development of the law, but that, as a general principle it does not exist in positive law.”63 Abus de droit, moreover, is not an exception to the alleged general principle that only wrongful acts give rise to State accountability, because if a general rule of international law prohibits the abuse of rights, any abuse of right means a breach of that general rule and is, therefore, an international wrong. (ii) Ultra-Hazardous Activities: the Protection of the Environment As a reaction to the eruption of industrial and technological activities, and the ever growing risks they have brought about, as well as the increasing preoccupation for the environment, some writers were inclined to admit in international law principles of strict liability which were well known and applied in domestic legal systems.64 Ultra-hazardous activities (Wilfred Jenks,65 L.F.E.Goldie66) were proposed de lege ferenda as an adequate field of application of no-fault (culpa) liability, whereas other writers went farther by accepting that liability applied to those activities as a principle of positive law

63 64

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Principles of International Law, 3d ed., Oxford 1979, pp. 443 ss. A precursor was Max Sorensen, (Cf. Principes de droit internacional public, Cours général, Recueil des cours. Vol. 101, 1960, III, p. 222). In his general course at the Hague Academy of International Law, he proposed to extend no-fault (culpa) liability to international law in order to indemnify damages caused by high-risk activities. To Jenks, international law was moving towards admitting strict liability for ultra-hazardous activities. He proposed a UN Declaration that States would be responsible for ultra-hazardous activities developed within their jurisdiction or undertaken on their behalf or with their authorization. V. Jens, “Liability for Ultra-Hazardous Activities in International Law” in RC, Vol. 117, 1966, I, pp. 99 ss. Goldie followed Jenks’ general ideas. He based them on legal principles like the balance of interests between the victims of damages and the society. Hazardous activities, despite the risks they entailed, should continue for reasons of social benefit, but damage due to an act, even a lawful act amounted to an expropriation of amenities as well as an unjust enrichment if uncompensated. (“Strict and Absolute Liability and the Ranking of Liability in Terms of Relative Exposure to Risk” in the Netherlands Yearbook of International Law, Vol. XVI, 1985, pp. 175, ss, esp. p. 189). Liability was an emerging principle of international law because of the number of conventions adopting it. V. Goldie, “International Principles of Responsibility for Pollution” in Columbia JTL, Vol. 9, 1970, pp. 283 ss, esp. p. 295.

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(R.Luzzato,67 Philippe Cahier,68 J. Kelson69) and other writers extended that principle to the protection of the environment (Jan Schneider,70 A.L.C. De Mestral71). In relation to transboundary pollution, M. Politi72 and Tullio Scovazzi73 perceive an evident trend in international law to admitting an objective form of liability for ultra-hazardous activities. Meanwhile, J.G.Lammers74 believes in the existence, in respect of international watercourses, of a due diligence obligation of the State to prevent and abate transboundary pollution, the breach of which would constitute a wrongful act of the State. However, State conduct is stripped of wrongfulness if there is force majeure, a fortuitous event, distress or a state of necessity: those would be cases of liability if compensation is allowed in international law. (Art. 27 (b), 2001 ILC articles). Lammers adds to that category “noxious activities” (causing damage in their normal operation) if there is a great disproportion between the cost of prevention or abatement and the cost of the damage itself. As to the activities “merely” entailing risk— he is referring here to the so-called “ultra-hazardous” activities—there is strict liability neither in customary international law nor as a general principle of 67

68

69

70

71

72

73

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Luzzato, “Responsabilità e colpa in diritto internazionale” in RDI, Vol. 51, 1968, pp. 53 ss, esp. pp. 85–107. “Le problème de la responsabilité pour risque en droit international” in Les relations internacionales dans un monde en mutation, Institut de hautes études de droit internacional, Leiden, pp. 427/428. It may be recalled that no-fault liability is a liability without subjective fault; Cahier goes further and thinks of liability sine delicto—i.e., without breach of obligation. However, Cahier limits this reasoning to activities operated by the State; in case of private operators, the State will be responsible only for the due diligence employed in the fulfillment of its obligations. Id., pp. 431/432. “State Responsibility and the Abnormally Dangerous Activity” in Harvard ILJ, Vol. 13, 1972, pp. 197 et seq. “State Responsibility for Environmental Protection and Preservation: Ecological Unities and a Fragmented World Public Order”, in Yale Studies on World Public Order, Vol. II, 1975, pp. 32 et seq. “The Prevention of Pollution of the Marine Environment Arising Out from Offshore Mining and Drilling” in Harvard ILJ, Vol. 20, 1979, pp. 469, esp. pp. 485 ss. “Miniere d’uranio nelle Alpi Marittime, inquinamento transfrontaliero e tutela internazionale dell’ambiente” in RDIPP (Rivista di diritto internazionale pubblico e processuale), Vol. 17, 1981, pp. 552 a 581. The obligation of prevention exists only for very exceptional cases of environmental alteration (space activities, extraction and transportation of hydrocarbons, nuclear activity). He also admits exceptional cases of objective responsibility for violations of the innocuous use of the territory. “La responsabilità internazionale in caso d’inquinamento transfrontaliero” in Rivista Giuridica Ambientale, Vol. I, 1986, pp. 272/289 and pp. 274/281. Pollution of International Watercourses, Boston-The Hague-Dordrecht-Lancaster, 1984, pp. 629/661.

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law of Art.38 of the ICJ Statute. But he admits a clearly perceptible trend in the domestic law of States to admit a principle in that sense. In the opinion of the Bruntland Experts Group,75 ensuring that compensation is provided for substantial harm caused by an environmental interference resulting from hazardous activities carried out or permitted by a State is a condition for such activities to be lawful. Although the rule was formulated as applying to an environmental interference, it may perhaps be also extended to any other kind of significant transboundary damage caused by a hazardous activity. For the Group, compensations should be established under no-fault liability—the basis for which is to be found in a number of treaties and other international instruments. The Group considers, however, that international practice shows a very varied picture and it does not yet allow definitive conclusions as to the (non) existence of a customary rule or principle of international law imposing liability upon States on account of ultra-hazardous activities.76 Günther Handl, dealing with transfrontier pollution, considers that there is responsibility for wrongful acts if the principle of innocuous use of a State’s own territory is violated.77 There would be no objective responsibility for accidental pollution78 but, in very special cases, a primary obligation of reparation would exist if there is “relevant recognizable” transboundary risk inherent to an activity that cannot be eliminated even taking reasonable precautions. Handl considers this opinion supported by equity, by a general principle of law and the sovereign equality of States.79 75

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78 79

Bruntland Report on Environmental Protection and Sustainable Development. Expert Group on Environmental Law of the World Commission on Environment and Development. Graham and Trottham /Martinus Nijhoff, London, Dordrecht, Boston, 1986, pp. 80 et seq. The Group quotes the Convention on International Liability for Damage caused by Space Objects and the Rio de la Plata Treaty between Argentina and Uruguay (Article 51 on water pollution) as an example of State strict liability but points out that the State of origin may fulfill its obligation by imposing such liability upon the developer or operator and in support of this solution several international instruments are quoted which are well known in the field: the 1952 Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, the 1960 Paris Convention and the 1963 Vienna Convention, both on liability for nuclear damages; the 1967 London Convention on Civil Liability for Oil Pollution Damage resulting from the Exploration for and Exploitation of Sea Bed Mineral Resources and the 1969 Brussels Convention on Civil Liability for Oil Pollution Damage. “Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited”. In CYIL, Vol. 13, 1975, 158/162, “Responsabilità internazionale nell’inquinamento marino” in Starace (ed), Diritto internazionale e protezione dell’ambiente marino, Milán, 1983, pp. 144 ss. Id., p. 149. Ibid., p. 156 y p. 175.

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(b) Positions Contrary to Liability Contrary to the above positions, some authors maintain that all accountability in international law is exclusively based on wrongful State conducts. The neminem laedere principle underpins doctrines limiting the sovereignty of States by means of primary obligations—like the innocuous use of State territory, good neighborliness or no transboundary pollution. If the obligations imposed by the principles these doctrines proclaim are breached, responsibility for wrongful acts arise. Leading the way was Sir Gerald Fitzmaurice80 who declared in the ILC debates on the reports of García Amador that there is no liability for lawful conduct in international law. A similar position was adopted by E. Jiménez de Aréchaga,81 B. Greafrath,82 B. Conforti,83 P-M. Dupuy84 and others. With regard to the conventions usually deemed to apply international liability sine delicto, Pierre-Marie Dupuy85 believes that improving the regime of the proof in charge of the victims in order to facilitate their access to reparation is the real issue in this matter.86 States, in dealing with dangerous activities carried on in their territory, must deploy a degree of diligence proportional to the danger created in order to prevent the harm: to ultra-hazard corresponds ultra-prevention.87 Eduardo Jiménez de Aréchaga, referring to the liability subject in the ILC, said: “The difficulty of making such codification is that this type of responsibility only results from conventional law, has no basis in customary law or general principles and, since it deals with exceptions rather than general rules cannot be extended to fields not covered by the specific instruments.”88

80 81 82

83 84

85

86

87

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Yearbook of the International Law Commission, 1957, I, p. 164. “International Law in the Past Third of Century”, RC, Vol. 159, 1978, I, pp. 267/269/271. “Responsibility and Damages Caused: Relationship Between Responsibility and Damages.” In RC, Vol. 185, pp. 34 ss, esp. pp. 20 and 104/118. Diritto internazionale, 3a Ed., Napoli 1987, pp. 378/379. Cf. “La responsabilité internationale des États pour les dommages causés par les pollutions transfrontières”, pp. 374 ss. In OCDE Aspects juridiques…pp. 369/395. See also La responsabilité internationale des États pour les dommages d’origine technologique et industrielle, Paris, 1976, p. 33. Droit internacional public, 5th ed., Paris 2000, p. 444. He makes an exception with the liability for space objects convention. “Le problème réel ne réside pas dans une appréciation de liceité mais dans la recherche d’une amélioration du régime des preuves mis à la charge de la victime afin de faciliter dans toute la mesure du possible son accesión aisée à la réparation”. Op.cit., p. 445. “Celui-ci”(the State) “précisement parce que l’activité est dangereuse, doit déployer la diligence requise pour en eviter, dans toute la mesure du possible, les consequences dommageables.” Ibid. Collected Courses of The Hague Academy of International Law, 1978, V. 159, p. 273.

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Paul Reuter also maintains that a norm imposing liability is not to be found in international practice, but that the practice existing in some sectors—like in neighborhood relations or nuclear and space activities—could be validated by a presumption that the State did not employ all the precautions required by the high risk inherent to the activity.89 Quadri shares the general skepticism of this current of opinion, and maintains that liability is not really a form of accountability, but a guarantee granted by the State. Quadri also maintains that the legal basis of reparation is not a general principle of law but the fact that activities such as nuclear tests, notwithstanding their lawful character, are limited by very severe obligations of prevention, like avoiding any predictable damage.90 Brownlie also agrees, in general, with this position.91 After exploring the opinions of writers, the case-law, the treaty practice and the State claims in the matter of transboundary damages, Birnie and Boyle are skeptical about the existence of a rule imposing liability in general international law—at least regarding pollution damage.92 They admit, however, that “an argument based on general principles cannot be dismissed,” since general principles of law in Article 38 of the Court’s Statute are not imported into international law, as Lord McNair would say, “lock, stock and barrel, readymade and fully equipped with a set of rules,” so the matter is thus one of “legal policy and principles.”93 But Birnie and Boyle do believe that “objective responsibility for breach of an appropriately defined obligation is a firmer foundation for a standard of responsibility not depending on a failure of due diligence.”94 René Lefeber recognizes that there is a gap in the international legal system which the proliferation of special civil liability regimes has not managed to fill. That task, he suggests, could be done by an obligation of the State to ensure prompt, adequate and effective compensation as part of a compound obligation to prevent and abate transboundary environmental interference causing significant harm.95 In his view, the obligation to ensure prompt, adequate and effective compensation is a primary norm, the non-observance of which would result in liability ex-delicto.

89

90 91 92 93 94 95

“Le dommage comme condition de la responsabilité internationale” in « Estudios de derecho internacional. Homenaje al profesor Miaja de la Muela”, Vol. II, pp. 839/840. Quadri, Rolando, Diritto Internazionale Pubblico, 5a Ed., Napoli 1968, pp. 590/591. Principles of International Law, 3d ed., Oxford 1979, pp. 443 et seq. Patricia W. Birne and A.E. Boyle, op.cit., pp. 141/147. Id., p. 148. Ibid. Lefeber R., Transboundary Environmental Interference and the Origin of State Liability, Kluwer Law International 1996, p. 230–232.

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Lefeber wonders96 whether or not liability sine delicto is likely “to become part of extra-conventional international law, at least in the near future,” and arrives at a negative conclusion because: “The apparent repudiation of liability sine delicto by major industrialized States, including the majority of the G-7 … is likely to prevent the adoption of a framework agreement as initially envisaged by the Special Rapporteurs of the ILC,” and that: “their persistent opposition in combination with the fragmentary state practice will furthermore prevent it from entering the body of customary international law.”97 In international environmental law, Lefeber finds two major obstacles: namely, the no-act-of-the State exemption98 and the due diligence exemption.99 He does not find in his panoramic exploration of the law—domestic and international—the existence of a principle imposing the abandonment of those exceptions. Another point in Lefeber’s analysis is that: [T]he proliferation of harmonized special civil liability regimes has superseded the developments of state-to-state liability and should not be cited in support of a general principle of law amounting to the abandonment of the no-act-of-thestate exemption and/or the due diligence exemption in international environmental law. It affirms that one should be careful in transplanting concepts of municipal law into international law.100

Lefeber also quotes Birnie and Boyle, referring to the general attitude of States in this matter: “[i]nstead of developing the law they have de-emphasized their own responsibility by adopting civil liability schemes or encouraging equal access to national legal remedies for private parties.”101 Louise de Lafayette, in an article referring to the ILC treatment of liability, seems to believe that an important part of the problems facing the ILC originated in confusion between the legality of the activity and the illegality of causing damage. She states: Serious misunderstandings have been caused by the emphasis on the legality of the activity. For example, some members of the Commission and of the Sixth 96 97 98

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Op.cit., Chapter 7. Lefeber R., op.cit., p. 232. No consequences to a State for an act which is not an act of that State. No State has to “assume liability towards persons who suffer harm outside its jurisdiction if these persons have suffered harm caused by activities within its jurisdiction or control”. Id., p. 182. No consequences to a State for a result which has happened in spite of the due diligence of that State in trying to prevent it. “The due diligence exception permits the source state to evade liability for harm caused by non-governmental activities if it has exercised its governmental functions in respect of such activities with due care” Id., p. 182. Id., p. 230. Ibid.

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Committee have wondered why compensation should be paid for damage caused by an activity that was perfectly legal. However, what matters is not that the activity is legal, but that the causation of damage is illegal.102

She believes, in conclusion, that: [T]he ILC should recognize that what it is really addressing is a specialized area of state responsibility and that there are two obligations involved: an obligation of conduct to prevent transboundary harm and an obligation of result, to ensure on the basis of strict or objective liability that transboundary harm does not result from activities within a state’s jurisdiction or control.103

6. Conclusion However we look at it, damage is never indifferent to law, and transboundary damage is not indifferent to international law. All the arguments examined above seem to indicate that a risk of damage to States created by a hazardous activity in the territory of another State or under its control places that activity in a grey zone in general law; it is not illegal but must be permitted only under certain implied conditions, one being the exercise of maximum care in the prevention of transboundary harm and the other re-establishing the broken balance of interests by compensating any damages done. In all the cases examined, the claims for either the damage caused by a wrongful conduct or due to the risk created have not been left without response.104 The lawful character of activities implies no breach of primary obligations, which makes for more flexible standards applying to compensations. Two distinct thresholds of risk may be identified in the light of the above considerations. The first would determine that harm caused by lawful hazardous activities exceeding the level of accepted harm should be compensated. The second would define the ceiling beyond which an activity may be declared

102

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Louise de Lafayette, “The ILC and International Liability: A Commentary” Reciel. V.6, Issue 3, 1997, p. 327. Ibid. After this sentence, she more realistically admits that the Commission was operating under some constraints, and wonders what the Commission should do “when comments made by states in the Sixth Committee and elsewhere are based in ignorance of the law? Or if states reject in the context of the draft articles proposed by the Commission concepts and rules of law that have been willingly accepted in other contexts? Can a general principle of law be changed through the objection of some states to the work of the Commission, with the result that a set of articles may be adopted that is contrary to existing law? Ibid. Good question, but States make international law, not professors. See Chapter VIII. As concerns the Chernobyl accident, no formal claims were presented. In the case of the IXTOC I blow-out and other cases the response came from the private sector.

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unlawful and State responsibility would be triggered by the mere existence of the unlawful activity, without any relationship with the damage caused. In the former case, compensations may take different forms of restoring the balance of interests. In the latter, criteria of responsibility for wrongful acts have a clear objective: “Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”105 As to the illegality of certain activities, the consent of risk-bearers may depend on the tolerance different societies may have regarding high degrees of risk. That may also affect the level of thresholds and ceilings if the activity is accepted internationally. Reparation for sine delicto liability is an “in between” solution that allows activities to continue functioning while enabling the equitable shift of external costs towards suitable individuals or entities. The fact that sine delicto liability has a distributive, and not a corrective, aim strengthens the idea that compensation for the risk or damage beyond a certain threshold should be provided for and the burden of damage channeled to the most suitable party, according to chosen ways of distribution. In integrum restitutio is not indispensable, but compensation should ensure that costs related to the bearing of the risk or consequences of harm are rationally or equitably allocated. In this sense, criteria such as “adequate” and “prompt“ compensation seem to be the most often used to find a balance between the interests of parties involved in sine delicto liability cases.

105

Chorzow Factory Case, PCIJ, Series A, No. 17, 1928, pp. 47–48.

Chapter VI

The Development of the Subject at the International Law Commission 1. Introduction Telling the story of the development of the subject of liability at the International Law Commission has a twofold purpose. One is to give the reader a glimpse of the discussions and reflections of Commission members and Special Rapporteurs on the topic and thus provide a better understanding of how its theoretical bases were debated and decisions adopted. The other is to note the particularly difficult circumstances confronting the topic, mainly because of States’ reluctance to accept compromises of a general character, especially on a new field like liability, where their preference was clearly for international conventions on specific activities. Consider that only a few conventions on specific activities set up residual State liability; most of them had none. The novelty of the subject, the said reluctance of States and the paucity of international practice on the matter caused the first two Special Rapporteurs and the Commission itself to approach the topic of liability by trial and error,1 starting with the search for a conceptual basis for the subject by the first Special Rapporteur. Texts were proposed and changed in the light of observations made in the Commission and in the General Assembly’s Sixth Committee, instead of sending them straight to the Drafting Committee for it to make a formal proposal. Trying to obtain a more or less general agreement on the aspects examined before covering new ground made for a lot of comings and goings which slowed down the progress of the subject2 and made the task difficult for commentators and scholars interested in following the work of the Commission on the conceptual basis for the topic.3 1

2

3

At least, that was the case of the present writer, who succeeded Professor Robert QuentinBaxter and was Special Rapporteur for 12 years. The first Special Rapporteur, Professor Quentin-Baxter, submitted after six years of work a Schematic Outline of the Topic and five articles, which were reconsidered by the Commission at the suggestion of the second Special Rapporteur. Many times articles provisionally proposed by the Special Rapporteur were taken as definitive by commentators.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 73–118. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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The Second Special Rapporteur (the present author Barboza) felt himself obliged to clarify that: Starting from the sixth report, given the very special nature of the topic and the absence of precedents for a general instrument such as the one the Commission might be putting forward, most of the articles are completely experimental, since they were intended simply to elicit the reaction of colleagues and of the Sixth Committee and to give a full picture of the possible range of the draft articles.4

In fact, that could be said of all articles proposed—including those of the 1996 Working Group but excepting those provisionally approved by the Commission. 2. How the Commission Works The Commission has working methods of its own.5 There is a single consolidated method for both codification and progressive development of international law. The Commission appoints a Special Rapporteur for each subject, who develops particular aspects of his topic through successive reports submitted to the consideration of the plenary until its completion. There is a plenary debate on each report. The articles considered in those debates are sent to the examination of the Drafting Committee (DC). In spite of its name, this Committee is more than a drafting body: it is the core of the Commission, being the only forum where members may informally discuss their differences and reach compromises.6 The texts as approved and reported to the Commission by the Drafting Committee may, of course, be modified by the plenary, but such modifications are usually minor since the debates in the Drafting Committee are open and offer to all members of the Commission the opportunity of expressing their views. If the DC does not settle down to working on a draft, the draft is paralyzed.7 There are two successive readings of each complete draft, the second

4

5

6

7

Eighth report on international liability for injurious consequences arising out of acts not prohibited by international law, by Mr. Julio Barboza, Special Rapporteur. Doc. A/CN.4/ 443, p. 61. The Commission speaks through the articles it proposes. In the annual reports presented to the General Assembly, those articles are accompanied by conceptual considerations and commentaries. With the exception of the working groups, which are being increasingly in use by the Commission. That is what happened with the liability subject due to the commented hesitations and very late remission to the DC of the corresponding articles.

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one normally taking shorter time than the first, then the draft articles as approved by the plenary are sent to the General Assembly (GA) with a recommendation on their final destiny. They may be the basis of a convention if the General Assembly convokes a codifying conference,8 they may be the matter of a normative resolution of the GA9 or they may simply be taken note of by that body. 2.1. The Line Followed by the Commission The prevailing preoccupation in the International Law Commission—and apparently also of the General Assembly at their first contact with the liability topic—was that of getting it out of the way of State responsibility for wrongful acts. That is confirmed by the following paragraph of the 1973 Commission’s report on the responsibility topic: From the outset of its work on the topic of State responsibility, the Commission agreed that that topic should deal only with the consequences of internationally wrongful acts, and that, ‘in defining the general rule concerning the principle of responsibility for internationally wrongful acts, it was necessary to adopt a formula which did not prejudge the existence of responsibility for lawful acts’. That conclusion met with broad acceptance in the discussion of the Sixth Committee of the General Assembly at its twenty-fifth session, in 1970.10

The result of the ILC’s stance was faithfully reflected in the much quoted paragraph of its 1973 Report: Owing to the entirely different basis of the so-called responsibility for risk and the different nature of the rules governing it, as well as its content and the forms it may assume, a joint examination of the two subjects could only make both of them more difficult to grasp. Being obliged to accept the possible risks arising from the exercise of an activity which is itself lawful, and being obliged to face the consequences—which are not necessarily limited to compensation—of the breach of a legal obligation, are two different matters. It is only because of the relative poverty of legal language that the same term is habitually used to designate both.11

That was, of course, the firm conviction of the influential Special Rapporteur of the responsibility subject, Roberto Ago, who was completely convinced that

8

9

10 11

As was the case in several Vienna Conventions, like those on the law of treaties, diplomatic and consular relations, State succession, etc. The draft on arbitral procedure may be an example at hand; its articles were recommended by the General Assembly as guidelines for States to follow in arbitration procedures. Yearbook of the International Law Commission, 1978, Vol. II, Part Two, p. 149. Id., pp. 152/153.

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responsibility and liability were two entirely different species and consequently wanted to rid his subject of an alien body. In the 1973 debate on Art.1 of his subject (State responsibility) these were his words: “If injury caused by a lawful activity—that was to say, one that was not prohibited, such as activities in outer space—entailed an obligation to make reparation, that was not, strictly speaking, a matter of responsibility but of a guarantee.”12 The mandate of the General Assembly and the report of the Working Group appointed to give a preliminary opinion on the new topic only confirmed the same line of research.13 The 1978 Working Group14 noted that the topic was a new one. Reference was made to the relation of the subject with the nuclear industry, the regime of outer space, the principles of the Stockholm Conference on the Environment and transactions of a regional or local character in relation to shared resources, the work of the Third Law of the Sea Conference regarding maritime pollution and the risks attendant upon the sea carriage of oil. Principle 21 of the Stockholm Declaration was also mentioned. The obligations to be considered were distinguished from those owed by a State to aliens who placed themselves or their property within that State’s territory; there was neither a presumption of willingness to accept risks or harmful consequences nor a requirement to seek an effective remedy offered by municipal law. A positive comparison was instead drawn with obligations of riparian States of a watercourse, which demand a balance between the purposes to be served by a given use of territory and the unwelcome consequences that such a use could entail for other States and their nationals. The essential obligation owed by a State in such a context was one of care or due diligence, in relation either to its own activities or to private activities within its jurisdiction or control. No criterion of this kind could of itself provide a means of regulating liability for the dangers inherent in certain major fields of activity made possible by modern technology: however stringent the standard of care observed, an accident—if it did occur—would probably be large in scale and in the extent of its injurious consequences. The Group noted the practice of States to resort to a rule of “absolute liability” in regard to those dangers on specific activities, often accompanied by a limitation of the extent of liability. A further and more

12 13

14

Yearbook…1973, Vol. I, p. 14. “Report of the Working Group on international liability for injurious consequence arising out of acts not prohibited by international law”, Yearbook…1978, Vol. II, Part Two, p. 150. The Working Group was composed of Robert Quentin Baxter (Chairman), Roberto Ago, Jorge Castañeda and X.J.C.Njenga. Id., pp. 152/153, 171.

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extensive responsibility based on the duty of care or due diligence could or could not be excluded. The Group acknowledged that the most fundamental connections of the new topic were with that of State responsibility. The Group admitted the need to clarify the relationship between the liabilities of conventional regimes and the obligations owed by States under customary law. The use of the term “liability” did indicate, however, that the topic could be approached largely in terms of the primary rules contained in conventional regimes, and “should not attempt to parallel the extensive consideration that the Commission is giving to secondary rules in the course of its study of State responsibility.” The topic was pronounced suitable for codification and progressive development in accordance with the Commission’s usual working methods. The Commission thus went ahead with the subject with a considerable number of its members as well as delegations in the Sixth Committee dead set against the idea of the existence of State liability in general international law and, consequently, against the codification of the topic. Progressive development of the law being, however, also one of the objectives fixed in Article 13.1(a) of the UN Charter, the Commission directed the exercise towards the regulation of risk on the international plane. Such an objective could have been attained through a comprehensive and detailed set of rules or by a small number of principles, leaving their fleshing out to practice. However, the schematic outline already involved a rather complex and detailed procedure and more contributions from different sectors of the Commission were incorporated to the draft articles as the subject developed in the hope of satisfying a greater number of members and reach some consensus on the topic. The stubborn fact remained that a sizeable number of Commission members and an important group of States in the Sixth Committee continued to be uncomfortable with liability, and that they—right or wrong—represented the opinion and the interests of a very important sector of the General Assembly. The fact also remained that another section of the same Assembly wanted to linger on with the topic in the hope of reaching some sort of compromise. To judge by the annual Resolutions directing the Commission to continue with the subject, the latter position represented the majority of the General Assembly. Finally, the Commission drafted a more or less complete and detailed set of articles on “prevention.” Meanwhile, on “allocation of loss” (previously “liability”), only eight general principles were proposed.15

15

That was what the second Special Rapporteur thought in 2002, after the end of his mandate. See Julio Barboza, “Liability: Can We Put the Humpty-Dumpty together again?” in Chinese

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3. The Successive Drafts In order to guide the reader through the labyrinth of proposed articles, some overlapping each other, it will be necessary to examine the drafts presented up to 1997. Then we shall proceed to examine the 2002 articles on “prevention” and those of 2006 on “allocation of loss.” As to the drafts presented up to 1997, these were: • The five reports and the schematic outline of the first Special Rapporteur (Quentin Baxter) • The complete system proposed in the tenth report of the second Special Rapporteur (Barboza). • The reports of the 1996 and 1997 working groups. 4. Quentin-Baxter’s Conception It may be worthwhile to review, in a nutshell, the main ideas of Professor Robert Quentin-Baxter as the first Special Rapporteur of the Commission’s liability topic before entering into the analysis of the liability topic’s issues. In his task, Professor Quentin-Baxter was very concerned with two taboo-like hurdles: he did not want to trespass into the Commission’s topic of “responsibility” and, at the same time, he did not want his topic to be assimilated into “strict liability.” This Scilla-Caribdis sort of situation influenced his writings, and—considering the absence of any other known form of accountability in law other than “responsibility” and “liability”—he found himself—as did the next Special Rapporteur—with very little in his hands. In the view of the late Professor Quentin- Baxter, State liability was interpreted as a continuum that started with prevention and minimization and then ended with compensation.16 He asked himself: “But what is prevention and what is reparation? Reparation has always the purpose of restoring as fully as possible a pre-existing situation; and in the context of the present topic, it may often amount to prevention after the event.”17

16 17

Journal of International Law, 2002, Number 2, p. 523. “A consensus should be looked for on the core of a liability regime and proposed by the Commission to the GA for a general normative declaration—not for a convention—which could serve as the point of departure of a customary development. We all know the place that custom occupies in the international community nowadays and how it develops with relative rapidity from texts through the general acceptance by the States.” Id. By a “consensus on the core,” the author meant a consensus about the main principles underpinning the subject. Ibid. René Lefeber, op.cit., p. 195/197. Yearbook… 1983, Vol. II, Part One, p. 214 (Doc. A/CN.4/373).

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Prevention, Professor Quentin-Baxter maintained, was governed by a primary norm. That primary norm was a compound one providing prevention and imposing reparation in the case of harm. Reparation could loosely be considered a “secondary element”—i.e., an element proper of a secondary rule— within the primary norm.18 The idea of a compound primary norm, with due respect, does not seem correct. The breach of prevention rules leads to the realm of responsibility and therefore to secondary norms imposing obligations of a secondary nature. Compensation in case of damage belongs, in a liability regime, to the primary norm and comes about without the breach of any obligation. The times of prevention and of reparation are different: mixing them up in the primary norm forces the logical structure of the norm beyond acceptance.19 In the same context, there was another dilemma: though on one side, prevention offered the only firm basis on which to ground the topic in general international law, on the other, prevention was managed through primary obligations the breaches of which constituted wrongful acts. There was an obvious invasion by “responsibility for wrongfulness” into a subject from whence it was banned by hypothesis and by the title itself. That was surely the reason why, in the procedure installed by Professor Quentin-Baxter’s schematic outline, the obligations of prevention, notwithstanding their prestige, were of a “soft” nature: their breach did not give the injured State any right of action. So, the purification of the schematic outline was achieved at the cost, alas!, of logic.20 Equating reparation with prevention after the event was, however, a subtle and ingenious thought. It certainly was impossible to put it in normative terms the way Quentin-Baxter suggested because of the reasons stated above. But the substance of the reasoning was impeccable: why should law treat in an opposite manner two elements which had the same finality, being both legitimate and legal? Prevention as well as reparation were intended to protect a certain status quo, one from risk of harm, the other one from damage. Was not, then, conceptually obtuse to set at the same time the compulsory nature of prevention against the risk created and the impunity of the damage

18

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20

Ibid. Lefeber also affirms the existence of a single compound obligation of the source State “to take all procedural and substantive measures that may be necessary to avoid, minimize and repair environmental interference causing significant harm during the life cycle of an activity”, René Lefeber, op.cit., pp. 34 ff. Besides, the fact of putting both prevention and compensation in one norm does not extend to compensation the quality of positive law that has prevention. The next Special Rapporteur (Barboza) found himself in the same predicament and followed, for a time, the same path.

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caused by effect of the risk? Particularly when that attitude violated both the sovereign equality of States by giving the State of origin an unjustified advantage and permitting the violation of the risk-bearer State’s territorial integrity? Those two are well established principles of international law, from which to deduct the principle of liability. That is why we believe that sine delicto liability is in reality not an emergent principle of international law, but an actual principle which is not applied. The first Special Rapporteur apparently looked upon liability as, eventually, inevitable and so displaced its encounter with the Commission topic towards the end of the line. At the very end of the day, when all the opportunities of regime building have been set aside—or, alternatively, when a loss or injury has occurred that nobody foresaw— there is a commitment, in the nature of strict liability, to make good the loss. The Special Rapporteur finds it hard to see how it could be otherwise, taking into account the realities of transboundary dangers and relations between States, and the existing elements of a developing chapter of international law.21

Professor Quentin-Baxter had recourse to some devices to mitigate the effect of the collision between the strict liability to which he had to resign himself “at the very end of the day” and the foreseeable reaction of those opposing the topic. One such device was the notion of “shared expectations.”22 Another was represented by the principles of Section 3, a reasonable preventive conduct of the source State, the relevant factors of Section 6 and the matters of Section 7. Professor Quentin–Baxter’s proposals invoked existing general principles of international law on the support afforded by prevention: he conceived the existence of a wide duty of care, based on the principle of neminem laedere. The duty of care gave origin to several obligations, among them that of minimizing risk and making reparation for the damage done by a lawful but hazardous activity. “The measure of a State’s obligation to ensure that other State’s right are not infringed by the harmful effects of things done or omitted within its territory 21 22

“Third Report…” A/CN.4/360, p. 60, para. 41. Section 4, Art.2 Art.3 went on to say: The reparation due to the affected State under the preceding article shall be ascertained in accordance with the shared expectations of the States concerned and the principles set out in section 3; and account shall be taken of the reasonableness of the conduct of the parties having regard to the record of any exchanges or negotiations between them and the remedial measures taken by the acting State to safeguard the interests of the affected State. Account may also be taken of the relevant factors, including those set up in section 6 and guidance may be obtained by reference to any of the matters set out in section 7.

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or jurisdiction is still the duty of care, but that duty extends to making good any harm that is fairly attributable to the lawful conduct of a lawful activity,” Quentin-Baxter wrote.23 5. The Issues of the Subject All the debates within the liability topic turned on some basic concepts and on the above-mentioned dilemmas regarding prevention and liability. 5.1. Prevention The mandate of the Commission was to examine international liability for the injurious consequences of acts not prohibited by international law. The idea of incorporating articles on prevention into the liability subject was born, perhaps, in the mind of the first Special Rapporteur for the reasons suggested above, but in any case the Sixth Committee and the ILC followed suit, under the motto “prevention is better than cure.” Particularly regarding the environment, it was widely believed that reparation could often prove to be an unsatisfactory form of redress for the damage caused. As already pointed out, prevention inexorably lead to the first taboo—i.e., responsibility for wrongfulness. Besides, a liability system imposing due diligence obligations of prevention and, whether or not they are satisfied, compensation if damage occurs may be contradictory: it would mean establishing obligations of a dual nature—i.e., of due diligence and of result at the same time and on the same subject. Civil liability conventions generally refer only to what may be called prevention ex-post—that is, to measures adopted once an accident has occurred either to prevent the transboundary damage or contain it within certain limits. Some measure of prevention may arise as a simple by-product of sine delicto liability, as this one provides an incentive for the operator to exercise care and thus avoid accidents followed by an automatic obligation of compensation. What’s more, specific preventive measures are no doubt expected for the parties to adopt either internationally or, more currently, in domestic law. In his Fourth Report, the second Special Rapporteur (Barboza) proposed for the first time an article on prevention.24 Successive reports incorporated 23 24

“Second Report of the Special Rapporteur, Mr. Quentin-Baxter” Doc. A/CN.4/346, p. 112. “Source States shall take all reasonable preventive measures to prevent or minimize injury that may result from an activity which presumably involves risk and for which no regime has been established”. Doc. A/CN.4/413, p. 34.

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articles on prevention (ex ante) and finally the Commission provisionally adopted a principle and a number of obligations in 1995. The principle was thus formulated: “States shall take all appropriate measures to prevent or minimize the risk of significant transboundary harm.”25 The other articles on prevention referred to prior authorization (Art.11), risk assessment (Art.12) pre-existing activities (Art.13), measures to prevent or minimize the risk (Art.14), non-transference of risk (Art.14 bis), notification and information (Art.15), exchange of information (Art.16), information to the public (Art.16 bis), consultations on preventive measures (Art. 18), rights of the States likely to be affected (Art.19) and factors involved in an equitable balance of interests (Art.20).26 The articles on prevention finally adopted by the Commission in 2001 generally followed those texts. None of these obligations of prevention was a “hard” obligation in the drafts proposed up to the Sixth Report (Barboza).27 Like in the Schematic Outline,28 no element of responsibility for wrongful acts was, strictly speaking, present in the liability draft, since no compulsory consequences followed the breach of prevention obligations. 5.2. Prevention and Liability on Different Heads The inclusion of “hard” preventive obligations in the second Special Rapporteur’s Tenth Report was facilitated by placing them on the State whereas liability for transboundary damage was imposed on the operator or on some other private party. States of origin were in charge of notification, consultation with likely affected States, as well as the assessment of risk and authorization of the activity. In particular, States of origin had to ensure the taking by operators of specific measures of precaution aimed at preventing transboundary harm. States were obliged to use administrative and judicial means to enforce such obligations, as well as to permanently monitor the authorized activities: in other words, to use due diligence in the enforcement of these prevention measures.

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It was Article C (8 and 9 proposed originally). See Yearbook…1995, Vol. II, Part Two, p. 92. As we shall see, the Commission appointed a working group in 1996, chaired by the second Special Rapporteur, who adopted the former articles and at the end of his mandate the Commission was renewed and a new Special Rapporteur, Mr. Penmaraju Sreenivassa Rao, was appointed in 1997. The renewed Commission left aside these articles in 1997, although the end-result of the new work on prevention was a set of texts quite alike those of 1966. With an alternative offered in the Eighth Report, for the provisions on prevention to have a recommendatory character and be confined in an annex. See Section 2.8 and Section 3.4.

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In the Tenth Report, the same obligations of prevention were maintained, but this time they were shifted into “hard” obligations and their breach entailed, therefore, all the consequences following breach of obligations in the responsibility topic.29 5.3. Scope of the Topic Issues associated with the scope of the topic are varied. In fact, practically every article in the draft had to do with the scope of the subject. Many such issues referred to the concept of “activities”—i.e., What types of activities were to be included: hazardous or ultra-hazardous? All hazardous activities or only those in a list? Activities causing transboundary harm together with those that may cause such harm? Other issues were related. Was the topic to be restricted to damage to the environment? Or only to activities the existence of which is known to the State? And so on and so forth. We shall refer to the principal problems dealt with by the Commission on this score. The first version of the schematic outline described the topic in regard to: “[…] activities within the territory or control of a State which give rise, or may give rise, to loss or injury to persons or things within the territory or control of another State.”30 It was a vast and ill-defined territory, particularly considering that “activity” was referred to as “any human activity” and possibly also included omissions.31 (a) Physical Consequences Some members feared the possibility that consequences of certain activities in one country which have effect in other countries, like for instance the devaluation of a State’s currency, would be brought into the subject. It was soon clarified that only activities having “physical” transboundary consequences would be included. (b) Situations “Activity,” as defined by the schematic outline,32 included any human activity. It was not really a definition; it rather intended to determine the scope of the 29

30 31 32

The Tenth Report of the second Special Rapporteur was never properly considered by the Commission. Section 1.1. Section 1, Art. 2 (b). In Section 1, Art. 2 on definitions.

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topic by way of deciding if “activity… should also include a lack of activity to remove a natural danger which gives rise, or may give rise to loss or injury to another State,” as said in the footnote to the article. Later, that idea materialized in the first article of the five proposed by Professor Quentin-Baxter in his Fifth Report and was baptized a “situation.” The examples given were the approach of an oil slick, danger from floods or drifting ice, or risks arising from an outbreak of fire, pests or disease. From the Fifth Report (Barboza) on, the notion of “situations” meaning “a state of affairs, within the territory or control of the source State, which does or may give rise to physical consequences with transboundary effect”33 was left aside.34 (c) The Environment Notwithstanding some “injudicious reliance upon references to ‘environment’ or ‘physical environment’ ” said to have been detected in connection with the scope of the topic,35 no doubts could remain on that score in the Fourth Report: “[T]here was never an intention to propose a reduction of the scope of 33 34

35

Fifth Report of the first Special Rapporteur (A/CN.4/383) para. 31. The exclusion of “situations” was thus explained: An initial review makes it possible to distinguish at least two different types of situations. First, there are those arising from a human activity, as in the construction of a dam with its resulting artificial lake, or the accumulation of highly toxic materials. Second, there are those situations which arise naturally, in the absence of human activity, as in the case of spontaneous forest fires, pests, floods and the like. The following reflections seem pertinent to the line of thought we are pursuing: a) Situations of the first type would fit with no difficulty whatsoever within our regime, because they arise from activities involving risk. If a dam bursts or if its floodgates have to be opened to save it and that causes transboundary injury, the situation created by the existence of this dam and its artificial lake would obviously be a direct consequence of an activity arising from a particular use of the river in question. It would therefore be sufficient to include in article 1 a few words covering such situations; b) Situations which arise naturally without human intervention would be a different matter. In such a situation, the responsibility incumbent upon the territorial State would derive from an act or omission on its part in respect of the situation. For instance, a State which has the ability to do something to prevent a pest or an epidemic in an area under its jurisdiction from spreading to a neighbouring country does nothing; or an internal measure which is to the advantage of the territorial State becomes a major disadvantage for a neighbouring State. (Third Report… cit., p. 11.) As regards the case of b), presuming—as is the case—that the State has a general duty of preventing transboundary harm, it seems clear that the State has breached its obligations. That places the matter in the field of responsibility for wrongful acts and therefore not within the scope of our articles. There was, therefore, no need to open a new chapter for “situations.” Yearbook… 1983, Vol. II, Part One, p. 206.

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the topic to questions of an ecological nature, or to any other subcategory of activities involving the physical uses of territory.…”36 Protection of the environment was thought to be included as an objective of the draft articles, but risk assessments proposed in the articles were not limited to environmental impact assessments. (d) Activities of Harmful Effects (Activities that Cause Damages)37 Until far along in the consideration of the subject, activities actually causing transboundary harm in the normal course of their development were included in the topic. That was so in all the reports of Professor Quentin-Baxter as well as in the first eight reports of the second Special Rapporteur (Barboza), who thought that the regime could perhaps encompass both types of activities, as they were not easily separable. In the view of the second Special Rapporteur, concerned States were to confront a similar situation whether the activity to be initiated was of one or the other type: in both cases the State of origin had to notify, consult and eventually negotiate with the affected State or States a régime for its legal regulation. This notion found support in the statements of the Expert Group of the World Commission of Environment and Development for which an activity “causing harm that is substantial but far less than the overall technical and socioeconomic cost or loss of benefits involved in preventing or reducing such interference” gave rise to an obligation for the source State to “enter into negotiations with the affected State on the equitable conditions, both technical and financial, under which the activity could be carried out.”38 A common regulation on prevention for both hazardous and noxious activities seemed feasible. The reasons for including them in the draft articles were given in the Fifth Report (Barboza): The difficulty with these kinds of activities is that their polluting effect and thus the injury they cause is normally foreseeable: it is an inevitable consequence of the activity itself. If an industry uses certain ingredients which are known to be pollutants and if certain conditions exist that are also known, transboundary injury may be bound to occur. Since the element of contingency of the injury was lacking, it was difficult to speak of risk. However, the Fourth Report advocated including these kinds of activities in the scope of the topic, for if activities involving risk, or contingent injury are included, then it is all the more logical that

36 37 38

Id., pp. 205/206. See Chapter II for a complete development of this point. Op.cit., p. 85, Art. 12. (Environmental Protection and Sustainable Development, London, Dordrecht, Boston, 1986).

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those which are bound to cause injury should be included. That was the logic underlying their inclusion, assisted by the broad wording of the topic (activities not prohibited…) which lent itself to including them even though they might not strictly ‘involve risk’; it was also thought that general international law did not impose a prohibition which might exclude them from the topic.39

In the first reports, activities of harmful effects (activities that cause transboundary harm in their normal operation) were identified as “polluting activities” and included in the scope of the draft articles. In the Eighth Report (Barboza), Article 4 proposed that: “Before undertaking or authorizing an activity with harmful effects, the State of origin should consult with the affected States with a view to establishing a legal regime for the activity in question that is acceptable to all the parties concerned.” The reason for that proposal was “[…] to the degree to which an activity in the normal course of its operation causes transboundary harm, it must become suspect as a wrongful activity.…” What’s more: “…the State of origin is obliged to require of the applicant for authorization to take the necessary preventive measures, or else such harm is unavoidable and in this case no further steps can be taken without some kind of consultations with the affected States in which the latter can if they wish make counterproposals regarding the conduct of the activity.”40 In Article 5, it was proposed that: If such consultations show that transboundary harm is unavoidable under the conditions proposed for the activity, or that such harm cannot be adequately compensated, the affected State may ask the State of origin to request the party requesting authorization to put forward alternatives which may make the activity acceptable.41

However, the Commission decided not deal at that stage with other activities which in fact cause harm: “Attention should be focused at this stage on drafting articles in respect of activities having a risk of causing transboundary harm and [that] … the articles should deal first with preventive measures in respect of activities creating a risk of causing transboundary harm.…”42 Noxious activities were excluded in the Ninth Report (Barboza). Seen in perspective, that was a wise decision, since conceptually the differences are

39

40 41 42

Fifth Report of the Special Rapporteur…, Doc. A/CN.4/423, pp. 5/6. That position was changed later on. Id., p. 23. Id., p. 24. Yearbook…1992, Vol. II, Part Two, para. 346.

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quite neat between hazardous and noxious activities. Those differences had already been the matter of reflection in some quarters.43 (e) Harm to the Global Commons The issue of harm to places beyond national jurisdiction was only explored in a preliminary way in the Sixth Report (Barboza) and the corresponding plenary debate in the Commission did not clarify what should the Commission do about that issue. The general feeling was that the subject was already too complicated as it was without including such debatable aspects as harm to the global commons. Also, that perhaps the question of harm to the global commons should be postponed or made the object of a different topic. Similar reasons were behind the omission of the issue for ILC consideration, under the guidance of the last Special Rapporteur, Mr. Rao.44

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Following is the statement by Ambassador Helmut Tuerck to the Sixth Committee of the General Assembly on 2 November 1988, provided to Sixth Committee delegations by the Permanent Mission of Austria to the United Nations: It should be borne in mind that the concept of liability for acts not prohibited by international law in reality relates to two fundamentally different situations which require a different approach: one situation relates to hazardous activities which carry with them the risk of disastrous consequences in case of accident, but do not have an adverse impact on other States or on the international community as a whole in their normal operation. It is thus only the accident that needs to be covered by liability—which might be called the premium for the tolerance of such an activity by other States. By its very nature this liability must be absolute and strict, permitting no exceptions. The task of the International Law Commission, however, also relates to a fundamentally different situation, that is, transboundary and long-range impacts on the environment. In this case the risk of accident is only one, and even a minor, aspect of the problem. It is through their normal operation that some industrial and energyproducing activities, but also for instance the driving of cars and the heating of houses, cause prejudice to the environment of other States. Moreover, this harm is not caused by a single, identifiable source as in the case of hazardous activities; there is a multitude of sources which produce harmful effects through accumulation. For a long time these emissions have been generally accepted because every State was producing them and their nefarious consequences were neither well known nor obvious. The growing awareness of their harmful influence has, however, reduced the level of tolerance to a limit that is formed by the highest state of the art in technology, on the one hand, and economic feasibility, on the other. In respect of this situation liability has two distinct functions: as with hazardous activities, it should on the one hand cover the risk of an accident, such as a fortuitous emission exceeding the generally accepted limits; on the other hand, it must also cover—and that is its essential function— significant harm caused in the territory of other States through a normal operation. Liability for risk must thus be combined with liability for a harmful activity. See the Sixth Report of the second Special Rapporteur, Doc. A/CN.4/428/Add.1. Also, Chapter XIII of Barboza’s Hague course (“International Liability for the Injurious

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(f) The List of Activities A recurring issue in both the Commission and the Sixth Committee was the inclusion in the draft articles of a list of activities falling within the pale of the articles. The purpose of that list was to more precisely delimit the topic, thereby facilitating its acceptance by States. The concern of the Commission and of the Sixth Committee for that list reflected the repeatedly mentioned reluctance of engaging in somewhat imprecise commitments regarding liability. Some members thought that the list could help to overcome the objections against a convention envisaging all sorts of hazardous activities. The main objection to the list was that it would soon become obsolete, in view of the acceleration of technological developments and the foreseeable appearance of new dangerous activities. There were many industrial activities which could be considered hazardous according to the criteria proposed to make the list, but it would be very difficult and perhaps rather pointless, to enumerate each of them because the risks they created were contingent on many circumstances. An industrial plant producing emissions, such as the Trail Smelter, would have been included in our list if its emissions crossed some political boundary but not if it was located at a safe distance of the frontier. It became clear that practically no specific activity could safely be incorporated in the list without qualifications such as those. Moreover, if several activities were to be put together under a common denominator, the accusation of generalizing would have remained. The purpose of the list was to bring the articles into line, as far as possible, with the practice established of drafting conventions regulating specific activities. Clearly, States were more prepared to accepting commitments in regard of activities the individual features of which were well-known, as was the case in civil liability conventions. Each one of them regulates a specific activity, the risks inherent to which as well as the obligations of the parties regarding prevention and liability are more or less precisely known. It is also important to consult the opinion of the insurance industry and consider contingency plans which may be required in relation with the risks inherent to the particular activity regulated by the convention. In such circumstances, the second Special Rapporteur felt that—rather than attempting the impossible, and perhaps undesirable, task of imitating the method applied to regulate specific activities—a definition as complete as possible of the type of activities proposed would be better than a list.

Consequences of Acts not Prohibited by International Law and Protection of the Environment”, Collected Courses of the Hague Academy of International Law, 1994, III, p. 392 et seq.)

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The Commission shared that conviction and the list never found its way into the articles. 6. Attribution (of Acts or of Consequences?) to the State Until the task of the second Special Rapporteur was well advanced, the draft articles envisaged the State as the party liable in principle for significant transboundary harm caused by hazardous activities. The conditions underlying that responsibility were stated in the following paragraph by the first Special Rapporteur, Professor Quentin-Baxter: “[…] whenever a State within whose territory or control substantial transboundary harm is generated has knowledge of the harm, or means of knowledge, and opportunity to act, the rule enunciated by the International Court of Justice in the Corfu Channel case establishes that the test of attribution has been satisfied.”45 In the field of responsibility, the acts of certain individuals (the organs of the State, for instance) under certain conditions, are imputed to the State whereas in the field of liability the conduct of the human or legal person leading the activity is not. In the logic of liability, reflected in the liability and compensation conventions, there is no point in attributing a certain conduct to a certain State; whatever liability corresponds to a State is due to the fact that the hazardous activity causing the transboundary harm was performed in its territory or otherwise under its jurisdiction or control.46 It is rather the consequences of such acts the State is sometimes liable for by operation of that logic. In article 4 of the draft proposed in the Third Report (Barboza), certain conditions were previous to the attribution of sine delicto liability: the State of origin must have known or had the means to know both that the activity was carried out within areas under its jurisdiction or control and that the activity created an appreciable risk of causing transboundary harm.47 This clause was included with a view to protecting developing countries, particularly those having vast extensions of territory—especially maritime zones—if they did not know and had no means of knowing what went on in such spaces. The Special Rapporteur (Barboza) thought that knowledge as to the existence and nature of the activity was a condition necessary for liability to be established,48 and that both the means to know and the specific 45 46 47 48

Yearbook …1981, Vol. II, Part Two, Doc. A/36/10, p. 147. “Control” here means control of the territory, in lieu of legal jurisdiction. Doc. A/CN.4/405, of 16 March 1987, p. 7. That knowledge, in fact, seems to be a condition necessary for giving rise to any form of accountability.

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knowledge could be presumed—the onus being, then, on the State of origin to prove its ignorance of the facts. “Knowingly,” as in the statement of the Corfu Channel decision, was the clue to liability—or, if preferred, the very floor on which liability found support. “All this would be consistent with the principle embodied in the Judgement in the Corfu Channel case and also—with respect to harmful smoke emissions—in the Trail Smelter case.…”49 The second Special Rapporteur was convinced that even sine delicto liability— notwithstanding its objective character—required a minimum of participation of the will of the liable party, which would not exist without its knowledge about the existence of the hazardous or noxious activity. International practice, however, seems to have pragmatically moved towards an “allocation of loss” having, at times, little to do with the authorship of the damage, and so have the articles of the Commission. The requirement was abandoned in later reports. The absence of the “no-act-of-the-State” exception is considered, in some quarters, an insurmountable obstacle for the establishment of State liability in international law.50 6.1. Attribution and Appreciable Risk The requisite that risk should be “appreciable” focuses, of course, on the level of risk required to trigger the mechanisms of liability; but it was also originally related to the idea of knowledge dealt with above. Among other motives, the utilization of this notion was, again, to protect developing States that lacked the technology required to know that a certain activity indeed created a risk, or the nature or magnitude of that risk. This was the first time that the term “appreciable risk” was introduced in the draft.51 It was then identified 49 50

51

Doc. A/CN.4/405, pp. 20/21. Cf. Lefeber, op.cit., pp. 56/60. However, that exception does not exist in other forms of indirect liability or responsibility or in the loss allocation set forth in instruments like the Oil Fund Convention. The responsibility of masters for certain acts of their servants, or of fathers for certain acts of their children, is well known and does not surprise anybody. Is not the accountability of States in international law always indirect? After all, States are made accountable for the acts of people who are not the State, only its organs. In fact, it is the national community, personified in the State, which is made accountable for the acts of some of its members. The community is responsible for having selected its organs and in our field it is liable because such organs permitted a hazardous activity to be carried on in its territory. “The adjective ‘appreciable’ indicates that the risk involved must be of some magnitude and that it must be either clearly visible or easy to deduce from the properties of the things or materials used. This is the corollary to the requirement that the injury must be appreciable in

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as a risk “objectively” appreciable to anyone who looked carefully at the activity concerned. “Appreciable,” however, has two different meanings. One is that of “perceptible”—something perceivable at first sight or after summary investigation. The other is that of “significant”—i.e., of a certain magnitude. This dual meaning of the word seemed to the second Special Rapporteur ideal for the protection of developing countries, but later on the Commission, by choosing “significant”, subtracted from the notion of threshold the meaning of “perceptible” as something that may be perceived. This was the first attempt to establish a threshold; the final one referred to a combination of risk and harm. 7. The Balance of Interests Test The issue of the balance of interests is important. As we have seen, whenever transboundary harm is caused by a hazardous activity, there is a disruption of that balance between the States concerned. But even if the State of origin fulfils its duty of care and even if no harm is actually caused by the activity, the balance of interests is altered. The basic legal principle sic utere tuo ut alienum non laedas seems to apply at the very moment when risks are created benefiting States of origin and threatening harm to risk-bearer States. Territorial sovereignty protects the freedom of action of the State of origin and, at the same time, the right of the risk-bearer State not be affected by actions from abroad. The collision between the two contradictory aspects of sovereignty would be inevitable and the prevalence of one upon the other would breach the principle of sovereign equality: ergo the need to make them compatible and the application of neminem laedere. Following the logic of that principle, damage resulting from culpa lato sensu is sanctioned by wrongfulness and risk is conditioned to the exercise of prevention and compensation if damage occurs. The contingent character of the damage consequent to an inherent risk of the activity prevents its being prohibited, but only if its usefulness is considerably higher than the harm it threats with and a legal regime of prevention/compensation sits on the other plate of the scale. Thus, the balance of interests is restored.

order to be covered by these articles. It would be useful to include the adjective, bearing in mind that the description in article 1 (‘which do or may give rise to a…consequence…’) is too broad and covers any type of risk. Introducing a nuance by using ‘appreciable’ does not, in our view, mean introducing a new, unquantifiable dimension, but simply gives expression to what was implicit in the logic of the text.” Doc. A/CN.4/405, p. 21.

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That restoration requires a procedural step from the State of origin: it must negotiate, in good faith, an agreement for a regime of prevention and, eventually, compensation for damages.52 In fact, one of the purposes of the draft articles was to encourage States to enter into such agreements and guide them in their drafting. If no agreement is reached, then the State of origin had the obligation of exercising its utmost care to prevent and minimize the risk by monitoring and regulating the activity in question and, in case of transboundary harm, by compensating the affected State. That compensation does not need to reach the level of in integrum restitutio of the Chorzow factory rule, but rather be sufficient to re-establish the balance of interests, taking into account a number of factors such as the distribution of costs and benefits of the States concerned with regard to the activity. 8. The Risk Needless to say, “risk” is one of the key concepts in this topic, where “risk” and “harm” cannot be understood if not tied to each other: risk being potential harm, and harm the consequence of risk. Damage caused by a non-hazardous activity53 does not fall within the purview of the ILC’s articles, due to the definition of Art. 1.54 Dispensing with risk and considering only damage means ignoring an essential aspect of our topic: it is by no accident that one of the names for “liability” is precisely “liability for risk.” In the context of sine delicto liability, harm is not compensable merely because it has occurred, but because it corresponds to a general prediction that it could occur, since the activity was hazardous. As a consequence, transboundary damage resulting from other causes is not relevant to our subject. In the schematic outline, no attempt was made to define risk. The matter found some place in the Fourth Report (Barboza) where risk was related to the use of certain substances.55 In the Sixth Report of the same Special 52

53

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55

The State of origin is, in international law, under an obligation to negotiate. The content of that obligation is to sit to the negotiating table in good faith with a view to establishing a legal regime on the activity in question. That is, one that does not create a risk of significant transboundary harm, according to the definition of the 2001 articles. Liability sine delicto has a somewhat wider scope than risk liability. It may arguably envisage cases like where an act has been excluded of its wrongfulness, as well as expropriation. Article 2 (a): “ …the risk occasioned by the use of substances whose physical properties, considered either intrinsically or in relation to the place, environment or way in which they are used, make them highly likely to cause transboundary injury throughout the process”.

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Rapporteur, activities involving risk were identified in relation with their use of dangerous substances, technologies or genetically altered organisms and micro-organisms. Having identified the activities dealt with in the draft, there was no need for a general definition of risk. However, the concept of “appreciable” risk, or “significant” risk—as it could be called depending on what the Commission decided—was an issue and the Sixth Report56 included the relevant definition in article 2 (e), as: “ ‘[Appreciable][significant] risk’ means risk which presents either the low probability of causing very considerable [disastrous] harm or the higher than normal probability of causing minor, though [appreciable] [significant] transboundary harm.”57 The Commission decided later on against introducing the notion of dangerous substances or any other attempt at a detailed identification of hazardous activities that would fall within the scope of the articles. The Commission finally chose a general formula to cover prevention measures.58 There were few examples to follow regarding risk, as conventions on specific activities do not need to deal with the concept of risk in order to define their scope: the activities covered are presumed to have the level of risk necessary to require a legal regime. The only general convention on dangerous activities was—and still is—the Lugano Convention on Activities Dangerous to the Environment, at that time only a draft produced by the Council of Europe. A definition of “risk” existed in relation to the accidental pollution of transboundary inland waters.59 The Convention on the Transboundary Impacts of Industrial Accidents,60 in article 1 (d), also defined the concept of “risk.”61 The Convention on Civil Liability for Damage Caused during Carriage of

56

57 58

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Fixing the threshold by a combination of risk and the extent of the harm expected was, then, done as early as in the Sixth Report (Barboza). The words in between brackets were offered as alternatives, following UN practice. As we shall see, the Commission decided in 1997 to separate prevention from liability and re-start the work on prevention. The Code of Conduct on this subject, in article 1, defines three closely related concepts: in subparagraph (f) “risk” meant the combined effect of the probability of occurrence of an undesirable effect and its magnitude; in (g) “hazardous activity” meant an activity which by its nature involved a significant risk of accidental pollution of transboundary inland waters; and in (h) “hazardous substance” meant any substance or energy involving a significant risk of accidental pollution of transboundary inland waters, including toxic, persistent and bioaccumulative substances and harmful micro-organisms. ENVWA/WG.1/R.1. “Risk” here was defined as the combined effect of the probability of occurrence of an accident and the extent of its impact.

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Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD) did not define “risk,” only “dangerous goods” (in art. 1, paragraph 9), and did so simply by reference to certain lists contained in European agreements. The draft Framework Agreement on Environmental Impact Assessment in a Transboundary Context established the need for impact assessment in respect of certain activities, but also did so by means of lists.62 To sum up, in the models at the disposal of the Commission, there were various elements and conditions associated with risk: (a) the activities themselves, in terms of the magnitude of their inherent risk and foreseeable transboundary effects; (b) the location of the activity in relation to the international frontier or to sensitive areas in neighboring States that might be particularly affected; and (c) the objects the activity dealt with. “Objects” were taken to mean such things as technologies, substances, and dangerously genetically modified organisms or dangerous micro-organisms. The Fourth Report of the second Special Rapporteur identified only activities involving dangerous substances, but some of the concepts used also applied to the activities themselves and not to the substances involved.63 The Special Rapporteur considered that an identification of hazardous activities could begin using criteria such as those of the CRTD: magnitude, location and effects. With the intention of improving on the definition of his Eight Report, he suggested the following draft definition: “ ‘Risk’ means the combined effect of the probability of occurrence of an accident and the magnitude of the harm threatened. ‘Activities

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Article 2, paragraph 5, defined planned activity which should be assessed in terms of its transboundary impact, stating that “planned activity” meant “any activity or any major change to an activity, particularly those listed in Appendix I hereto, and subject to a decision in accordance with an applicable national procedure” Appendix I cites as planned activities likely to have a transboundary impact such works as major agricultural projects, major crude-oil refineries and installations for the gasification or liquefaction of coal, thermal power stations and other combustion installations, nuclear power stations and other nuclear reactors, etc. See ENVWA/AC.3/6, annex. Dangerous substances are dangerous intrinsically, but also in relation to the place, the environment or the way in which they are used or in relation to a combination of the former factors. Intrinsically (explosives, radioactive, toxic or inflammable materials, etc); in relation to the place (those conducted close to the international border or threatening a region ecologically sensitive, or where the winds extend their effect beyond the State of origin’s borders, etc.); in relation to the environment in which they were used, when the substances in question have a particular effect on certain media; in relation to the way of their utilization (substances used in space activity or aviation, or wherever adequate arrangements are not made for their storage, or substances accumulated in large quantities, such as oil, which may be harmless in small quantities and becomes dangerous when 200,000 tons of it are transported by ship or water in a dam retaining in its impoundment a quantity sufficient to cause damage of various kinds), etc.

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involving risk,’ for purposes of the present articles, are activities where the result of the above combination is significant.”64 Neither this general definition, nor perhaps any other way of approaching the issue—including the provision of examples in annexes—afforded guarantees that all activities involving risk would, a priori, be satisfactorily identified in the draft articles. However, the Special Rapporteur thought that something along the lines of the above text could provide guidance to Governments regarding how the articles would operate. The final formula adopted by the Commission did not differ too much from that just transcribed above.65 9. Harm (damage) Art. 2.4 of Professor Quentin Baxter’s last report66 approached “injury” by defining “transboundary effects” as a physical consequence of the activity or situation within the territory or under the control of a State affecting the use or enjoyment of areas within the territory or control of any other State. The Third Report (Barboza) pointed out a difference between the concept of damage in the fields of State responsibility and of liability. In the former, the law attempts to erase all the consequences of the wrongful act (Chorzow factory rule). In the latter, a more complex situation arose, and it was necessary: “[…] to bear in mind that the adverse effect which is the source of the injury occurs as a result of an activity which is lawful and which has been approved, notwithstanding the danger it involves, because a comparison of the various interests and factors at stake has shown that it is preferable to face the consequences which might arise than to prohibit the activity outright.”67 Damage was defined in the Third Report (Barboza, articles 2.5 and 2.6) as a “physical consequence” of an activity within the territory or control of a source

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The text went on to say that “This situation may arise when the effects of the activity are threatening, as when dangerous technologies, substances, genetically modified organisms or micro-organisms are used, or when major works are undertaken, or when their effects are accentuated by the location of the sites at which they are carried out, or by the conditions, ways or media in which they are conducted.” Doc. A/CN.4/443, p. 31. “Article 2. Use of terms. For the purposes of the present articles: (a) “Risk of causing significant transboundary harm” includes risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm.” The text proposed in the Fourth Report was more flexible than the final formula, which demands “a high probability”—i.e., implying a high risk, whereas the text in the Report is contented with a “significant risk.” Yearbook…1984, Vol. II, Part One, p. 156. Third Report…Doc. A/CN.4/405, p. 17.

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State, affecting persons or objects and the use and enjoyment of areas within the territory or control of an affected State.68 It should be noted that, although physical causality was the vehicle of harm, harm itself was to be reflected in social terms: a loss of certain advantages, replacement costs, a variety of inconveniences, deterioration of the health of certain persons, harm to the environment and other ill effects, which generally would have to be assessed and compensated in economic terms. It is explained later in the same document that, in reality, damage was conceived of as a disruption of the balance of factors and interests at stake.69 Because the factors involved were complex, and sometimes not easy to quantify, the need for negotiations arose. The obligation to negotiate was later considered to be the only really compulsory consequence of the production of transboundary harm.70 The obligation to negotiate was necessary if no compulsory method of deciding controversies was to be introduced in the draft articles.71 Besides the procedural obligation to negotiate in good faith, the solution proposed in the third and consecutive reports was to measure damage according to the extent of the disruption to the balance of interests. The definition of “transboundary harm” in the articles proposed in the Fourth Report (Barboza) had some slight changes, but it was essentially equivalent to that of the Third Report72 and the Fifth Report repeats the same text with the important

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Id., p. 7. “The magnitude of the injury will be directly proportionate to the resulting imbalance: the extent of the imbalance will determine the extent of the injury.” Id., p. 17. Today, the present writer would not present the matter in such absolute terms, he would be more inclined to consider the re-establishment of the balance of interests as one of the factors in the calculation of the reparation due. But the baseline on which reparation should start being calculated is the Chorzow Factory rule and that is confirmed by international practice. Orientating that negotiation was always the principle that the innocent victim should not be left to bear his loss. In the view of the Second Special Rapporteur, the obligation to negotiate in international law was a consequence of its decentralized nature. Indeed, a similar obligation is not to be found in domestic law systems because, due to the compulsory character of the courts’ jurisdiction, anybody considering himself aggrieved may seize a competent law court of his claim and the defendant will be obliged to appear and defend his position or take the consequences. “Transboundary injury” means the effect which arises as a physical consequence of the activities referred to in article 1 and which, in spheres where another State exercises jurisdiction under international law, is appreciably detrimental to persons or objects, or to the use or enjoyment of areas…”(Art.2.c). The expression “spheres where another State exercises jurisdiction under international law” had in mind places like ships flying that State’s flag.

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addition of a primary notion of environmental harm.73 Also, the last paragraph is a new one: “Under the regime of these articles, transboundary injury always refers to ‘appreciable injury’.” Which lead us to the notion of a “threshold” of harm, as will be seen later. In the Sixth Report (Barboza), there were more precisions added74 but no definition of “environmental harm.”75 An approach to a definition of “environmental harm” was tried in the Eleventh Report by describing “environment”76: “The environment includes ecosystems and natural, biotic and abiotic resources, such as water, soil, fauna and flora and the interactions among these factors.” 9.1. The Items of Compensable Damage Compensable damage—i.e., items of damage covered by compensation—must also be considered. The Guidelines prepared by the United Nations Economic Commission for Europe (ECE) Task Force on Responsibility and Liability

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Specifically, the Fifth Report introduced “or the environment” after “the use or enjoyment of areas.” For example, if the activity was being carried out in both States, or if the State of origin could demonstrate that the affected State was benefiting without charge from the activity that caused the harm. Art. 24 read: “If the transboundary harm proves detrimental to the environment of the affected State: The State of origin shall bear the costs of any reasonable operation to restore, as far as possible, the conditions that existed prior to the occurrence of the harm. If it is impossible to restore these conditions in full, agreement may be reached on compensation, monetary or otherwise, by the State of origin for the deterioration suffered. If, as a consequence of the harm to the environment referred to in the preceding subparagraph, there is also harm to persons or property in the affected State, payments by the State of origin shall also include compensation for such harm.…” Some texts were suggested, without giving them article numbers: “Harm means (a) loss of life, personal injury or impairment of the health or physical integrity of persons; (b) damage to property or loss of profit; (c) harm to the environment, including (i) the cost of reasonable measures taken or to be taken to restore or replace destroyed or damaged natural resources or, where reasonable to introduce the equivalent of these resources into the environment; (ii) the cost of preventive measures and of any further damage caused by such measures; (iii) the compensation that may be granted by a Court in accordance with the principles of equity and justice if the measures indicated in subparagraph (i) were impossible, unreasonable or insufficient to achieve a situation acceptably close to the status quo ante. Such compensation should be used to improve the environment of the affected region.” The right of action for reparation of environmental damage was assigned to the affected State or the bodies which it designated under its domestic law.

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regarding Transboundary Water Pollution77 attempted a definition of “damage” as a basic indication for the amount of reparation or compensation due.78 The Lugano Convention deals with compensable damage in a similar way, with small variations, in article 2, paragraph 7.79 The CRTD (damage caused during carriage of dangerous goods)80 follows similar lines. The Antarctic Convention81 uses somewhat different terms, but does not get far from the definitions previously commented upon. 77

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Alfred Rest, New Tendencies in Environmental Responsibility/Liability Law: The Work of the UN/ECE Task Force on Responsibility and Liability regarding Transboundary Water Pollution 21 (3–4); 135 (1991), p. 137. The English text reads as follows: “Damage means: (a) any loss of life, impairment of health or any personal injury; (b) any loss or damage to property or loss of profit; (c) detrimental changes in ecosystems including: (i) the equivalent costs of reasonable measures of reinstatement actually undertaken or to be undertaken and (ii) further damage, exceeding those referred to under (i) as provided for in paragraph E 5; (d) the cost of preventive measures and further loss caused by preventive measures, which arise from transboundary water pollution.” Paragraph E5 reads: “States should endeavor to develop and agree upon methods for compensation for impairment of the environment, such as measures for replacement of habitats of particular conservation concern”. The definition of measures of reinstatement relates to “any reasonable measures aiming to reinstate or restore damaged or destroyed natural resources, or where reasonable, to introduce the equivalent of these resources into the environment.” The text is as follows: “(a) Loss of life or personal injury; (b) loss of damage to property other than to the installation itself or property held under the control of the operator, at the site of the dangerous activity; (c) loss or damage by impairment of the environment insofar as this is not considered to be damage within the meaning of sub-paragraphs (a) or (b) above, provided that compensation for impairment of the environment other than by loss of profit from such impairment, shall be limited to the costs of measures of reinstatement actually undertaken or to be undertaken; (d) the costs of preventive measures and further loss or damage caused by preventive measures.” “Measures of reinstatement” (paragraph 9) are defined as “any reasonable measures aiming to reinstate or restore damaged or destroyed components of the environment or to introduce, when reasonable, the equivalent of those components into the environment’. Article 1, paragraph 10, considers compensable the: “(c) loss or damage by contamination to the environment caused by the dangerous goods, provided that compensation for impairment of the environment other than for loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; d) the costs of preventive measures and further loss or damage caused by preventive measures.” Subparagraphs (a) and (b) are to be found in any definition of harm. It provides that an operator shall be strictly liable for “damage to the Antarctic environment or dependent or associated ecosystems arising from its Antarctic mineral resources activities, including payment in the event that there has been no restoration to the status quo ante (art. 8, para. 2 (a), and for “(d) reimbursement of reasonable costs by whomsoever incurred relating to necessary response action, including prevention, containment, clean-up and removal measures, and action taken to restore the status quo ante”.

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Regarding harm to the environment, the Sixth Report (Barboza) introduced Article 24. The harm to the environment comprised: “[T]he costs of any reasonable operation to restore, as far as possible, the conditions that existed prior to the occurrence of the harm.” The text added that: “[I]f it is impossible to restore these conditions in full, agreement may be reached on compensation, monetary or otherwise, by the State of origin for the deterioration suffered.” The Special Rapporteur considered it desirable to combine in a single article, but under separate subparagraphs, the concepts of harm to persons, objects or the environment. Likewise, the definition should include not only the concept of harm, but that of transboundary harm, given that the topic related to international liability, to which this type of harm gives rise.82 Conventions or drafts on liability take only ex-post preventive measures into account, generally as costs to be added to other compensation payable by the liable party. Frequently, as we have seen, these preventive measures may be taken by the affected State, or by individuals within the affected State, to prevent the harm caused by the accident from spreading and developing to its full potential. The definition of environmental damage in the definitive version of the 2006 articles was changed to update its concepts, as will be seen. 9.2. The Threshold of Damage The notion of a threshold of damage was retaken and developed systematically in the Fourth Report (Barboza). The notion of a threshold under which damage is not legally relevant goes against the principle that all damage is to be compensated—as expressed in 82

The following text seemed appropriate to the Special Rapporteur: “Damage’ means: any loss of life, impairment of health or any personal injury; damage to property; detrimental alteration of the environment, provided that the corresponding compensation would comprise, in addition to loss of profit, the cost of reasonable reinstatement or restorative measures actually taken or to be taken; the cost of preventive measures and additional harm caused by such measures. “Restorative measures” could be defined as: reasonable measures to reinstate or restore damaged or destroyed components of the environment, or to reintroduce, when reasonable, the equivalent of those components into the environment. “Preventive measures” could be defined as: reasonable measures taken by any person following the occurrence of an incident to prevent or minimize the damage referred to in paragraph …of this article. “Preventive measures” in the draft were those designed to prevent or avoid the occurrence of an incident (ex–ante) (and with it the production of the consequent harm), as well as those intended to contain or minimize the harmful effects of an incident that has already occurred (ex–post).

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the famous Chorzow rule—and also against the ‘polluter pays’ principle. In the Chorzow case, the court was dealing with the breach of an international obligation, whereas here “damage” triggers a primary obligation of compensation. The Chorzow rule is a customary rule declared to be so by the Permanent Court of International Justice, whereas our threshold rule is just a current practice in civil liability conventions. It seems to be generally accepted that damage, below the threshold of “appreciable” or “significant,” should be tolerated for a number of reasons that were already stated in previous pages.83 With regard to the description of harm as “appreciable” or “significant,” the Special Rapporteur thought that the general view rather favored “significant” because it had a level equivalent to “appreciable” but lacked the duality of meanings of that term. As concerns the definition of “the threshold of harm,” the attempt made in the Sixth Report (paragraph h) had not met with approval.84 The Special Rapporteur recalled that the Guidelines prepared by the Task Force85 had put forward a definition which could perhaps be acceptable to the Commission. It read: The threshold of damage… is that accepted by the States universally or by the concerned States. If no such level is agreed, damage occurs where an affected State is required, as the result of the activity on the territory of the State of origin, to take measures in the interest of the protection of the environment or population or rehabilitation measures.86

This definition of a threshold was more objective than “harm that is not insignificant, or trivial, or a mere nuisance”—which had been used to describe the indefinable. If a State takes measures incurring costs, there are grounds for

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The matter was, as said above (Chapter II, d), discussed in the topic of watercourses—in particular, in Mr. Schwebel’s Third Report. Art. 2, (h) read: “ ‘[Appreciable] [significant] harm’ means harm which is greater than the mere nuisance or insignificant harm which is normally tolerated.” “Nuisance” is meant in the common, not in the Anglo–American, legal sense of the term. See note 32. Id., p. 138. True, the subjective element was not totally eliminated, since the State taking the protective measures could have a sensitivity for environmental or public health issues more acute than the State of origin, in which case the State of origin could perceive it as unjust to have to pay for measures which it deemed excessive. This seemed to have occurred, for example, in the case of some actions taken by Governments in Western Europe following the Chernobyl incident, which were viewed as exaggerated by experts in other countries (destruction of vegetables supposedly exposed to radiation, slaughtering of livestock, etc.).

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thinking that it is not doing so simply for the pleasure of throwing its money away. It could be improved by adding a reference to levels that are regionally acceptable, etc. But this definition did not make any headway in the ILC. Where to fix the level of that threshold? In the International Law Commission, the issue was dealt with in the topics of “international watercourses” and “liability.” In both drafts, the word “appreciable” was used at the beginning to qualify the damage, but later on “significant” commanded greater support, as we discussed above. The Third Report of Professor Stephen Schwebel—as he then was—on the draft for the Convention on the non-navigational uses of international watercourses addresses this issue.87 After drawing attention to a considerable number of agreements, both on watercourses and on the environment, Professor Schwebel notes that “substantial”, “significant,” “sensible” (in French and Spanish,) and “appreciable”(especially in French) are the adjectives most frequently employed to qualify “harm”:88 Simply put, ‘appreciable’ stands for more in quantity than is denoted by ‘perceptible’ which could be construed to mean only barely detectable. ‘Appreciable’ means less in quantity than terms such as ‘serious’ or ‘substantial’. With any such qualifying terms out of ordinary language there is always the difficulty of determining, as in this case, just what quantity of harm satisfies ‘appreciable’.89

The “Convention on the law of the non-navigational uses of international watercourses” finally adopted the term “significant harm.” The understanding of such term is that the adverse effect, “[…] must be capable of being established by objective evidence and not be trivial in nature, although it need not rise to the level of being substantial.”90 Another observation by Professor Schwebel was also relevant: In any event, measuring the quantity of such a qualifying term is not a new task for the law. Such descriptive terms denoting a certain standard are frequently unavoidable, and not only in customary law. The problem presented itself long ago with such verbal standards as ‘reasonable care’, ‘probable cause’, ‘reasonable time’, ‘reasonable use’, rebus sic stantibus, ‘substantial capacity’, ‘substantial compliance’ (or ‘performance’), ‘minimum standard of justice’, force majeure, ‘excessive force’, and even de minimus itself (para. 140).91 87 88 89 90

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Yearbook … 1982, Vol. II, Part One, pp. 79 et seq. Id., para. 130. Id., para. 138. UN: Doc. A/51/869. Convention on the law of the non-navigational uses of international watercourses: Report of the Sixth Committee Convening as the Working Group of the Whole, p. 4. Ibid.

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Professor Schwebel concludes that: In its use of ‘appreciable’, the Commission desires to convey as clearly as possible that the effect of harm must have at least an impact of some consequence, for example on public health, industry, agriculture or environment in the affected State’s system, but not necessarily a momentous or grave effect, in order to constitute transgression of an interest protected by international law.92

10. Liability In international practice, there are several ways to remedy the transboundary harm caused by a hazardous activity to persons, property or the environment. One is the absolute liability of the State.93 Another way is to channel liability through the operator, leaving the State out of the picture.94 Still another is to assign to the State some subsidiary liability for that amount of compensation not satisfied by the operator or his insurance.95 In other contexts, the State may be responsible only in cases where due diligence is breached, in a way similar to that of article 7 of the draft articles on the Law of the Nonnavigational Uses of International Watercourses—although such a rule may impose an obligation within the framework of State responsibility (and therefore fall outside the scope of the articles).96 Primary State liability for compensation was strenuously resisted in the Commission and in the Sixth Committee and was finally erased from the Commission’s 2006 articles as an obligation. However States “should,” according to these articles, take all necessary measures to ensure prompt and adequate compensation for victims (Art. 4, Para. 1). States should also impose no-fault liability on the operator or, where appropriate, other person or entity (Para. 2). And, eventually, States should ensure additional funds, including industry or other funds (Paras. 3 and 4).

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Yearbook…, 1982, Vol. II, Part One, para. 141. As in the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972, so far the only case of State absolute primary liability to be specified by a multilateral treaty. As in the recent Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters of 23 May, 2003. Such as in the Convention for the Third Party Liability in the Field of Nuclear Energy of 29 July 1960 and the Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963. See Doc. A/CN.4/L, pp. 58/59.

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10.1. Why Civil Liability? Risk in hazardous activities is best managed by strict (sine delicto) liability, as is established in the generality of domestic law systems for reasons already mentioned in previous chapters. In international law, the same arguments militated in favor of civil liability regimes for well-known conventions. Paragraph 4 of the draft directive of the Commission of the European Communities on civil liability for damage caused by wastes alleges reasons in favor of strict liability which are valid today.97 Both the schematic outline and Professor Quentin-Baxter’s five reports placed the burden of liability mainly on the State. However, international practice was already going a different way, that of civil liability of private parties, as we have seen. In this respect, the second Special Rapporteur (Barboza) followed the line of the Schematic Outline in his first five reports, but introduced in his sixth and successive reports the possibility of the so-called domestic channel and, with it, civil liability, so both the State-to-State negotiations and the domestic channel were open to victims. Reparation in the Sixth Report was dealt with in Article 9: “To the extent compatible with the present articles, the State of origin shall make reparation for appreciable harm caused by an activity referred to in article 1.” The Special Rapporteur suggested an alternative text98 which, in his opinion, would improve on the above quoted: “To the extent compatible with the 97

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“No-fault or strict (sine delicto) liability. As this principle implies automatic liability, it will ensure that victims receive compensation, the environment will recover and economic agents are held liable in keeping with the objectives of the Directive. The concept of no-fault or strict liability for environmental risks is everywhere gaining ground. In the related (and comparable) field of defective products, Council Directive 85/374/EEC of 25 July 1985 adopts this principle, and it can also be found in a growing number of international conventions—e.g., on nuclear energy and oil pollution of the seas. The draft convention prepared by Unidroit on compensation for damages caused by the carriage of dangerous goods by rail, road or inland waters currently being negotiated within the United Nations Economic Commission for Europe, is also based on the same principle. In the same spirit, the final communiqué of the 8th Conference of Ministers on the Protection of the Rhine against Pollution in Strasbourg on 1 October 1987, which was also attended by the Commission, calls for harmonization of legislation on civil liability for damage caused by the dangerous substances on the basis of the principle of strict liability. The same trend is becoming increasingly established in national legislation. Germany and Belgium have already introduced the principle of no-fault liability. In France, it is well established by case law. Case law in the Netherlands is moving in the same direction and a law is being drafted to introduce the principle in the new Civil Code. In Spain, strict liability has been introduced in the waste management sector”. Offering alternative texts representing afterthoughts of the Special Rapporteur were due to the strong division of the Commission and the Special Rapporteur’s desire of offering the Commission the widest possible selection of drafts.

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present articles, the State of origin shall ensure that [compensation] [reparation] is made for harm caused by an activity referred to in article 1.” In the former text, reparation or compensation was going to be a matter for negotiation between the States concerned, guided by the criteria set forth in the articles and with a view to restoring the balance of interests; whereas, if the individual victims chose the courts of the State of origin, the compensation due would be fixed according to the national law of the court.99 There were some changes with respect to liability in the successive reports. In the Sixth Report, civil liability together with an alternative channel of diplomatic protection of their State for victims of transboundary damage was proposed. However, in the Tenth Report, no State liability was set forth and a sharp distinction was made between State fault, responsibility for failure to fulfill its prevention obligations, and sine delicto liability for damages due to risks inherent to the activity, where the private party was liable in all cases— although part of the loss could be allocated to a fund or a consortium of liable parties. The advantage of this system, thought the Special Rapporteur, would be to simplify the relationship between State liability and the liability of private parties and make the draft more acceptable to States. On the other hand, the operators or the fund could sue the State in its law courts had the incident occurred on account of the fault or an omission by the State. 11. The Principles At the start of the consideration of a topic, the Commission needs to establish a set of principles to guide its work and facilitate the understanding of and give legal basis to the norms to be proposed to the General Assembly. Some principles may be recognized in Section 5 of Professor Quentin-Baxter’s schematic outline, articles 1, 2 and 3. Article 1 contained what we called “the basic principle”; its source obviously being Principle 21 of Stockholm.100 Article 2 could be interpreted as enunciating the principles of prevention

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Access to the competent courts of the State of origin was assured in the Sixth Report by the article on no discrimination as normally established by civil liability conventions. The diplomatic way was maintained if the affected State chose to invoke the responsibility of the State of origin on the international plane. Article 1 read: “The aim and purpose of the present articles is to ensure to acting States as much freedom of choice, in relation to activities within their territory or control, as is compatible with adequate protection of the interests of the affected States” It was suppressed by the Commission after 1996.

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and reparation.101 Article 3 completed the concepts of reparation and of prevention.102 These principles were summarized, in a very general language, in the Second Report (Barboza)103 and proposed in Chapter II, articles 6 to 10. Article 6 followed the lines of Section 5, article 1 of the schematic outline. Although it founds its inspiration in Principle 21 of Stockholm, article 6 was then adapted to our topic, as seemed to be required. It was, then, given a broader scope by untying it from the concept of “exploitation of natural resources” and by not restricting its application to the environment. Article 6 expressed both the freedom of a State in its territory and the limits thereto: allowing the freedom to carry out or permit activities which, even if involving risk, were socially useful, while limiting that freedom so as not to threaten the territorial sovereignty of other States.104 The principle of prevention was developed in article 9. Article 10 referred to the principle of reparation. The latter was conceived for cases where no agreed treaty regime between or among the States concerned existed. The innocent 101

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“Adequate protection require measures of prevention that as far as possible avoid a risk of loss or injury and insofar as that is not possible, measures of reparation, but the standards of adequate protection should be determined with due regard to the importance of the activity and its economic viability.” “Insofar as may be consistent with the preceding articles, an innocent victim should not be left to bear his loss or injury; the costs of adequate protection should be distributed with due regard to the distribution of the benefits of the activity; and standards of protection should take into account the means at the disposal of the acting State and the standards applied in the affected State and in regional and international practice.” These were the texts: “(1) The draft articles must ensure each State as much freedom of choice within its territory as is compatible with the rights and interests of other States; (2) the protection of such rights and interests requires the adoption of measures of prevention and, if injury nevertheless occurs, measures of reparation; (3) insofar as may be consistent with those two principles, the innocent victim should not be left to bear his loss or injury.” The Report referred to the protection of the “rights” rather than of the “interests” of other States. The term “interests” could introduce an element of ambiguity which would be further complicated in the countries of the Anglo-American legal tradition, where the term would appear to have a range of meanings that are absent in the continental European system. For the Special Rapporteur, “interest” was merely something which a State wants to protect because it represents a gain or advantage for it—or because its elimination could cause a loss or disadvantage for it—but which does not have legal protection. At the point where there is a legal norm that protects an interest in some way or orders compensation in some way for its loss, it should be called a “right” rather than an “interest.” There would have to be a choice: either one is dealing with “rights,” or one is not. In the former case, obligations are just legal obligations. In the latter, there would be moral constraints, or constraints derived from international courtesy, or from some other source, but not from a “right.”

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victim must not be left to bear “alone” the harm suffered as a result of a hazardous activity carried out in another State. By “alone” the Report referred to the fact that harm must be assessed in relation to certain factors and that the victim might have to bear some extent of damage. However, any reference to this was dropped in the Sixth Report. The reason damages must be somehow shared among concerned parties is that such activities are lawful and presumably useful—not only to the State of origin, but also to the affected State. Modern technology made perpetrators and victims out of all States: many hazardous activities are carried out in nearly all countries, and today’s affected State might be tomorrow’s State of origin.105 Besides, certain activities must be considered to be carried out, not only to benefit those who conduct them, but also to benefit consumers. The carriage of oil in big tankers, for instance, no doubt facilitates the ready supply of oil and lowers its price. This benefits importers and consumers. Similar considerations may be made for most hazardous activities. Two other principles were proposed in the Fourth Report: one on cooperation (article 7) and one on the right of participation of the affected State. These two principles were interrelated: States should cooperate to minimize risks or damages. Risk-bearer (affected) States have a right to participate in the process of prevention because sometimes they know better than anyone how a prospective activity may adversely affect them; their participation could thus enhance prevention. Regarding containment and restoration of damage, cooperation was conceived as a two-way street: States of origin should cooperate with affected States, and vice versa, because disasters caused by transboundary damage may be considered, in some sense, a misfortune for all—including the States of origin, whose territories are seldom free from all damage. Justice and equity demanded, however, a preference for transboundary damage in the order of restoration. The idea of explicitly including a principle of participation did not make any headway with the Commission. 12. The Three Stages Corresponding to the First and Second Special Rapporteurs In all three drafts, the legal regime was to be a subsidiary regime—i.e., to be applied only in case there was no other rules applicable to the case.

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However, it was also true that in the case of some developing countries, activities of this kind were not important, or that for some other reasons those considerations did not apply. Such considerations had to be present at the moment of assessing the damage and its compensation.

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12.1. Quentin-Baxter’s Schematic Outline The regime applies to activities carried out in the territory or under the control of one State which give or may give rise to loss or injury to persons or things within the territory or in places under the control of another State. (a) Prevention The breach of obligations regarding prevention does not give the affected State any right of action, according to section 2, paragraph 8. In other words, there is no liability for wrongful act in that draft. (b) Liability If transboundary harm arises and there is no prior agreement between the States concerned regarding their rights and obligations, these rights and obligations shall be determined in accordance with the schematic outline. There is an obligation to negotiate such rights and obligations in good faith. Section 4, paragraph 2, establishes that the acting State—that is to say, the State of origin—shall make reparation to the affected State.106 The amount of the reparation due is determined by a number of factors.107

(c) Overview of the Outline The general ideas of the outline are, therefore, as follows: (i) Recommendations to States regarding the prevention of incidents due to activities “which give or may give rise to” transboundary harm. In particular, an exhortation to draw up a legal regime between the States concerned, which would apply to the activity;

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This obligation, however, is subject to a condition that did not find any support in the Commission: that the reparation for injury of that kind or character should be in accordance with the shared expectations of the States concerned. For the concept and effect of such expectations, see section 4, paras. 2–4, of the schematic outline. These include the so-called “shared expectations”: the principles spelled out in section 5 of the schematic outline—inter alia, that insofar as may be consistent with these articles, an innocent victim should not be left to bear his loss or injury—the reasonableness of the conduct of the parties and the preventive measures of the State of origin. The factors outlined in section 6 (some of which were adopted in draft article 20 proposed by the second Special Rapporteur) also play a role, as do the matters referred to in section 7, which remained open for consideration by the Commission; however, they are very vague, given the preliminary nature of the schematic outline.

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(ii) State liability for transboundary harm caused by dangerous activities;108 (iii) Nature of the liability: sine delicto, since the acts are not prohibited by international law; (iv) Attenuation of liability: although, in principle, the innocent victim should not bear the injury, the nature and amount of the reparation must be negotiated in good faith between the Parties, taking into consideration a series of factors which may reduce the amount. 12.2. The Regime of the Second Special Rapporteur’s Tenth Report After nine reports were presented by the second Special Rapporteur, the Drafting Committee presented, and the Commission provisionally approved, 18 articles on the scope, use of terms, prevention and principles—including the principle of liability. Those draft articles are transcribed in Annex. III. These articles were adopted by the 1996 Working Group almost to the letter, and later on by the Commission with minor changes. It was about time to tackle the liability part of the topic—which was, of course, the most difficult part. That was a task for the Tenth Report of the second Special Rapporteur. But, before entering into it, the report came back to the issue of “prevention” and offered the Commission the alternative of using “response measures” to refer to ex-post prevention.109 To summarize, the system proposed in the Tenth Report is as follows: • State responsibility for failure to comply with prevention obligations,110 whether or not material damage ensued, with the characteristics and consequences of international law.111 108

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Although the scheme (sect. 7, para. II.1) leaves open the possibility that by a decision of the parties to the negotiation, there may be another choice as to where primary and residual liability should lie, and whether the liability of some actors should be channeled through others. “Response measures” refers to any reasonable measures taken by any person in relation to a particular incident to prevent or minimize transboundary harm. The “harm” referred to in subparagraph … includes the cost of preventive measures, wherever taken, as well as any farther harm that such measures may have caused. Thus, the State is responsible for all the consequences of the wrongful act—including cessation, satisfaction, guarantee of non-repetition—[see Tenth Report of the Special Rapporteur (footnote 6 above), pp. 136 et seq., paras. 31–41], but not for compensation, which is always the responsibility of private operators—except in the situation of n. 133, where an alternative is for the State to take responsibility for part of the amount due as compensation. The operator’s liability is sine delicto, since it arises from acts not prohibited by international law and redresses the material harm caused by the dangerous activity. An alternative was proposed by the Special Rapporteur if damage caused by the activity was due to the failure of the State to fulfill its obligations of prevention: either to pay the part of

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• Liability on operators of the activity for all significant transboundary harm caused by such activity during the periods in which they exercise control of such activity. • Where appropriate, financial securities or insurance required of operators within limits as determined by the State. • Competent courts: those of the affected State, the State of origin or the State where the liable operator has his domicile or residence or principal place of business. • Provision in the domestic law of States for judicial remedies that allow for prompt and adequate compensation or other relief for the harm caused. • Causality: courts shall take due account of the increased danger of causing harm inherent in the dangerous activity. • Provisions relative to enforcement of judgments and exceptions. • Exceptions: act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or act or omission done with the intent to cause harm by a third party. • Time limits. 13. The 1996 Working Group Following the suggestion of the Special Rapporteur, the Commission appointed a working group to make an estimate of the situation and suggest guidelines for the future work. Furthermore, the appointed 1996 Working Group was to consolidate the work done up until then and thus facilitate the task of the incoming Commission. The working materials for the Group were the articles already provisionally approved by the Commission,112 the reports of the two Special Rapporteurs, and the debates held on the topic in the International Law Commission and in the General Assembly. The Working Group’s Report accepted the texts on prevention that had been approved by the Commission up to that point—the gist of which has already been commented upon. Regarding the scope of the subject, a proposal was made in the Group which did not meet consensus and was left within brackets (Article 1.b). Regarding “liability” proper, the Group tried to build a consensus around rather narrow areas of agreement—which made for a somewhat cautious proposal, but one that, it was hoped, would find acceptance among States. Due to a lack of time, the Report was not considered by the plenary of the

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compensation not covered by the operator or its insurance, or to have no responsibility whatsoever. See Annex III.

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Commission,113 but it was nevertheless sent to the General Assembly and Governments were invited to comment. 14. The 1996 Draft The following were the main items of the topic included in the 1996 Report. (The draft articles on prevention are self-explanatory and need no comments. They will be compared with those of the 1997 Group’s Report.) 14.1. The Scope of the Topic Article 1 (a) refers to activities not prohibited by international law involving “a risk of causing significant transboundary harm.” Some members114 wanted the scope of the subject to be restricted to socalled “ultra hazardous activities,” usually defined as those creating a low probability of disastrous harm—such as the nuclear industry, the space activities, the oil industry, etc. The majority of the group, however, favored the inclusion of all “hazardous activities,” as described below. The Report of the Working Group explains that activities with a “very low” probability of causing significant transboundary harm were excluded.115 In fact, the peg was set higher than that: activities with less than “a high probability” of causing significant harm were excluded, according to Article 2, paragraph (a). Article 1 (b) was put into brackets, reflecting the lack of agreement of the working group. It included “…other activities not prohibited by international law which do not involve a risk referred to in subparagraph (a), but nonetheless cause such harm.” These activities were not, however, those specifically referred to as activities “of harmful effects”—i.e., those producing transboundary harm in the normal process of their development. It was not clear, in the present writer’s opinion, exactly what activities were envisaged in that drafting. Apparently, the new paragraph would have involved activities normally presenting no risk—or a practically insignificant risk—but to which some (transboundary) damage could, notwithstanding, be attributed.116 In the opinion of the Special 113

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In that session, the Commission had to finish the second reading of the Code of Crimes and the first reading of the articles on responsibility. Particularly Mr. Robert Rosenstock, the American member. International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law, Report of the Working Group (1966) Doc. A/CN.4/L.533 and Add.1 p. 19. The explanation given in the commentary did not correspond to the Special Rapporteur’s understanding of the text. See, p. 107, para. 26.

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Rapporteur, the scope of the proposed addition was very vague and, in one of the possible interpretations, it would have been equivalent to sanctioning all transboundary damages as compensable—whether or not they were caused by a hazardous activity. That would have completely changed the focus of the draft; instead of proposing a regime for hazardous activities—which the international community badly needed and on which there was already considerable, although piecemeal, international practice—the Commission would have submitted to the General Assembly a very general—and utopian—regime on transboundary damage. Besides, it was a completely new and unexplored possibility which had to be included in the article as a proposal. It was not eventually eliminated in 1996 only because the report could not be examined in detail by the plenary of the Commission, due to a lack of time. 14.2. The Principles (a) The Principle of Prevention: Freedom of Action of States and the Limits Thereto The principle set up by article 3—referring to the freedom of action of States in their territory and the limits thereto—was considered basic to the topic. Obviously, its text follows Principle 21 of the Declaration of the United Nations Conference on the Human Environment and Principle 2 of the Rio Declaration on Environment and Development.117 Article 3 was, as said before, a generalization of Principle 21. The State’s freedom of action is subject to the general obligation of preventing or minimizing the risk of causing significant transboundary harm as well as to other obligations particular to that State.118 In fact, that paragraph of Principle 21 could also be interpreted as giving foundation to a strict obligation of reparation for damage caused to the environment. However, that is not the orthodox interpretation of learned opinion; neither is it the interpretation prevalent in international practice. Principle 21 of

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“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” This principle has also been enunciated, in relation with the marine environment, in article 193 of the United Nations Convention on the Law of the Sea. That article reads as follows: “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.” These limitations are announced in the second part of the article. They are imposed to the State by specific treaty obligations to prevent or minimize the risk of causing significant transboundary harm.

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Stockholm is, then, one of the legal bases of prevention as a principle of international law. As we have seen in preceding chapters, prevention may be exercised in two different moments—i.e., before and after an accident has occurred. The 1996 Draft faithfully reflects both possibilities by stating: “States shall take all appropriate measures to prevent or minimize the risk of significant transboundary harm and, if such harm has occurred, to minimize its effects.”119 As explained above, what we have called “prevention ex post” is expressly included in most liability conventions, particularly when dealing with damage. Reasonable measures of ex-post prevention are to be reimbursed for whoever took them—the State or a private party interested in containing or abating the damage. The last member of phrase was, no doubt, about the prevention of adverse results after the incident menacing or causing damage had taken place. (b) Liability The principle of liability was the most intractable issue to be dealt with by the group. As said in the commentary to article 5, however: In including this article within the set of fundamental principles of the topic, the Commission takes careful note of principle 22 of the Stockholm Declaration and principle 13 of the Rio Declaration in which States are encouraged to cooperate in developing further international law regarding liability and compensation for environmental damage caused by activities within their jurisdiction or control to areas beyond their national jurisdiction. These principles demonstrate the aspirations and preferences of the international community.120

The general considerations made on the principles applied to article 5 on liability, in particular. They also rested on the basis of well established principles—like sovereign equality of States, neminem laedere and unjust enrichment. As such, the group considered that article 5 should be acceptable by the General Assembly.121 Its text read: “In accordance with the present articles, 119

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The drafting could have been better. In fact, it is the occurrence of the accident, whether or not damage has yet been caused, that marks the starting point in time of ex-post prevention. Pollution caused by an accident in the national sector of an international watercourse may be stopped before it reaches the border with another State member of the system, thus preventing transboundary harm. Working Group Report (1996) cit., Doc. A/CN.4/L.533, p. 31. It should be recalled that Professor Goldie—following Professor Cowan—concluded that damage caused by hazardous but lawful activities should be regarded as caused without fault, but also as implying a compensable expropriation of certain “amenities”—such as the right of each person to pure water and clean air and a breach of personal safety. Failure to compensate would be tantamount to unjust enrichment. “Second Report…,” p. 28, note 47.

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liability arises from significant transboundary harm caused by an activity referred to in article 1 and shall give rise to compensation or other relief.” The expression “other relief ” referred to cases where payment of a sum of money was not adequate. In the field of environmental law, for example, restoration is sometimes the best remedy. Moreover, in a damaged ecosystem, the introduction of certain components equivalent to those diminished or destroyed may be considered a relief close to reparation by equivalent. Such a solution is envisaged in certain international instruments.122 The extent of the principle is limited by the phrase “in accordance with the present articles”—in particular, by reference to the mechanisms provided for in Chapter III. The extent of the principle of liability would also be limited by any obligation to make compensation or to provide other relief, which may exist independently of the 1996 draft articles (for example, in a treaty to which the State of origin and the affected State are parties). It is also to be noted that the text of article 5 did not identify: • • • •

The entity that is liable and must make reparation; The forms and the extent of reparation; The damage that is subject to reparation; and The basis of liability.

As an explanation, the Report of the Working Group says: These matters are dealt with in various ways in Chapter III of these articles, pursuant to which these issues may be dealt with by the law of the State of origin and through its courts on the basis of non-discrimination (see article 20 and the commentary thereto), or by negotiation between the State of origin and the affected State or States on the basis of some general criteria there laid down (see articles 21 and 22 and the commentaries thereto).123 122 123

Working Group Report (1996) cit., Doc. A/CN.4/L.533 pp. 33/34. Id., p. 58/59. It goes on to say: “In fact, in international practice there are several ways of remedying the transboundary harm caused by a hazardous activity to persons or property, or the environment. One is the absolute liability of the State, as in the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972, so far the only case of State absolute liability to be specified by a multilateral treaty. Another way is to channel liability through the operator, leaving the State out of the picture, as in the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment of 9 March 1993. Still another is to assign to the State some subsidiary liability for that amount of compensation not satisfied by the operator, such as the Convention for the Third Party Liability in the Field of Nuclear Energy of 29 July 1960 and the Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963. In other contexts, the State may be responsible only in cases where due diligence is breached, in a way similar to that of article 7 of the draft articles on the Law of the Non-navigational Uses of International Watercourses, although such a rule may impose an obligation within the framework of State responsibility (and therefore falling outside the scope of the present articles).”

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In other words, the applicable law was that of the State of origin—presumably a legal system complete with liability for damages, including perhaps environmental damage. This is another example of the aforementioned cautious approach taken by the Working Group on the subject: in view of the foreseen difficulties regarding the acceptance of liability, only general concepts were chosen to placate the opposition and postpone some complicated legal issues. It was, in sum, a short step in the right direction. Although a disappointing solution to many, it was much better than nothing—as had been the case.124 Moreover, it was a way of sounding out the General Assembly in respect to a general idea of liability applying to damages caused by a hazardous activity. That liability was not necessarily on the State, as some writers have affirmed.125 (c) The Principle of Non-Discrimination and the Domestic Channel Article 20 imposed on the State of origin the duty not to discriminate on the basis of nationality, residence or place of the damage in relation to persons who have suffered significant transboundary harm. That meant that victims had to be allowed access to judicial or other procedures, as well as a right to claim compensation or other relief according to the State of origin’s legal system. Consequently, the legislation of States (that were parties to the treaty) had to provide for equal access to State courts and equal treatment of all damaged parties—nationals or foreigners, residents in the country or abroad—in the same manner as if the damage had taken place in the State’s own territory. The Working Group considered that a broad interpretation of the nondiscrimination principle could make up for the absence of a complete set of articles on civil liability or the use of the domestic channel.126 124

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It all depended on the law of the State of origin, and, in that context, the draft was convenient for developing countries with developed neighbors (i.e., probable polluters). The environment is usually better protected by the municipal law of developed States and often times their judicial systems function better than those in developing countries. Liability was not strictly imposed in the 1996 draft: If the domestic law channel was chosen by the victims, accountability would have been fixed by the applicable law, which was that of the State of origin. If diplomatic negotiations were resorted to, the outcome would most likely have been impossible to classify as one or the other form of accountability. Besides, regarding who had to disburse the money to pay the compensation, the State of origin and the private entity that caused the damage could have entered into some sort of agreement. “This obligation does not intend to affect the existing practice in some States of requiring that non-residents or aliens post a bond, as a condition of utilizing the court system, to cover court costs or other fees. Such a practice is not ‘discriminatory’ under the article, and is taken into account by the phrase ‘in accordance with its legal system.’ ” Working Group Report (1996) cit., Doc. A/CN.4/L.533, p. 79.

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The principle of non-discrimination provides the injured parties with a ready-made law, established courts of law and procedures—all of them in the State of origin. The Report of the Working Group quotes several precedents for the obligation contained in this article.127 The use of the domestic channel, in one form or the other, seems an irreversible trend in international practice regarding hazardous activities. Practically all liability conventions on hazardous activities eliminate the primary liability of the State to place it on the private entity, individual or company controlling the activity at the moment of the incident. In practice, as has been seen, the loss may be allocated to a group of persons and entities who participate in the activity in question—even if they have very little or nothing to do with the particular incident causing the damage, as seen in the oil industry. This somehow completes the circle: the costs for an activity which is simultaneously hazardous and useful falls collectively on the part of the community which benefits most from that activity and—if strictly necessary—also on the national community itself, personified by the State participating in the last layer of liability. On the other hand, the individuals who suffer damage on account of the risks inherent to the activity are compensated, as they should be. 14.3. Interstate Negotiations Chapter III, an important chapter, deals with the consequences of transboundary harm providing: …two procedures through which injured parties may seek remedies: pursuing claims in the courts of the State of origin, or through negotiations between the State of origin and the affected State or States. These two procedures are, of course, without prejudice to any other arrangements on which the parties may have agreed, or to the due exercise of the jurisdiction of the courts of the States where the injury occurred. The latter jurisdiction may exist in accordance with applicable principles of private international law: if it exists, it is not affected by the present articles.128

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The precedents include: the Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden of 19 February 1974; the ECE Convention on environmental impact assessment in a transboundary context of 25 February 1991; the Guidelines on responsibility and liability regarding transboundary water pollution, part II.B.8, prepared by the ECE Task Force on responsibility and liability regarding transboundary water pollution; the Draft ECE Charter on environmental rights and obligations; and recommendations of international organizations, such as that of the Council of the Organization of Economic Cooperation and Development (OECD) on Implementation of a regime of equal right of access and non-discrimination in relation to transfrontier pollution. Id., p. 80. 128 Id., p. 77.

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If the domestic channel was used, the municipal law of the State of origin would be applicable; whereas, if negotiations between the concerned States are resorted to, the result would be agreed upon by the parties in pursuance to the principles of the draft articles. According to article 5, there should be compensation, but the compensation is subject to the considerations of article 17. Article 21 provides for negotiations between the affected State and the State of origin. The article does not establish the priority of one procedure over the other, it merely recognizes that there may be cases in which negotiation may prove to be the only way to obtain compensation or relief, or may simply be more diplomatically appropriate. The Report gives examples: … [I]n a particular incident of transboundary harm, the affected State itself, apart from its citizens or residents, may have suffered significant harm and the States concerned may prefer to settle the matter through negotiations. There may also be situations in which it would be impractical or impossible for the injured citizens or residents of the injured State to lodge complaints in the courts of the State of origin, either because of the large number of injured persons, the procedural obstacles or because of the distance between the State of origin and the affected State or the lack of economic means for the injured persons to pursue claims in the courts of the State of origin, or the absence of any remedies in the substantive law of the State of origin.129

14.4. The Unity of the Subject: the Title Contrary to what was argued by some members in the 1997 debate, prevention and liability are directly connected, and their link is essential to the topic. We submit that such a link is none other than the hazardous nature of the activities of article 1. The integrity of the continuum “risk-damage” is respected; prevention from and compensation for significant transboundary harm provide a complete legal framework for such activities, essential to our technologically advanced societies. Regarding the title of the topic, it was not changed in 1996 because the Commission had agreed to postpone that matter until the end of the exercise. This circumstance underlines the provisional character of the draft presented to the General Assembly. 15. Concluding Remarks With respect to the liability topic, there was an especially complex background of interests behind the positions of State delegates in the General Assembly 129

Id., p. 81.

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and of members of the ILC. Among both, delegates and members from industrialized130 and socialist131 countries were, in general, against the codification of the subject; whereas, a majority of those from developing countries were strongly in favor (with the exception of a few132). As independent experts, Commission members’ individual positions do not necessarily have to coincide with that of their national States,133 but the fact was that the situation prevailing in the General Assembly was also, by and large, reflected in the ILC. One reason widely invoked for opposing the subject was its alleged novelty and the incalculable and potentially catastrophic consequences that could emanate from an arcane, mysterious type of accountability134—an argument which ignored the fact that a similar type of liability had been part and parcel of the objector members’ own domestic legal systems for many years. It also ignored the fact that—under names such as strict liability, responsabilité pour risque, responsabilidad objetiva (etc., etc.,)—“liability” was also widely accepted as a necessary legal response to the existence of risk in modern societies. The international community of our day—as well as national communities for almost a century now—needs to have hazardous activities regulated. That was why liability was introduced in so many domestic legal systems and why, in 1996, the Working Group proposed article 5135 (“on the principle of liability”): The principle of liability and reparation is a necessary corollary and complement to article 4. That article obliges States to prevent or minimize the risk from activities that are not prohibited by international law. Article 5, on the other hand, establishes an obligation to provide compensation or other relief whenever significant transboundary harm occurs. The article thus rejects a regime which would permit the conduct of activities hazardous to other States without any form of compensation or other relief when harm occurs.”136 130

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With the exception of those favoring environment protection—for example, those belonging to the Nordic Group. Later on, the Chernobyl incident further complicated the position of the Soviet Union and of the member States of the Socialist Group—as well as of the successive members for that country in the Commission. These exceptions were, perhaps, referring to their position as actual or prospective transboundary polluters. Commission members are not supposed to receive, and much less to abide by, instructions from their governments. A new apocalyptic version of the legendary Pandora’s Box, so popular in UN parlance. This was the text of Article 5: “Liability. In accordance with the present articles, liability arises from significant transboundary harm caused by an activity referred to in article 1 and shall give rise to compensation or other relief.” Working Group Report (1996) cit., Doc. A/ CN.4/L.533, p. 32. Report of the International Law Commission on the work of its forty-eighth session, 6 May to 26 July 1996 (A/51/10) Annex I, Commentary (5).

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As may be noticed by the mere reading of the articles proposed by the Commission on “prevention” and those of the Tenth Report of the second Special Rapporteur, which was never properly considered by the Commission,137 the draft proposed by the 1996 Working Group was a step back from the sum of articles on “prevention and liability” at the disposal of the group. Among the omissions of the 1996 proposal, mention may be made of a definition of “damage”—including, notoriously, that of “environmental damage” that had been developed in the Eleventh Report of the second Special Rapporteur. The non-discrimination principle as the only entrance to the domestic channel represented a minimo minimorum access to justice approach.138 It would have been preferable to explicitly obligate States of origin to grant residents and non-residents equal access to and treatment in their courts and to have adequate remedies available to them—as well as a forum-shopping opportunity, as proposed in the Tenth Report. The Commission was busy putting the final touches on the texts of the articles on “Crimes against the Peace and Security of Mankind” and finishing the first reading of the “responsibility” topic, so there was no time to consider the 1996 draft and it was attached to the report of the ILC as just another piece of information for the Sixth Committee.

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The Commission dealt with that report in a perfunctory manner. Here is the pertinent passage of the 1995 ILC Report: “At the present session, the Commission had before it the Special Rapporteur’s eleventh report (A/CN.4/468) which was introduced at the Commission’s 2397th meeting, held on 8 June 1995. The Commission decided to consider the report, together with the tenth report, at its next session. The Commission, however, allocated a few meetings during which members of the Commission who wished to make preliminary observations on the two reports would be able to do so. At the 2397th to 2399th meetings, held on 8, 9 and 13 June 1995, some members of the Commission expressed preliminary views on both reports; a summary of those views is contained in section 3 below.” Most of the few interventions dealt with the eleventh report. The tenth report was never really considered. Cf. Report of the International Law Commission on the work of its forty-seventh session, cit., Doc. A/CN.4/472, p. 85 See A.E. Boyle “Globalising Environmental Liability: the Interplay of National and International Law,” Journal of Environmental Law (2005) Vol. 17, No. 1, p. 9.

Chapter VII

The Development in the International Law Commission: Consideration of the Topic since 1997 1. The 1997 Group In its 1997 session, the International Law Commission, with largely renewed membership, decided to review, once again, all the work done on the subject. It appointed yet another Working Group which recommended separating the issues of “prevention” and “liability.”1 Mr. Penmaraju Sreenivassa Rao, from India, was appointed Special Rapporteur. The reason for dealing with “prevention” separately was explained: The Working Group noted that the work of the Commission on ‘prevention’ was already at an advanced stage and that many of the articles in that area had been provisionally adopted by the Commission. In the view of the Working Group, the Commission is now well placed to proceed with the work and possibly the completion of the first reading of the draft articles on ‘prevention’ in the next few years. The Working Group also believes that any decision on the form and nature of the draft articles on prevention should be decided at a later stage.2

The Commission decided that “prevention” should be completed, under the subtitle “Prevention of transboundary damage from hazardous activities,” before examining “liability.” After consideration of Mr. Rao’s First Report, the Commission provisionally adopted a set of articles on first reading. The Working Group decided that “liability” was fundamental to the topic and that the Commission should retain it as a subject. That was a wise decision: restricted to “prevention,” the topic became one of primary obligations, the breach of which originated responsibility for wrongful acts. The original General Assembly mandate—to progressively develop and codify the injurious

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“The Working Group further noted that the Commission had dealt with two issues under the topic: ‘prevention’ and ‘international liability.’ In the view of the Working Group these two issues are distinct from one another, though related. The Working Group therefore agreed that henceforth the issues of prevention and of liability should be dealt with separately.” Doc. A/CN.4/L.542, p. 2. Ibid.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 119–152. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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consequences of acts not prohibited by international law—would have been ignored.3 Moreover, compensation for damage caused by the hazardous activity would have lost all legal foundation had obligations of prevention been complied with by the State of origin in the case:4 These obligations only went as far as the minimization of risk of transboundary harm, if its avoidance was impossible (article 3).5 In what legal limbo would damages caused by the inherent risks of an activity be confined? In this chapter, we shall compare the articles on prevention produced by the 1996 Group with those finally adopted by the Commission.6 In order to avoid repetitions, it must be remembered that the 1996 Group had adopted practically the same texts on prevention that had already been provisionally accepted by the Commission under the guidance of the second Special Rapporteur. 2. The Scope of the Topic 2.1. The 1996 Articles: Hazardous Activities The 1997 Working Group and the Commission finally decided to delete paragraph (b) of article 1, so the definition of the activities falling within the scope of the articles remained exactly as in the 1996 draft. 2.2. The List of Activities As explained in the Third Report of Mr. Rao, the 1996 Working Group: “…recommended that there was no need to spell out the activities to which the draft articles could be applied. As science and technology is constantly evolving, activities coming within the scope of the draft articles could vary from time to time. In any case, what is excluded is reasonably clear. For example, outside the scope of the present draft articles would fall: activities which cause harm in their normal operation;7 harm caused by creeping pollution, that is, harm caused over a period of time, harm caused by a combination of effects from multiple sources, 3 4

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Doc. A/CN.4/L, p. 32. After all, the Commission later expressed in the preamble to the 2006 Articles that they were aware “that incidents involving hazardous activities may occur despite compliance by the relevant State with its obligations concerning prevention of transboundary harm from hazardous activities.” “The State of origin shall take all appropriate measures to prevent significant transboundary harm or in any event to minimize the risk thereof.” The texts of the draft articles of the 1996 Group on prevention and those finally adopted by the Commission are transcribed in the Annexes. That is, those which do not involve a risk but a certainty of harm.

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activities which do not have a physical quality and whose consequences flow from an intervening policy decision relating to monitoring, socio-economic or similar fields; harm caused on the environment in general, or global commons in particular.8

The option of including a list of activities was thus discarded on the same grounds as in prior debates. 3. The Principles 3.1. The Principles in the 1996 Draft Some principles were included in the 1996 draft, although not explicitly identified as such. In our view, however, principles were contained in articles 3, 4, 5, 6, 12 and 20. Some of these principles—in particular those of articles 3 (freedom of action and the limits thereto) and 4 (prevention)—were derived from other well-established principles of international law—such as State territorial sovereignty9 and neminem laedere—as we have seen. Article 5 (liability) reflected an undeniable principle of justice, prevented unjust enrichment and intended to re-establish the balance of interests. The non-discrimination principle referred to in article 20 was based on the sovereign equality of States. The other principles reflected, as said above, aspirations and preferences of the international community. 3.2. Later Developments The Commission finally adopted the principles relating to prevention, cooperation, and non-discrimination. The principle of article 5 (liability) was left to be considered with the corresponding sub-topic on liability. The principle of article 3 (freedom of action and the limits thereto) was declared to be somewhat contained in other articles. We still believe that, subject to some changes, it would not have been redundant. In fact, the principle of freedom of action and limits thereto is basic to our subject and gives ground to all obligations of prevention. Its inclusion would have been a reminder that Principle 21 of Stockholm, on which it was based, was a part of general international law and it deserved to be extended to fields other than the environment and to activities other than the exploitation of natural resources.

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4. The Principle of Prevention Because Principle 21 of Stockholm was a part of general international law, including the principle of prevention in terms of Principle 21 would have given prevention the same legal condition—i.e., that prevention of transboundary harm must also be considered part of general international law.10 4.1. Later Developments in the Specific Obligations of Prevention: Defining their Legal Nature The final version introduced some modifications to the 1996 draft. A preliminary question for the examination of the specific obligations imposed by the definitive version of the Commission’s articles would be: What is the legal nature of such measures? The Commentary to article 3 (on the principle of prevention) explains that the obligation of States to take preventive or minimizing measures is one of due diligence, not one of result. States are obliged to adopt certain specified measures with a view to obtaining the desired result: it is the conduct of States that determines their compliance with their obligation under the articles.11 Regarding the concept of due diligence that should prevail in the interpretation of the articles, the two competing definitions in the famous Alabama case (United States v. United Kingdom) were examined in the Commentary. It explained: “The Tribunal seemed to have been persuaded by the broader definition of the standard of due diligence presented by the United States12 and

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The Commentary finds that support for the above contention is not only the declaration by the ICJ, but also on the Trail Smelter Case, as well as General Assembly resolution 2995 (XXVII) of 15 December 1972 on cooperation between States in the field of the environment, principle 3 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, adopted by the Governing Council of UNEP in 1978, as well as in numerous bilateral and multilateral treaties. Ibid. Doc. A/CN.4-L. 554/Add.1. “[A] diligence proportioned to the magnitude of the subject and to the dignity and strength of the power which is to exercise it; a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated; a diligence that shall in like manner deter designing men from committing acts of war upon the soil of the neutral against its will, “The Geneva Arbitration (The Alabama case)” in J. B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party, Vol. I, 1898, pp. 572-573.

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expressed concern about the ‘national standard’ of due diligence presented by the United Kingdom.”13 The Commission’s opinion in regard to the standard of due diligence in the context of its articles was that prevention must be appropriate and proportional to the degree of risk in the particular instance.14 Resuming, the Commentary added in paragraphs 17 and 18: The main elements of the obligation of due diligence involved in the duty of prevention could be thus stated: the degree of care in question is that expected of a good Government. It should possess a legal system and sufficient resources to maintain an adequate administrative apparatus to control and monitor the activities. It is, however, understood that the degree of care expected of a State with a well-developed economy and human and material resources and with highly evolved systems and structures of governance is different from States which are not so well placed. Even in the latter case, vigilance, employment of infrastructure and monitoring of hazardous activities in the territory of the State, which is a natural attribute of any Government, are expected.

(a) Impact Assessment Differing from article 10 of the 1996 draft, the text of article 7 made no mention of “risk,” even though the heading of the article reads: “Assessment of risk.” According to article 7, the decision to authorize the activity should be based “in particular” on an assessment of the possible transboundary harm caused by that activity. The purpose of the article was not, then, changed: it is an assessment of the risk of the impact, taking into account the probable extent of the harm. Also, the impact on the environment is included in both drafts. (b) Procedure in the Absence of Notification The final version establishes a more elaborate procedure prior to consultations between the State of origin and the States likely to be affected.

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“Such care as Governments ordinarily employ in their domestic concerns.…” The Tribunal stated that “[the] British Case seemed also to narrow the international duties of a government to the exercise of the restraining powers conferred upon it by municipal law and to overlook the obligation of the neutral to amend its laws when they were insufficient.” Ibid., p. 612. “Issues such as the size of the operation; its location; special climate conditions; materials used in the activity; and whether the conclusions drawn from the application of these factors in a specific case are reasonable, are among the factors to be considered in determining the due diligence requirement in each instance.” Id., p. 13.

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(c) Giving Information to the Public Article 8 has improved on article 15 (1996), in that States concerned will give information relevant to the hazardous activity, not only to their own public, but to any public likely to be affected. (d) Consultation Article 9 of the last version is substantially equivalent to articles 9 and 13 of 1996. The State of origin is, however, barred for six months from authorizing the activity pending receipt of the answer of the likely affected State. That is considered a reasonable lapse of time in the case. If consultations do not produce an agreed solution, the State of origin deciding to go ahead and authorizing the activity has to take into account the interests of the States likely to be affected without prejudice to the rights of those States.15 The expression “at its own risk” of the 1996 draft was deleted. (e) Emergency Preparedness Article 16 is an improvement on the 1996 text. It imposes on States concerned the obligation to make contingency plans to respond to emergencies. It is complemented by article 17 providing that States of origin shall, without delay and by the most expeditious means available, notify States likely to be affected of any emergency concerning activities of article 1. (f) Settlement of Disputes Article 19.1 refers dispute settlement to the agreement of the parties in the usual way. The second paragraph, however, establishes that “failing an agreement in this regard within a period of six months, the parties concerned shall, at the request of one of them, have recourse to the appointment of an independent and impartial fact-finding commission. The report of the commission shall be considered by the parties in good faith.” This is also an improvement on the 1996 version. (g) Non-Discrimination The principle of non-discrimination in the 1996 text referred to both prevention and liability if damage occurred. Having decided to separate those 15

An expression reminiscent of one used in the Lake Lannoux award.

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fields, the Commission naturally considered the principle at this stage in relation only to prevention.16 In this context, non-discrimination applies to “persons, natural or juridical, who may be or are exposed to the risk of significant transboundary harm as a result of activities within the scope of the present articles” and seems to envisage only the situation of those persons in relation to an existing or potential risk of transboundary harm affecting them. 5. Liability 5.1. The Attack on Liability In 1997, a serious attempt was made in the Commission to eliminate liability from the draft articles. Opinions were expressed in the ILC in favor of restricting the scope of the topic to prevention, which was ripe for codification, whereas liability was not considered to be.17 The Commission concluded that: “the scope and content of the topic remained unclear due to such facts as conceptual and theoretical difficulties, appropriateness of the title and the relation of the subject to State responsibility.”18 What was not clear, then, was nothing less than the scope and content of the topic; that was almost equivalent to saying that nothing was clear. And nothing was clear because there were conceptual and theoretical difficulties, doubts about the appropriateness of the title and the relation of the subject to State responsibility. The present writer has the impression that the difficulties, more than theoretical, were of a practical nature and that the Commission finally solved them by including strategically placed “should” instead of “shall” in the principles concerning “allocation of loss.” As to the title, the issue had been dealt with several times in the Commission, and every time the decision had been postponed until the moment when the draft articles were completed. For the new

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In the liability field, the principle of non-discrimination was a capital provision since access to the domestic channel was based on it. Even reduced in its application to prevention, the non–discrimination principle is important. Informal paper of Prof. Alain Pellet of June 11, 1997. The paper found that there was an imbalance between the part of prevention and the part of liability proper, the principles of which the paper found “vague, hazy and highly debatable”(p. 1). The adjectives employed, however, seem to have been stronger than the reasons behind them. Doc. A/52/10, para. 165.

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Commission, however, the question of the title became a condition precedent for the correct development of the subject. The relation of the topic to State responsibility merits special consideration. From the beginning, doubts were expressed by some Commission members regarding the autonomy of liability with respect to responsibility, the former being merely an “aspect of State responsibility,”19 “an important part of the whole topic” (of State responsibility)20 and so on. Throughout the almost 20 years of debate on the topic,21 doubts were repeatedly voiced on this same concern, although a full–fledged debate was never held—not even when the decision was made to create the liability topic. The Commission had pronounced itself clearly: responsibility and liability represented “two sharply different hypotheses.”22 Later on, the often-quoted paragraph expressing that opinion left no doubts: “Owing to the entirely different basis of the so-called responsibility for risk and the different nature of the rules governing it, as well as its content and the forms it may assume, a joint examination of the two subjects could only make both of them more difficult to grasp”.23

With regard to the issue, the second Special Rapporteur offered his opinion that liability had been correctly separated from State responsibility by the ILC in a statement succinctly mentioning the same reasons to distinguish liability from responsibility, as in Chapter III. In that opportunity, nobody intended to refute him. And many statements supported the position of the Special Rapporteur. Dean Mahiou, for instance, referred to the distinction between the foundation and the condition of responsibility, thus giving another good reason to have the two subjects separated.24

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Statement by Mr. Kearney, Yearbook…1963, Part One, p. 7. Mr. Ustor, id., p. 12. That is, the part of the topic referring to liability. Yearbook…1969, II, p. 233, para. 83. Report of the ILC to the GA on the Work of its 25th session. 1973, Part Two, p. 169. “In the case of responsibility for wrongful acts, the wrongful act was the foundation of responsibility, in other words the act generating responsibility; consequently the absence of a wrongful act meant the absence of responsibility. Damage in that case was simply a condition for implementing responsibility in order to obtain reparation. Conversely, in the case of liability for acts not prohibited by international law, injury was both the foundation and the condition of liability, in other words it was the act generating liability and the condition for implementing the procedure to obtain reparation. In short, injury existed in the regimes of both responsibility and liability but did not perform the same function in each case.” Yearbook…1987 cit., p. 151.

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Professor Graefrath expressed a certain measure of agreement with the Special Rapporteur.25 Professor McCaffrey was clearly in favor of it,26 and so were Mr. Hayes,27 Mr. Roucounas,28 Mr. Razafindralambo,29 Mr. Sepúlveda,30 Mr. Pawlak,31 Mr. Solari Tudela,32 and Mr. Reuter.33 To our knowledge, there was never thereafter a proper debate on that point intending to modify the Commission’s decision to consider liability as different and separate from responsibility. There were, however, isolated statements here and there—members opining against the separation of the topics but without invoking specific reasons for their contentions nor caring to refute those given by the Special Rapporteur in the above quoted statement. The original position of the Commission in favor of separating both subjects because they referred to two different forms of accountability remained, then, unchanged. A dissident voice was raised a few years later: with reference to the sharp distinction made by the Commission between the topics of State responsibility and international liability, Professor Arangio-Ruiz found “unacceptable such a drastic separation as that implicit in the words ‘two sharply different hypothesis.’ ”34 The separation of the two species of accountability was only

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“The Special Rapporteur rightly pointed out in his report that there was a great difference between the duty to make reparation in the case of State responsibility for wrongful acts and the duty of reparation in the context of State liability.” Id., p. 146. By stating that: “There were instances in which State responsibility shaded into the topic of international liability, but he agreed with the Special Rapporteur that, for the purpose of legal analysis, the two should be treated separately, since they were governed by entirely different legal regimes.” Id., p. 149. “[T]he present Special Rapporteur’s explanation of the various aspects of the difference between the two topics was extremely persuasive.” Id., p. 157. “In the case of responsibility for wrongful acts a State’s responsibility was engaged even where no injury had occurred, if that State had violated a primary rule of conduct, whereas the draft articles under consideration dealt with precisely the opposite situation, in which injury occurred even though the State had not violated a rule of conduct.” Id., p. 158. “agreed with the Special Rapporteur’s analysis of the key role of injury, which …set the topic of international liability apart from that of State responsibility.” Id., p. 161. “the two types of responsibility should be studied separately, even though some connection must be made.” Id., p. 177. “In other words, it [the subject] dealt with ‘liability’ which could be incurred regardless of the lawfulness of the underlying cause, as opposed to ‘responsibility’ which could arise only from wrongful acts” Id., p. 178. “However much overlapping with State responsibility there might be, there remained cases of strict liability which belonged exclusively to the present topic and which the Commission should regulate.” “He himself had no problem agreeing that, in some cases, the result would be responsibility for a wrongful act and, in others, liability for a non-wrongful act.” Id., p. 179. See note 25.

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due to “reasons of degree and of the special nature of the problems”.35 To illustrate his position, Professor Arangio–Ruiz compared the hypothesis of article 2050 of the Italian Civil Code,36 clearly a matter of due diligence,37 with the liability of the operator of a nuclear plant38 or a nuclear ship, regarding which he said: “The fact remained that such a situation also involved responsibility and the responsibility derived from the fact of having caused damage.” It has been shown, however, that there is no rule of general international law stating that causing damage is a wrongful act, nor is there one that states that causing harm by a lawful act transformed it from lawful to wrongful. The reasons alleged by Professor Ago, as he then was, to justify the separation of the two topics are still valid today: If injury caused by a lawful activity—that was to say, one that was not prohibited such as activities in outer space—entailed an obligation to make reparation, that was not strictly speaking a matter of responsibility but of guarantee (…). Once again it could be seen that a distinction must be made between the rules which attached responsibility proper to the violation of an obligation and the rules which imposed the obligations whose violation could entail responsibility.39

5.2. The Resurrection of Liability When prevention was completed, the Commission found that it had to face the task of starting anew with liability. The opinio juris of the international community was not then settled about a complete corpus juris regulating risk in international relations by means of

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Yearbook ... 1991, Vol. I, at p. 129. “Any person who causes damage to another in the exercise of an activity which is dangerous inherently or on account of the means used to carry it out shall be bound to make reparation unless he proves that he has taken all necessary measures to avoid it.” As quoted by Professor Arangio-Ruiz, id., p. 129. To professor Arangio Ruiz “the wrongfulness was present in the negative fact or act which consisted in not having taken all necessary measures to avoid the damage”. Of whom he said: “the operator had no escape: whatever measures he might have taken, he had to compensate for the damage. Op.cit., footnote 31 p. 130. Yearbook…1973, Vol. I, p. 12. That is, between primary and secondary norms. He added: “The Commission should not also study responsibility for risk, that was to say, the guarantee which States must give against possible injury from certain ‘lawful’ activities, but that was not part of the topic of responsibility for wrongful acts….”

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sine delicto State liability. The Commission had to look for a new approach to the subject. One possible way was to concentrate on the core principles of the subject and to abandon any attempt to regulate all kinds of hazardous activities in one instrument: a general approach seemed in contradiction to the international practice of focusing on specific activities of an undoubted hazardous character and establish for them conventional liability regimes. Only the Lugano Convention adopted such a general approach, encompassing all activities dangerous to the environment, but that instrument has not made any headway up to now. The General Assembly was right in insisting on the liability sub-topic: the international community needed clear legal principles to regulate the growing presence of technological risk. A consensus had to be sought on a handful of principles which could help clarify the rather confuse legal situation on this matter. Besides, customary law plays an important role in the international community nowadays and it may develop from texts through the general acceptance by States. After all, the moods of States vary: during the time that the present writer was Special Rapporteur, no consensus was possible—not even one on a text as weak as that finally accepted by the Commission. 6. The Articles on Allocation of Loss The International Law Commission resumed its work on liability in its fiftyfourth session (2002), appointing another working group and a Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao. The following year, Mr. Rao presented his First Report on a legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities. The Special Rapporteur reminded the ILC of the 2002 Working Group’s recommendations—namely that: a) the scope of the topic should be limited to the same activities that were covered by the draft articles on “prevention,” b) the Commission should concentrate on “harm” caused by a variety of reasons but not necessarily involving State responsibility, c) the topic would be an issue of “allocation of loss” among different actors involved in the operation of hazardous activities, d) the articles should cover loss to persons, property including the elements of State patrimony and natural heritage and the environment within national jurisdictions.40 By the end of the first reading, the Commission had arrived at an agreement on the text of a preamble and eight principles. It was the first time in the 40

Report of the International Law Commission, Fifty-fifth Session (5 May-6 June and 7 July-8 August 2003).

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history of the subject that such an accomplishment was attained and, on that basis, the second reading was short and fruitful. The final title proposed by the Commission was: “Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities.” In its Report to the GA, the Commission makes a general Commentary41 to the articles, which will presently be reviewed. The Preamble: • Places the draft principles in the context of the Rio Declaration on Environment and Development and recalls the draft articles on the Prevention of Transboundary Harm from Hazardous Activities. • Refers to the fact that, notwithstanding the compliance of the State of origin with its prevention obligations, incidents may occur which cause transboundary damage to other States and their nationals, in which case the victims should not be left to carry their losses. They should be given “prompt and adequate compensation.” • Recalls that the principles are intended to provide guidance to States planning to enter into a conventional regime regulating a hazardous activity and indicate the matters to be dealt with, thus contributing to the development of international liability. • Declares that responsibility for wrongful acts is applicable in cases where States infringe their prevention obligations. The general Commentary stresses several basic understandings that underpin the articles: • The regime should be general and residual in character, and without prejudice to the relevant rules of State responsibility adopted by the Commission in 2001. • The scope of the articles and the threshold of damage (set at “significant”) should be the same as that of the draft articles on prevention. • The issues concerning global commons are different and have their own particular features, requiring separate treatment and therefore they should not be included in this topic. • Some policy considerations guided the work of the Commission in preparing the draft articles: a) that, even admitting that hazardous activities 41

Text adopted by the International Law Commission at its fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10). The report, which also contains commentaries on the draft articles, may be found at http://untreaty.un.org/ilc/reports/2006/2006report.htm. It appeared in Yearbook ... 2006, Vol. II, Part Two. The general Commentary runs from p. 110 to p. 114. The present quotation is from p. 110.

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are essential for economic development and beneficial to society, prompt and adequate compensation must be available for transboundary damage caused by them; b) contingency plans and response measures should be placed over and above those contemplated in the draft articles on prevention. Liability lies primarily with the operator, although it may be placed on other entities designated by agreement or by the law, as long as the person or the entity concerned is functionally in command or control, or directs or exercises overall supervision. Liability should not require proof of fault and may be limited or subject to conditions, limitations and exceptions. Provision should be made for supplementary funding, such funding being particularly important if limited liability is adopted. Basically, the loss should be spread among multiple actors, including the State if appropriate. Under international law, the State has duties of prevention entailing certain standards of due diligence. The primary liability of the operator does in no way absolve the State from discharging such duties. Aspects of civil liability or criminal liability—or both—may be involved in a case of damage caused by hazardous activities. Principles of civil law, or common law, or private international law, governing choice of forum as well as the applicable law may come into focus depending on the context or jurisdiction involved. Therefore, the proposed scheme is flexible and without prejudice regarding the claims that might arise or questions of the applicable law and procedures. The draft principles are cast as a non-binding declaration of principles mainly because: On balance, the Commission has concluded that recommended draft principles would have the advantage of not requiring a harmonization of national laws and legal systems, which is fraught with difficulties. Moreover, it is felt that the goal of widespread acceptance of the substantive provisions is more likely to be met if the outcome is cast as principles. In their essential parts, they provide that victims that suffer the damage should be compensated promptly and adequately; and that environmental damage, relating to which States may pursue claims, be mitigated through prompt response measures and, to the extent possible, be restored or reinstated.42

Besides, the general and residuary character of those principles, as well as the different approaches that may be required—due to the varying

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characteristics of particular hazardous activities—advocate for their nonbinding character. • The formulation of the draft principles as a coherent set of standards of conduct and practice was the main objective of the Commission, and not that of identifying the current status of the various aspects of the draft principles in customary international law. • In the context of liability, “harm” is used “where the reference is only to the risk of harm and not to the subsequent phase where harm has actually occurred. The term ‘damage’ is employed to refer to the latter phase. The word ‘transboundary’ qualifies ‘damage’ to stress the transboundary orientation of the scope of the present principles.” 6.1. The Report of the 2004 Working Group The report of the 2004 Working Group had a decisive influence on the final drafting of the 2006 texts, which followed both in the recommendatory form of all eight principles and in their content the general lines proposed by that group.43 6.2. The Scope of the Articles It has already been said that the activities encompassed by the articles here are the same as those encompassed by the articles on prevention. The Commentary of Principle 1 repeats that statement.44 6.3. The Concept of Damage Some of the principles contained in the draft articles are self-explanatory, others require development. Principle 2 refers to the use of terms. This is a very important article, particularly as concerns the definition of “damage,” including “environmental damage.” The report of the 1996 Working Group omitted any such definition. As said before, that is an important deficiency; particularly because the notion of environmental harm had been included in several reports of the second Special Rapporteur and the Commission had never rejected its inclusion in the articles.45 43

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Although doubts may remain on the implicit compulsory nature of some of those principles. (See below.) Id., p. 116, point (1). In Article 2, paragraph c) of the second Special Rapporteur’s Fifth Report, “damage to the environment” had been included within the meaning of “transboundary harm.” In the Eighth Report of the same Rapporteur, a new paragraph in article 2 also developed the

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(a) The Threshold There is no threshold of damage in the articles on allocation of loss. The concept of damage, however, intervenes in the determination of a threshold of risk which has to be taken into account regarding the scope of the allocation of loss articles. These articles refer to the same activities as the prevention articles—and there the “hazardous activities” were referred to as those involving a risk of causing significant transboundary harm. But then, such risk is defined as one including “risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm.” “Harm” here is a variable, and cannot be a threshold. Even if “significant” is used to refer to harm, in fact, it refers to the level of risk, which is a combination of probability and harm. It should have said “significant risk is…”.46 The Commission was realistic and chose to use the continuum “riskdamage” to define the threshold above which an activity starts being “hazardous.” It also serves as a ceiling above which an activity ceases to be hazardous to become something different and perhaps unacceptable. (b) Damage to Persons and Property The Commentary states that “damage to persons includes loss of life or personal injury.”47 As a result of a loss of life or personal injury or damage to property, there could be consequential economic losses—including loss of earnings resulting from personal injury. As to pure economic loss, it is increasingly considered an item of compensable damage in domestic legal orders and international liability legal regimes.48 Property forming part of a cultural heritage is protected under the heading of “damage to persons and property” in subparagraph (ii). It comprises

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concept of damage and of environmental damage (See Yearbook… (1992) Vol. Two, Part Two at pp. 50/51, and n. 118). The debate on that Report shows no record of criticism regarding the inclusion of those paragraphs in the article. The Rapporteur’s Eleventh Report was entirely devoted to “environmental harm.” The threshold of risk is the only threshold there is in those articles. “The term ‘significant’ is understood to refer to something more than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial.’ The harm must lead to a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States. Such detrimental effects must be susceptible of being measured by factual and objective standards.” See Yearbook… quoted in note 58, at point (2) p. 123. Yearbook… 2006 cit., p. 125. “In the absence of a specific legal provision for claims covering loss of income, it would be reasonable to expect that if an incident involving a hazardous activity directly causes loss of income, efforts would be made to ensure the victim is not left uncompensated.” Id., p. 126.

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monuments and groups of buildings (separated or connected) which are of outstanding universal value from the point of view of history, art or science; as well as sites, namely works of man or the combined works of nature and man; and areas, including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.49 (c) Environmental Damage A concept of environment is a necessary starting point towards the definition of environmental damage. There is, at present, no universally accepted concept of the environment: elements considered to be part of the environment in some conventions are not present in others. Existing conventions admit in their definition of environment, or within the concept of environmental damage, elements which may not properly belong to the environment. As said in the Green Paper of the Commission of the European Communities: “regarding the definition of environment, some argue that only plant and animal life and other naturally occurring objects, as well as their relationships, should be included. Others would include objects of human origin, if important to a people’s cultural heritage.”50 In the present writer’s opinion, a working definition restricted to the notion of “natural environment” would help avoid confusion and confine compensation for environmental damage within reasonable limits. Principle 2 correctly includes “cultural heritage” under the heading of “property,” not “environment.” The definition in paragraph (b) of article 2 includes natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between them.51 The continuation: “and the characteristic aspect of the

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Definition taken from the 1972 Convention concerning the Protection of World Cultural and Natural Heritage, Art. 1. In times of armed conflict, protection of the cultural heritage is inserted in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Besides: “international humanitarian law prohibits commission of hostilities directed against historical monuments and works of art which constitute the cultural heritage of peoples.”(Id., cit., p. 126/127) Commission of the European Communities, “Communication from the Commission to the Council and European Parliament and to the Economic and Social Council—Green Paper on Environmental Liability,” final report. COM (93) 47 (Brussels, 14 May 1993), p. 10, sect. 2.1.7. The Governing Council of the UNCC, established by the Security Council in its resolution 687 (1991) of 3 April 1991 in connection with Iraq’s liability for damage caused in the Gulf war, considers certain elements subject to compensation when, in paragraph 35 of its decision of 28 November 1991, revised on 16 March 1992, it says that payments will be

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landscape” opens the definition up to broader aspects of the environment by including non-use values—like the aspect of the landscape. However, the inclusion is acceptable, since natural resources are intimately connected with environmental values. Such values may be (a) “use values”—that is, human uses of that environment, in the case of a lake, for instance, fishing, water-skiing, wind-surfing and similar uses, like commercial uses—or (b) emotions that the environment provokes in human beings—such as aesthetic emotions caused by the landscape, or the feeling of satisfaction for the continued existence of familiar features of the environment, etc.—which may be called “non-use values.” Environmental values may not form part of the environment proper, but they are affected by damage to the environment proper. The frustration caused by the deterioration of these values or by their loss seems to have been considered under the heading of environmental damage in Principle 2 of the Commission’s 2006 articles. Then, “environmental damage” will be “damage done to the components of the environment as well as the loss or decrease of environmental values caused by the deterioration or destruction of those components.” Finally, some aspects of the damage caused as a consequence of the deterioration of the environment should not be considered environmental damage, as they are already covered in the existing notion of damage to persons or property. Let us take an example—a small lake is polluted by chemicals—with the following points to consider: (a) The pollution diminishes the fish population of the lake and changes the quality of the water. (b) It can no longer be used for fishing, bathing or windsurfing because any contact with the water is dangerous to people. (c) The vegetation on the coast suffers, the landscape is altered. (d) Some people inadvertently drink water from the lake, become ill and must be hospitalized.

available with respect to direct environmental damage and the depletion of natural resources: This will include losses or expenses resulting from: (a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources.

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(e) The owner of the hotel by the lake suffers significant economic loss from lack of clients. Points (a) and (b) show instances of damage to components of the environment, usually called “damage to the environment per se.” The deterioration of environment components (pollution of the water, diminution of the fish stocks, change of landscape) also affect values of the environment (use-values, like fishing or wind-surfing, non-use values like aesthetic or other emotional appreciation of the landscape). These could be included within an enlarged concept of environmental damage52 in order to obtain compensation for their loss or decrease. Points (iv) and (v) may be considered as already covered by the existing notions of damage to persons or property (including loss of profit). (d) The Injured Party Subparagraph (a) (iii) of article 2 envisages the issue of so-called “damage to the environment per se.” Since the damage in question is apparently not related in any way to persons or property, a standing is not easy to establish. The environment belongs to everybody in general and no one in particular: it is vital for human beings and communities, like the State, formulate environment protection policies and enforce them for that reason. On the international plane, States have standing to protect the environment within their territory or in places under their jurisdiction or control.53 In internal law, communities and other collective entities also seem to be natural injured parties in the case of so-called “damage to the environment per se” and, consequently, their authorities have been given standing to pursue claims. Standing has been given to public interest groups: under U.S. law, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, the Federal Water Pollution Act (Clean Water Act) of 1977 and the Oil Pollution Act (OPA) of 1990 all grant power to government agencies with

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Loss of service can easily be subject to compensation, whereas it is more difficult to perceive the damage, and even more so to evaluate it, when the loss of a recreational area causes moral inconvenience or frustration. However, the principle that harm which does not entail economic loss should be compensated is not a new absolute in law—as can be seen in domestic and international law’s universal acceptance of compensation for moral injury, which is as difficult to evaluate in monetary terms as ecological harm. On the international plane, the State is the injured party even if damage to the environment affects individuals instead of communities; the State may also be considered the representative of such individuals in international law. The damage caused to the nationals of a State by another State is “mediate damage” caused to the former State.

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management jurisdiction over natural resources to act as trustees to assess and recover damages. The public trust is defined broadly to encompass natural resources belonging to, managed by, held in trust by, appertaining to or otherwise controlled by Federal, State or local governments or Indian tribes.54 (e) The Intrinsic Value of the Environment The damage jurists deal with is a legal concept: damage in law is always damage to somebody (a physical or legal person and, in the last analysis, individual human beings); the use of the word “intrinsic” cannot change that essential legal concept. The so-called “intrinsic” damage or “damage to the environment per se” is, after all, damage to human beings who are affected by the deterioration or destruction of components and values of the environment.55 Differently from the instances in (d) and (e) of our example, where the consequences of the deterioration of the environment components are particular to some people, “damage to the environment per se” has general consequences: it affects collective subjects, like a community or even the State. The expression “damage to the environment per se” makes reference to a damage mainly affecting collective subjects. Article 3, paragraph (b) gives a prominent place to the protection and preservation of the environment and expressly mentions the obligations to mitigate damage and to restore or reinstate the damaged environment, thus putting the accent on the protection of the so-called “environment per se.” The Commentary seems to consider that the environment is, therefore, “a value by itself without having to be seen only in the context of damage to persons and property,”56 but the following passage corrects that reasoning by placing the damage where it belongs, namely: “It reflects the policy to preserve the environment as a valuable resource not only for the benefit of the present generation but also for future generations.” Damage to a valuable resource for the benefit of the present, as well as for future generations is, after all, damage to a group of persons.57 Furthermore, the Commentary adds that: “Damage does not occur in isolation or in a vacuum. It occurs to somebody or something, it may be a person or property.”58 54

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R.B. Stewart, “Liability for Natural Resources Injury: Beyond Tort” in R.L. Revesz and R. Stewart (eds) Analyzing Superfunds, Economics, Science and Law, (1995), 219–247 at 219. It is difficult to understand who could be harmed by the loss of the “intrinsic” values of the environment if there were no human beings on the planet to appreciate them. Id., p. 142. Ibid. Yearbook…2006, p. 124. If something “occurs to something,” it is in fact occurring to somebody: the owner of the thing, the spectator of the landscape, and so on.

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6.4. Reparation Principle 3 of the 2006 articles mentions prompt and adequate compensation. The standard of promptness, as defined in the Commentary, “refers to the procedures that would govern access to justice, and that would influence the time and duration for the rendering of decisions on compensation payable in a given case.”59 Regarding what is “adequate compensation,” reparations for damage under the existent conventions admit thresholds and ceilings for practical reasons and, therefore, the Chorzow factory rule is not strictly followed. However, in order to be as close to that rule as possible, tiers have been added to compensations for damage due to accidents in the nuclear and oil industries. Likewise, the Lugano Convention on activities dangerous to the environment does not set ceilings on compensations. “Adequate” does not mean full compensation. As an example, a lump sum agreed upon may be regarded as adequate compensation60 and: “As long as compensation given is not arbitrary, and grossly disproportionate to the damage actually suffered, even if it is less than full, it can be regarded as adequate. In other words, adequacy is not intended to denote ‘sufficiency’.”61 The concept of “Prompt and adequate compensation” is essential to give full effect to the non-discrimination principle in cases where a local standard is low for residents, and non-residents face treatment below international standards. Harmonizing domestic laws around the concept of “adequate compensation” helps set an international standard that complements the nondiscrimination principle. However, such a harmonization can imply difficulties that the draft intends to avoid. Offering non-resident victims some opportunities for “forum shopping” may be a partial solution, for it widens the selection of applicable laws. Regarding “damage to the environment,” compensation for loss or deterioration of “use and non-use values” is gaining ground in international practice as an element of “adequate compensation.” In its Commentary to article 36(2), the Commission explains that damage to environmental values—such as amenities and the like (i.e., non-use values)—is “as a matter of principle,

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Yearbook ... 2006 cit., pp. 153/154. In the same paragraph, the suggestion is made to establish special national or international environmental courts. “A lump-sum amount of compensation agreed upon as a result of negotiations between the operator or the State of origin and the victims or other concerned States following the consolidation of claims of all the victims of harm may be regarded as an adequate compensation.” Yearbook…2006 cit., p. 154. Id.

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no less real and compensable than damage to property, though it may be difficult to quantify.”62 In the present writer’s opinion, reparation should be used instead of compensation for environmental damage, and, even where liability applies, reparation should follow the Chorzow Factory rule of integral restitution as closely as possible due to the special features of the environment and of the damage inflicted to it by human action. Conventions on civil liability in matters nonenvironmental seem to have ignored certain forms of reparation, such as restitutio naturalis, in order to focus exclusively on the allocation of a sum of money as a primary payment. In environmental damage, however, the most common form of payment seems to be almost the same thing as restitutio naturalis—as represented by the restoration of the damaged elements of the environment, such as reintroducing into an ecosystem members of an endangered or destroyed species which can be restored because enough members of the species exist elsewhere. Equivalent compensation, on the other hand, would primarily be directed, in the case of total destruction of a certain component, to the introduction of an equivalent component, and, only if that were not possible, to an eventual monetary compensation. As interpreted in the cases covered by United States legislation, monetary compensation would also be appropriate when the restoration of a certain component occurs naturally, from the time during which this resource was dying out until its full restoration. The conventions generally stop at compensation for measures of restoration or replacement that have been taken or will be taken; in the latter case, compensation is used to pay for them. What happens in the cases where restoration is impossible or when the costs of restoration are unreasonably high?: The … situation can be illustrated by the example of the Exxon Valdez case, as in this case it was impossible to clean up the oil-polluted seabed of the Gulf of Alaska because of the factual situation, the Exxon Corporation insofar saved the clean-up costs. This seems to be unjust. According to the Guidelines [of the Economic Commission for Europe Task Force on Responsibility and Liability regarding Transboundary Water Pollution], the polluter could perhaps be obliged to grant equivalent compensation, for instance, by replacing fish or by establishing a nature park.63

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Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), p. 252. A. Rest, “New tendencies in environmental responsibility/liability law: the work of the UN/ ECE Task Force on Responsibility and Liability regarding Transboundary Water Pollution,” Environmental Policy and Law, vol. 21, Nos. 3–4 (July 1991), p. 137; quoted in Yearbook … 1992, Vol. II, Part One, p. 72, document A/CN.4/443, Chap. II, Appendix, para. 10.

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This situation had been partially covered in the Sixth Report of the second Special Rapporteur, in paragraph 1 of draft article 24 (Harm to the environment and resulting harm to persons or property),64 providing that “if it is impossible to restore these conditions in full [i.e. the status quo ante], agreement may be reached on compensation monetary or otherwise, by the State of origin for the deterioration suffered.”65 Reinstatement may be considered as a form of restitution as long as it results in the return to the status quo ante; in other cases, “compensation by equivalent” may be considered. If the elements of the natural resources destroyed or impaired were entirely fungible—i.e., in our example above, if the dead fish in the lake were replaced by equivalent fish of the same species—replacing them would fall very close to restitution. Returning to our lake example, if the specimens of fish replaced were not of the same species as the originals, but fulfilled a similar function, this could be considered a form of “compensation by equivalent.” “Equivalent” does not exclusively mean money—although money given as compensation may buy equivalent elements.66 Moreover, the costs of reinstatement and restoration must be reasonable—that is, there should be no disproportion between the costs of such measures and the resulting usefulness. The Commonwealth of Puerto Rico v. SS Zoe Colocotroni case,67 which refers to the oil spill off the coast of Puerto Rico in 1973, was decided in the United States of America by the Court of Appeals, First Circuit. The judgment found that the national legislation provided that the Federal Government and states were authorized to recover costs or expenses incurred in the restoration of natural resources damaged or destroyed as a result of a discharge of oil or a hazardous substance. At first instance, the District Court awarded damages based, inter alia, on the cost of replacing, through biological supply laboratories, the millions of tiny aquatic organisms destroyed by the spill. The Court of Appeals vacated the District Court’s decision in this respect and held that the appropriate primary standard for determining damages in such a case was the cost reasonably to be incurred by the sovereign or its designated agency to restore or rehabilitate the environment in the affected area to its pre-existing

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See Yearbook … 1990, Vol. II, Part One, pp. 105 et seq., Doc. A/CN.4/428, annex. The Convention on the Regulation of Antarctic Mineral Resource Activities adopts a similar solution in article 8, paragraph 2 (a), providing that an “operator shall be strictly liable for damage to the Antarctic environment or dependent or associated ecosystems arising from its Antarctic mineral resource activities, including payment in the event there has been no restoration to the status quo ante.” What is important, in terms of compensation, is that the court determines that these payments must be used for ecological purposes. In some domestic laws, monetary compensation must be applied. U.S. Court of Appeals, 628 F. 2d 652 (1st Cir. 1980).

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condition, or as close thereto as was feasible without grossly disproportionate expenditures. Factors to be taken into account would include technical feasibility, harmful side effects, compatibility with or duplication of such regeneration as was naturally to be expected, and the extent to which efforts beyond a certain point would become either redundant or disproportionately expensive. The Court of Appeals also recognized that there might be circumstances where direct restoration of the affected area would be either physically impossible or so disproportionately expensive that it would not be reasonable to undertake such a remedy.68 The International Fund for Compensation for Oil Pollution Damage— established in the framework of the International Convention on Civil Liability for Oil Pollution Damage —has taken a restrictive position, however. The Fund pays compensation for pollution damage caused outside a ship. The first claim, which arose from the sinking of the Antonio Gramsci near Ventspils, in the former Soviet Union, on 27 February 1979, raised the question of whether this definition included environmental harm or damage to natural resources, as advocated by the Soviet Union and others. The Fund’s assembly considered that the evaluation of the compensation payable by the Fund could not be made on the basis of abstract quantifications of the damage, calculated in accordance with theoretical models.69 In the case of the Patmos, a Greek tanker damaged off the Calabrian coast in 1985, the Fund originally rejected the Government of Italy’s claim on the grounds of a lack of documentation on the nature of the damage or the bases on which the amount of the claim had been calculated. The Government of Italy took the case to the Italian courts; it was rejected in the first instance but accepted on appeal. In 1989, the Messina Appeals Court interpreted the Convention as referring to the environmental damage as everything which alters, causes deterioration in or destroys the environment in whole or in part. The Court held that the environment must be considered as a unitary asset, separate from those assets of which the environment is composed (territory, territorial waters, beaches, fish, etc.); the right to the environment belonged to the State, in its capacity as representative of the collectivities; the damage to the environment harmed immaterial values and consisted of the reduced possibility of using the environment; and the

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The gist of the reasoning of the Appeals Court is also found in an English case, Lodge Holes Colliery Co v. Wednesbury Corporation, regarding the restoration of a road to its former level, made at great cost by the local authorities (1908) AC Wednesbury 323. It should be noted that the U.S.S.R. had assessed the damage in accordance with an abstract model. See Maria Clara Maffei, “The compensation for ecological damage in the Patmos case,” International Responsibility for Environmental Harm, Francesco Francioni and T. Scovazzi, eds., pp. 381-394.

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damage could be compensated on an equitable basis, which must be established by the Court on the grounds of an opinion of experts. The Court held that the definition of “pollution damage”—as set in article 1, paragraph 6, of the International Convention on Civil Liability for Oil Pollution Damage —was wide enough to include damage to the environment of the kind described above. The difficulty lies in knowing whether a competent court should lean towards compensation of the directly quantifiable damages, such as restoration costs, or use abstract theoretical models to quantify the loss caused by environmental damage. The norms of international law are not fully developed in this regard, nor are national norms. In the United States of America, restoration of damaged environment has been described as a fledgling activity shot through with uncertainty and controversy. Alternative methods of assessment include: the market price of the environmental resource; the economic value attributed to the environmental resource (such as landscape costing methods or “hedonic” pricing, as discussed below); or contingent assessment methods to measure the willingness of individuals to pay for environmental assets (such as clean air or water or the preservation of endangered species). These problems of assessment arise in the United States with respect to the Comprehensive Environmental Response, Compensation and Liability Acts and the Oil Pollution Act in relation to the competence of certain public authorities to bring an action for damage to natural resources caused by the introduction of hazardous substances or the spilling of oil, respectively. As a market price may not exist, or may not reflect the real value of the resource (for example, in the case of endangered species), some economists have tried to calculate the use value of certain public natural resources (i.e., the value based on the actual use of a resource, for example, for fishing) using the cost of travel or the hedonic price. Travel-cost methods use the amounts spent by individuals to visit and enjoy resources as a basis for the calculation. Hedonic-pricing methods take the market value added to the value of private ownership of certain amenities and seek to transpose these values to public resources with comparable values. For “non-use values”—such as the value an individual may place on the preservation of an endangered species, although the species may never actually be seen—a contingent valuation (CV) methodology has been developed to measure the value by asking persons how much they would be willing to pay—for example, through a tax increase—to protect a natural resource from harm. Critics of this methodology suggest that a method which does not reflect a real economic behavior and which gives inflated values for the society cannot be reduced to what a group of individuals is willing to pay.

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It is easy to understand, in view of the difficulties of the alternative assessment methods discussed above, the reluctance of some law courts in international practice to limit reparation of environmental damage to the payment of costs of restoration, the replacement of damaged or destroyed resources or the introduction of equivalent resources where the court deems this to be reasonable. The quantification of costs provided by contingent valuation methodologies is somewhat unreliable and perhaps inappropriate for a draft that aspires to become a global convention, with courts that are part of different cultures having such disparate attitudes towards the environment. However, if restoration or replacement of resources cannot be partially or fully accomplished, and real harm to the environment has occurred, it does not seem reasonable for the damage to be totally uncompensated. Notwithstanding the above difficulties, the decision in State of Ohio vs. Department of Interior70 was favorable to the acceptance of new valuation methodologies when the injured resource is not traded in the market. The contingent valuation (CV) process “includes all techniques that set up hypothetical markets to elicit an individual’s economic valuation of a natural resource.”71 It involves interviews with different persons who are asked about the values they attach to certain resources (for instance, how much they would pay for the resource). “CV methodology thus enables ascertainment of individually-expressed values for different levels of quality of resources, and dollar values of individuals’ changes in well-being.”72 It also serves to determine “option values”73 and “existence values.”74 In the aforementioned case, the U.S. Court of Appeals was of the opinion that: “Option and existence values may represent ‘passive’ use, but they nonetheless reflect utility derived by humans from a resource, and thus, prima facie, ought to be included in a damage assessment.”75

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U.S. Court of Appeals, District of Columbia Circuit, September 11, 1989, No. 86–1529. Id., para. 198. Ibid. Option value is the amount of money a person is willing to pay to reserve the option to use that resource in the future. That person may not be currently using the resource, yet may place some value on its preservation in its present state in the event of a later change of mind. Existence value is the amount of money a person is willing to pay although he does not plan to use the resource, either at present or in the future. That willingness may be due, inter alia, to a philanthropic or patriotic feeling (e.g., keeping the resource for enjoyment of others, pride of having such a resource in one’s country, etc.). The Court (para. 198) quotes F.B.Cross, “Natural Resource Damage Valuation”, 42 Vand.L.Rev. 269, 285–89 (1989).

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In proceedings of a UNCC76 panel regarding the “F4”77 group of claims, it was debated whether or not pure environmental damage could be compensable. The panel declared pure environmental damage compensable on the basis of paragraph 16 of Security Council resolution 687 (1991): it had to be “a direct result of Iraq’s invasion and occupation of Kuwait,” whether or not it had commercial value and whether or not the loss was temporary or permanent.78 Furthermore, the exclusion of compensation for pure environmental damage in some international conventions on civil liability was not considered by the UNCC panel as giving a valid basis for the assertion that international law, in general, prohibits compensation for such damage when it results from an internationally wrongful act.79 6.5. Paragraphs (iv) and (v) Paragraphs (iv) and (v) include “recent concepts,”80 like the cost of reasonable measures aiming to “assess, reinstate, or restore damaged or destroyed components of the environment or where this is not possible, to introduce, where appropriate, the equivalent of these components into the environment.”81 Recent treaty practice has tended to acknowledge the importance of such measures but has left it to domestic law to indicate who may be entitled to take such measures. Such measures include any reasonable measures taken by any person including public authorities, following the occurrence of the transboundary damage, to prevent, minimize or mitigate possible loss or damage or to arrange for environmental clean-up.82

As we have already said, perhaps the moment for taking such measures was not “following the occurrence of transboundary damage,” but “following the incident” because it may well happen that before the effects of an incident

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United Nations Compensations Commission. Claims by governments and international organizations regarding government property and the environment. Fifth installment F4 report, para. 55-57. Fifth installment F4 report, paras. 45-51. The ILC 2001 Articles on responsibility, article 36(2), states, with respect to the scope of compensation as a remedy: “The compensation shall cover any financially assessable damage. …” Report of the International Law Commission on the Work of Its Fifty-third Session Doc. A/56/10 (2001), p. 43. The ILC Commentaries to article 36(2) explain, “The qualification ‘financially assessable’ is intended to exclude compensation for what is sometimes referred to as ‘moral damage’ to a State”. Ibid., p. 244. Commentary, Yearbook…2006, in note 58, at p. 130. Id., p. 131. Id., p. 131/132.

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reach the territory of the affected State, measures may be taken “to prevent, minimize or mitigate possible loss or damage.” Such measures are, then, expost measures of prevention. Also, the measures of response must be “reasonable,” according to subparagraph (v). 6.6. The Core Principles Principles 3 to 6 and 8 are the core of the proposed articles, as concerns compensation. Article 3 sets the purposes and principles of the draft articles presented by the Commission. Two limits are fixed to compensation in the Commentary: namely that, (a) “damages awarded should not have a punitive function” and (b) “the victim can only be compensated for the loss suffered but cannot expect to financially gain from the harm caused.” Also, some general principles are set out as declared by the International Court of Justice and other international tribunals.83 In any case, the operator should not be allowed to engage in risk-bearing hazardous activities without expecting to pay for damage caused. Paying for damages would provide an incentive to exercise utmost care and due diligence to prevent damage.84 Under the subtitle “Purposes,” Principle 3 proclaims that one of the two purposes of the draft articles was to ensure prompt and adequate compensation to victims of transboundary damage.85

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“(a) [F]inancially assessable damage, that is, damage quantifiable in monetary terms is compensable; (b) this includes damage suffered by the State to its property, or personnel or in respect of expenditures reasonably incurred to remedy or mitigate damage; as well as damage suffered by natural or legal persons, both nationals and those who are resident and suffered injury on its territory; (c) the particular circumstances of the case, the content of the obligation breached, the assessment of reasonableness of measures undertaken by parties in respect of the damage caused, and finally, consideration of equity and mutual accommodation. These factors will determine the terms or heads against which precise sums of compensation would be payable.” Id., p. 150. Id., p. 149. See also n. 407. The other one is “to preserve and protect the environment in the event of transboundary damage, especially with respect to mitigation of damage to the environment and its restoration or reinstatement.” The Commentary acknowledges other objectives—such as providing incentives to the operator and other relevant persons or entities to prevent transboundary damage from hazardous activities, resolving disputes among States concerning transboundary damage in a peaceful manner that promotes friendly relations among States, preserving and promoting the viability of economic activities that are important to the welfare of States and peoples and providing compensation in a manner that is predictable, equitable, expeditious and cost effective. Id., p. 144. point 10.

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Some of the classic arguments are mentioned in the Commentary to underline the importance of sine delicto liability for ensuring protection to victims of transboundary damage and protecting them from having to bear loss or injury. The Trail Smelter and Corfu Channel decisions, as well as of Principles 21 and 22 of the Stockholm Declaration and Principle 13 of the Rio Declaration were recalled, all of them subject to the caveat that: “While the principles in these Declarations are not intended to give rise to legally binding obligations, they demonstrate aspirations and preferences of the international community.”86 The Commentary finds that the “polluter pays” principle—the purpose of which is “cost internalization”—is the foundation of the “prompt and adequate compensation” principle. After extensive considerations, the Commentary concludes that it is not a principle of positive international law, but simply aims to ensure the effective functions relevant to a liability regime,87 and that it tends to prevent Governments from distorting the costs of international trade and investment by subsidizing environmental costs. Many of the arguments in the Commentary tend to strengthen the idea that the core principles are, indeed, emerging principles of international law—a conviction that is reflected in the following paragraph: These principles all reflect more recent developments in international law and State practice; their present status as principles of general international law is more questionable; but the evidence of consensus support provided by the Rio Declaration is an important indication of their emerging legal significance.88

This being so, the principles contained in the following articles should have merited a more positive pronouncement from the ILC in order to comply with its mission of developing international law in the field according to Article 13 of the Rio Declaration and Articles 21 and 22 of the Stockholm Declaration. Indeed: The one condition missing from the 2001 articles is that states make provision for liability or compensation in the event of foreseeable transboundary damage. If the present draft principles on liability are adopted as drafted, states will be free to engage in harmful activities without any obligation to provide effective remedies or redress for transboundary damage unless they are themselves at fault.

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Id., pp. 141/142. Namely, compensation, distribution of losses, allocation of risks, punishment, corrective justice, vindication or satisfaction, and deterrence and prevention. Birnie and Boyle, International Law and the Environment, Oxford University Press, 2002, 2nd Ed. at p. 105.

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That is exactly the defect which the Commission was invited to rectify when it began work on the topic in 1978.89

The “soft” obligation language used in the Commission’s articles is doubly unjustified in the sense that the formulation of the draft principles as a coherent set of standards of conduct and practice was the main objective of the Commission, and not that of identifying the current status of the various aspects of the draft principles in customary international law. That should have been sufficient to guarantee the neutrality of the Commission as to the legal nature of the principles. Principle 4 deals with measures that States should take in order to insure “prompt and adequate compensation.” These measures should include: nofault liability, channeling of that liability to the operator or other suitable person or entity and the obligation of such likely liable persons or entities to establish sufficient financial security to cover claims of compensation. If appropriate, the establishment of industry-wide funds at the national level should also be required and, if necessary, the State of origin should also insure the availability of additional financial resources, among them State funds, not mentioned in the text of the article. 6.7. Response Measures The Commission was always uncomfortable with calling ex-post measures “preventive” and eventually called them “response measures.” Response measures are, in effect, ex-post prevention, but they are also restitution. They are ex-post prevention in that they have as one of their purposes to prevent damage from spreading after an incident has occurred—for instance by felling trees in, and clearing, a strip of woodland in order to prevent fire from spreading to a neighboring country—but they are, in part, restitution because they contribute to restoring damaged goods to their status quo ante. Clean-up measures—for example, in the case of an international river—re-establish the conditions prevailing prior to an incident, at the same time preventing the river current from carrying the rest of the pollution resulting from an incident to a neighboring country. In some circumstances, response measures may be taken by the State of origin itself 90 or by private parties. Possibly, however, the affected State will

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A. Boyle, “Globalizing Environmental Liability: the Interplay of National and International Law,” Journal on Environmental Law, 2005, Vol. 17, Number 1, p. 25. If necessary, in some cases, the State will use firefighters or the army to deal with consequences of an incident that threaten to spread to a neighboring country—as in the case of a forest fire resulting from an industrial accident.

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take identical measures in its own territory and thus manage to avoid greater damage; or, private parties in either State will take such measures on their own initiative. In such cases, the party that is ultimately liable and must pay the corresponding compensation must also bear the cost of such measures, whereby response measures used to refer to ex-post prevention as becoming part of compensation. 6.8. International and Domestic Remedies Principle 6 takes care of this important aspect of liability by dealing with procedural standards—including equal access to justice, availability of legal remedies and enforcement of decisions, judicial or arbitral. The principle of “non-discriminatory access to justice by the State of origin to residents of the affected State on the same basis as its own nationals or residents”91 has procedural but also substantive elements: if nationals themselves are not provided with substantive standards of an international level, the principle would not grant such minimum standards to foreign victims of the transboundary damage.92 Paragraph 3 of Principle 6, which reads: “Paragraphs 1 and 2 are without prejudice to the right of the victims to seek remedies other than those available in the State of origin” is interpreted by the Commentary as making available a forum which may be considered more appropriate than that of the domicile of the operator—such as, for instance, “the forum of the State where an act or omission causing injury took place or where the damage arose.”93 The provision of such a choice is considered to be based on “a trend now firmly established in both Conventions on international jurisdiction and in national systems.”94

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The Commentary says that “this is an aspect which is gaining increasing acceptance in State practice,” Id., p. 175. The Commentary notes that: “A number of States are in the process of developing the minimum substantive standards as part of their national law and procedures.” Id., p. 151. This is a situation favoring victims from developing States litigating in developed States (whence pollution is generally expected to be exported), as these have generally more strict—or more strictly enforced—environmental laws. Id., p. 175. “Under the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters remedies may be made available only in the jurisdiction of a party where: (a) the act or omission causing injury took place; (b) the damage was suffered; (c) the operator has his domicile or her habitual residence; or (d) the operator has his or her

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As regards the choice of law, the Commentary states that international practice is not uniform: “different jurisdictions have adopted either the law that is most favorable to the victim or the law of the place which has the most significant relationship with the event and the parties.”95 Paragraph 4 deals with international procedures for claims settlements— such as negotiations between States as to the quantum of compensation payable for transboundary damage, or the intervention of a mixed claims commission, or even of a national claims procedure of the affected State, etc. The United Nations Compensation Commission and the Iran-United States Claims Tribunal were cited in the Commentary as useful models for some of the procedures envisaged under paragraph 4.96 The Commentary concludes that the experience of different cases shows that both States and concerned entities representing the victims must get involved to settle claims out of court or the victims must be given equal or non-discriminatory right-of-access to civil law remedies.97 Principle 6 deals with access to information, a principle which is evolving but is not yet universally applied. It is important for the correct functioning of paragraphs 1, 2 and 3 and is contained in several instruments.98 The recognition and enforcement of foreign judgments and arbitral awards is essential to the effective fulfillment of decisions when the defendant has his assets in a jurisdiction different from that where the decision was rendered. Usually, there are domestic law exceptions to the enforcement of such foreign decisions—such as fraud, no fair trial, public policy or irreconcilability with earlier decisions.99 The question of recognition and enforcement of such decisions would be “implicated” in the present draft principles.100

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principal place of business.” Id., p. 176. Article 19 of the 1993 Lugano Convention, article 17 of the Basel Protocol, and article 13 of Kiev Protocol provide for similar choice of forum. Id., p. 176. Id., pp. 176-7. Id., p. 178. Instruments such as those cited in Note 477, namely the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998, which is in force since 30 October 2001, the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic (article 9), the 1993 Lugano Convention on Environmental Liability (articles 15 and 16), the 1995 UN/ECE Sofia Guidelines on access to information and public participation in environmental decisionmaking (articles 4 and 5); the EU Council/Parliament Directive 2003/4/EC of 28 January 2003. Id., p. 179. Id., p. 180. Ibid.

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6.9. “Should”s and “shall”s Criticism on the use of soft law obligations for core principles of the 2006 articles is, in the present writer’s opinion, entirely justified.101 The Commission uses “shall” interspersed in the texts of some of the principles without explaining the reason for such use. A partial explanation may be found in point 44 of the Third Report of the Special Rapporteur. “Given this reality, it seems appropriate, in the view of the Special Rapporteur, to confirm that the end-product of the topic on allocation of loss be cast in the form of draft principles. However, the Commission may give some serious consideration to reflecting the basic obligation on the duty to pay compensation and the right to seek remedies in language that is more prescriptive.”102

The result seems to be this mixture of “shall”s and “should”s. In all five paragraphs of Article 4, referring to “prompt and adequate compensation” contrary to the Special Rapporteur’s recommendation, “should” is used, but not in Article 5, where “shall” is employed in paragraphs (a) (prompt notification to States affected or likely to be affected by an incident); (b) (response measures) and (d) (obligation of States affected or likely to be affected by the transboundary damage). Notification is an ex-ante prevention obligation, and as such it may be considered a “hard” obligation, but response measures, as far as they effect a return to the status quo ante are in part restitution—i.e., an aspect of reparation which thus seems to be smuggled into the world of positive international law. In any case, obligations of ex-post prevention in the other “shall” paragraphs got a passport to compulsiveness by the fact that ex-post prevention is, after all, prevention. But that is not precisely what the Commission thought of it, since the Commission preferred to reserve the name “prevention” for ex-ante measures. In Article 6, paragraph one, “shall” reappears (obligation of States to provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensure that these bodies have prompt, adequate and effective remedies available in the case of transboundary damage, etc). Principle 8, in its second paragraph, also refers to the principle of nondiscrimination “The present draft principles and the measures adopted to implement them shall be applied without discrimination, etc. (Emphasis

101 102

Cf. Alan Boyle, op.cit., n. 88, pp. 17/20. Doc. A/CN.4/566, p. 27.

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added)]. Access to justice for residents of an affected State on the same basis as nationals or residents merits only a “should,” although it is “gaining increasing acceptance in State practice” [Commentary to Art. 6 (2)]. 6.10. Development of Specific International Regimes In some cases, and in respect to certain categories of hazardous activities, it may be useful to enter into specific global, regional or bilateral agreements among States to provide funding for compensation, response measures and international and domestic remedies. Internationally provided funds would supplement or replace national industry based funds. Principle 7 encourages that possibility, particularly if the operator is short of financial resources to cover compensations. Regional arrangements of this type are likely to be more effective and durable in the protection of the subjects of the States concerned—and of their environment and natural resources and such arrangements, as well as other types of multilateral or bilateral agreements—were proclaimed as one of the most important objectives of the articles from the very inception of the topic.103 6.11. Implementation Implementation is the matter of Principle 8: each State should adopt the necessary legislative, regulatory and administrative measures to implement the present draft principles, as reads Paragraph 1 of article 8. But the second paragraph introduces a real principle (“shall”) into the scope of the article: that of non-discrimination, “such as that based on nationality, domicile or residence.” And paragraph 3 recommends (“should”) the application of another principle—namely, that of cooperation to implement the present draft principles. The article enhances the role of national legislation in the functioning of all the other principles. The application of the non-discrimination principle refers to “any” discrimination and not only to those mentioned in the text: they are only examples. Paragraph 3 is modeled on article 8 of the Kiev Protocol. The Commentary underscores that the importance of implementation mechanisms “cannot be overemphasized.”104

103 104

Id., p. 181. Id., p. 182.

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7. Present Status of Both “Prevention of Transboundary Harm from Hazardous Activities” and “Allocation of Loss in the Case of Such Harm” In 2001, the Commission, upon completion of the prevention topic, sent its report to the General Assembly for consideration and recommended the elaboration of a convention based on the draft articles.105 In 2006, the Commission adopted the draft principles on the allocation of loss106 and recommended that the General Assembly endorse them and urge States to take national and international action to implement them. The General Assembly took note of the principles and commended them to the attention of Governments. It also decided to include, in the sixty-second session, a provisional agenda item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm.”107 At the moment these lines were written, the General Assembly, by Resolution A/C.6/62/L.19 of November 9, 2007, (point 3) “commends the articles on prevention of transboundary harm from hazardous activities, presented by the Commission, to the attention of Governments, without prejudice to any future action as recommended by the Commission regarding the articles.” The same Resolution, in its point 4, “commends once again the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, presented by the Commission, the text of which was annexed to General Assembly resolution 61/36 of 4 December 2006, to the attention of Governments, without prejudice to any future action as recommended by the Commission regarding the principles.” Governments were invited, in point 5, to “submit comments on any future action, in particular on the form of the respective articles and principles, bearing in mind the recommendations made by the Commission in that regard, including in relation to the elaboration of a convention on the basis of the draft articles, as well as on any practice in relation to the application of the articles and principles;” and the decision was taken, in point 6, “to include in the provisional agenda of its sixty-fifth session an item entitled ‘Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm.’ ”

105 106 107

Doc. A/56/10 and Corr. 1. Doc. A/61/10, Chapter V ( E). (A/Res/61/36).

Chapter VIII

Conclusions 1. The Issue For more than thirty years now, the International Law Commission has been examining the topic of liability for injurious consequences of acts not prohibited by international law. We believe that the efforts have been worthwhile and necessary. It was the eruption of risk brought about by modern technologies which impelled jurists and legislators to create special regimes of liability in domestic legal systems. Those regimes are no longer new; they have been accepted in national societies for more than a century—not to mention the antecedents of Roman law regarding, for instance, the liability imposed on keepers of wild beasts. Change occurs at a slower pace on the international plane; States and international lawyers are more conservative, national sovereignty and the decentralized character of the international community make legal developments slow and difficult. In the International Law Commission, the statement that no compensation was due—unless imposed by a treaty—for transboundary damages caused by a non–prohibited activity, was heard several times. Technically speaking, it may be true that no specific norm of general international law imposes the obligation to compensate for transboundary damage caused by a non-prohibited hazardous activity. However, not to compensate for such damage violates basic principles of the law of Nations—among them, none other than territorial sovereignty and the sovereign equality of States. That may be implied by the celebrated dictum of Judge Huber,1 as well as by

1

“Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 153–160. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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the well-known passage of the Trail Smelter decision (in the quotation from Eagleton), and that is surely how to explain some ex-gratia payments otherwise hard to explain. Unjust enrichment, unjust expropriation of amenities, unjust damage caused on innocent victims, breach of a sensible balance of interests, also underpin the obligation to compensate.2 The norm imposing compensation for damage caused by hazardous activities, as a logically necessary corollary of existing and capital principles of international law, is more than an emerging principle; it is an existing principle of law not being applied. There is a stumbling block in the way of that principle becoming a customary rule of international law: a significant group of States opposes giving it the official birth certificate. Without general acceptance, there is no possible legal custom. 2. Risk Risk is behind and underneath instances of accountability in law other than regarding hazardous activities: negligent or reckless conduct is also the object of legal response. Creating a risk through such conducts may even be the object of penal sanctions—whether or not damage ensues. A warship exercises the right of visit “at its own risk”; in the hypothesis of Article 110 of United Nations Convention on the Law of the Sea (UNCLOS), an imminent risk of armed attack may (arguably) give rise to preventive self-defense or create a state of necessity. A risk-creating conduct is always close to wrongfulness: it has been said that hazardous activities, because of the risk they imply, belong in a grey zone between lawfulness and unlawfulness. Risk in relation with a human activity means that harm may occur, but also that it may not. The possibility that it occurs triggers the neminem laedere principle: a State has no right to cause harm to other States, as said in the Trail Smelter and Corfu Channel decisions. Why should a State be permitted to conduct an activity in its territory that may cause harm to other States? The active element of territorial sovereignty of a State (to do whatever it pleases in its territory) is limited by the right to territorial integrity of other States—that

2

points the minimum of protection of which international law is the guardian.” The Island of Palmas case (or Miangas) United States of America vs. The Netherlands, UNRRIA, Vol. II, 1928, p. 860. The commentary to article 3 adds principle 10 of the Rio Declaration and article 235 (2) of the 1982 United Nations, Convention on the Law of the Sea, in article 2(1) of the 1996 Helsinki articles on international watercourses, prepared by the International Law Association, and in human rights law precedents in support of prompt and adequate compensation to victims. See Doc. A/61/10, pp. 140/145.

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is, by the passive element of territorial sovereignty: no Harmon doctrine is acceptable in this field. But again, risk is not equivalent to damage. If a hazardous activity is socially useful, or common to most countries, the activity may be permitted. Riskbearers must suffer the existence of risky or hazardous activities with social benefits. But risk, even though not equivalent to damage, still presents possible damage. That contingency must be balanced with something on the other side of the scale. Surely, “prevention” is one necessary element on that side of the balance, but prevention is not enough. It is admitted that even the most diligent prevention leaves a margin of possible harm in technologically complicated activities. The preamble of the Principles proposed by the ILC states that: “incidents involving hazardous activities may occur despite compliance by the relevant State with its obligations concerning prevention of transboundary harm from hazardous activities.”3 Risk is what is left once measures of prevention have been completed; that is the real risk. If prevention were enough to completely avoid incidents, there would be no risk and hazardous activities would not be hazardous. Something more is, therefore necessary: namely, compensation in an amount sufficient to re-establish the altered balance. That is the gist of the risk-benefit doctrine prevailing in domestic legal systems and it explains why sine delicto liability is the legal technique more consonant with that doctrine. Responsibility requires a wrongful conduct to function: hazardous activities are lawful. On the other hand, it is also incorrect to state that what is wrongful is to cause transboundary damage, because not all transboundary damage is wrongful in international law. These doctrinal positions would have to make explicit something implicit in their reasoning: namely, that which makes damage wrongful is the fact that it is caused by an activity involving risk. But it is logically unacceptable to say that causing transboundary damage makes the act which caused it change from “lawful” to “wrongful.” In general terms, it is contradictory to permit “risk” and prohibit “damage” in the same activity. Results equivalent to those obtained by liability could be achieved by other legal techniques—for instance, considering any damage caused by a hazardous activity as a breach of prevention obligations and therefore a wrongful act. Naturally, prevention should be proportional to the risk of the activity, but within the limits of what is reasonable. “Reasonability” is an unwritten guarantee, both in international and in domestic law. As a result, due diligence is not the appropriate tool to use regarding obligations of result: its inner essence would be denaturalized.

3

Doc. A/61/10, p. 106.

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Other possibilities include reversing the onus probandi or establishing a strict primary obligation not to cause transboundary damage. However, in the first case, compensation may not be prompt if the defendant chooses to prove the absence of fault and, anyway, the issue of fault in technologically complicated activities has long been discarded due to the difficulty of proving its existence—or inexistence. As to the latter case, the strict primary obligation not to cause damage, it would fall into the same contradiction of permitting the risk but not permitting the damage. Responsibility, either by imposing an artificial concept of due diligence or by creating a violation through a permitted act, leads us to a conceptual contradiction. The only correct conceptualization of what happens, in reality, is the acceptance of risk only if its adverse results are compensated for—a line of reasoning in which damage and compensation are both in the primary obligation. In any case, it is difficult to see the difference, in practical results, between liability sine delicto and a form of strict responsibility imposed by secondary obligation: compensation would be payable in every case.4 Would States now reluctant to support liability be more amenable to other ways to conceptualize the same results? In fact, the difference between one solution and the other is that the mechanisms of liability sine delicto work much better—as backed by its long experience in the domestic law of many countries. 3. The Role of the State in the Management of Risk In managing risk, international practice shows that States have not limited themselves to prevention: they have also been concerned about compensation for transboundary damage caused by activities within their jurisdiction or control. From the analysis of the conventions examined in previous chapters, one conclusion seems evident: even if liability is placed on the operator or another private party5 considered in the best position to fulfill the objectives of the convention, the State maintains a very important role. The State is obliged to other State members to grant non-resident victims access to its courts on an equal footing as its nationals. The State is also obliged to give its courts the necessary jurisdiction and competence to try cases of transboundary damage and have remedies for non-resident victims as prompt and effective as those for its nationals, to impose the obligation on operators or other responsible parties to take on insurance and sometimes even to remain a subsidiary responsible for at least part of the sums to be paid as 4 5

Naturally, with exceptions in both kinds of liability. With the known exception of the convention on objects launched to the space.

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compensation (as in nuclear and oil conventions, for instance). In other words, the State is obliged to create the conditions—substantive and procedural—for the victims to have a prompt and adequate compensation. International practice, other than that of treaties, repeats some traits of the same scheme. In spite of the variety of solutions for each individual case, one point is clear: namely, that practically no case of transboundary damage caused by a hazardous activity was left unanswered and the State intervened in many of them by making ex-gratia payments—the meaning of which, we suggested, was indicative of their real opinio juris. One conclusion from that practice is that States are not unconcerned about claims for transboundary damage. Moreover, treaty practice shows that States generally consider it more just to have primary liability fall on those persons within their jurisdiction who benefit from the activity and have the most effective control of the risk at the time of the accident. We have seen, however, that States have gone even further than that: in some conventions, States have assumed the obligation of paying part of the compensations due with public funds and, in the practice other than that of treaties, States have made quite a few ex-gratia payments. Even where States were not operators, they may have acted almost as guarantors for the persons or entities conducting the activities under their jurisdiction or control—a role which is not alien to the general functions of States in international relations. Huber’s famed dictum, quoted above, also gives eloquent support for this role.6 It is not, then, far-fetched to equate the concern of States with their perceived obligations to ensure compensation is paid to foreign victims—an obligation which is reflected in the conventions, timidly codified in articles 4 to 6 of the 2006 articles of the ILC and backed by all the precedents quoted by the ILC and recalled in point 8.1 above.7 If that is so, obligations here would exist on two different planes. One level of obligations links victims directly with the operators or other liable private parties for the compensation of damages. The other links States to other States regarding the taking of all the necessary measures—those of articles 4 and 6 of the 2006 articles—to ensure that compensation is available for such victims. If the word “ensuring” is interpreted as subject to a test of “reasonability”— as most words in law are—then, the obligation of ensuring the availability of compensation is not an obligation of result: liability is imposed on the 6 7

See n. 1. By transferring liability to operators or other private parties, States have not abandoned their real role in those conventions: that transfer is more compatible with a sense of justice and besides States take upon themselves the obligations that make possible prompt and adequate compensation for victims.

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operator or, where appropriate, on other person or entity, but not on the State. Hence, there would be no State liability, but State responsibility for wrongful acts if the State fails to take the necessary measures to ensure the payment of compensation or does not fulfill its prevention obligations. Moreover, it would be a due diligence obligation, subject to the normal causes of “exclusion of responsibility” in the Commission’s 2001 articles. Thus, loss is wisely allocated. 4. The Balance of Interests Test The need to balance the interests of States concerned with a hazardous activity is present in different stages of the development of such activity. The sole creation of a risk of transboundary harm brings about a situation where the sovereign equality of those States is somewhat disrupted: one is a risk-creator and the others are risk-bearers, subject to the probability of transboundary harm taking place as the foreseeable consequence of the activity. “Risk,” as an element in the equation of interests, should not be underestimated: its counterbalancing element is “prevention,” with the help of cooperation between the concerned States. A conventional regime arrived at by the Parties’ consent restores balance to the tipped scale—the threshold of risk being a concession to the growing interdependence in the modern world. Good-neighborliness demands mutual tolerance. If damage does occur, the balance of interests requires compensation. Here, the model to follow should perhaps be the Chorzow Factory standard, but the irrelevance of fault together with the social interest in keeping the economic viability of the hazardous activity makes for some flexibility and justifies, up to a certain point, the ceilings sometimes imposed on compensations. Some say that innocent victims should not bear, by themselves, the burden of damages. The justification of the ceilings, however, is not only the good enshrined in a social interest, but also the fact the damaged State may also benefit from the hazardous activity8 and be in favor of its continuance. 8

The activity may also bring benefits to those States, although the damage inflicted individually on them may be much greater than those benefits. It is also possible that the activity in question is developed in all the States concerned in which case considerations other than the strict application of the Chorzow standard may be attended to. As an example, the transport of oil in enormous tankers makes possible the efficient transportation and distribution of oil and perhaps contributes to lowering its price; that benefits all States. But if the oil contained in a big tanker spills in the sea spoiling extensions of the territorial sea and the coastline of a particular State, obviously the damage to that State will be more extensive than the benefits received. So, compensation may arguably not correspond exactly to the extension of the

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In any case, layers of compensation have been added to the funds set out in the nuclear and oil industries—the levels of compensation having also been considerably increased. Still, such funds may be incapable of coping with catastrophic damages. At the same time, these funds will undoubtedly allow for more adequate compensations and the Commission’s 2006 articles recommend their establishment in future agreements. 5. The Articles of the International Law Commission The scheme of the articles on “allocation of loss” follows the general lines of treaty as well as other international practice. As pointed out by some writers,9 principle 3 regarding “prompt and adequate compensation” is the core principle, articles 4 and 6 complement it. Article 4.1 sets out the obligation for States of origin to take all necessary measures to ensure that “prompt and adequate compensation” is available for victims. These measures must be taken independently of any harm yet occurring: States must enact the laws and other legal norms necessary for imposing liability on the terms of article 4.2, requiring of the persons or entities eventually liable appropriate financial guarantees (article 4.3), providing their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensuring that these bodies have prompt, adequate and effective remedies available in the event of transboundary damage occurring (article 6.1), giving victims of transboundary damage access to remedies that are no less prompt, adequate and effective than those available to victims that suffer damage from the same incident within the territory of that State (article 6.2).10 These provisions encompass the basic principles needed by a sensible system of responsibility and liability regulating hazardous activities. Together with the rest of the articles and with those already proposed on prevention, they articulate a system of risk management that could serve the international community at least for a time—until, perhaps, more perfect and wider areas of agreement may be reached.

9 10

damage. But it is also possible that the affected State does not benefit at all from the dangerous activity under the jurisdiction of the State of origin, in which case the above considerations are not valid. For example, Alan Boyle, op.cit., pp. 17/20. It is a pity that, due to a series of difficulties, the tenth report of the second Special Rapporteur could never be seriously considered by the Commission, because all the elements for a solution like the one arrived at by the Commission were there. It certainly was over-prescriptive but it could have been simplified and some “shoulds” also distributed, if necessary, in the texts.

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6. Parting Thoughts The present writer shares the criticisms made of the 2006 articles for setting their core principle as simple recommendations. This weakens the articles and even may imply a setback in relation to existing law. However, the present writer’s own 12-year experience as Special Rapporteur on the topic reminds him how difficult it was to reach any agreement on what was precisely the core of the subject. The consensus arrived at this time in the Commission, feeble as it is, signals progress compared to a decade before, when a serious attack was launched against “liability” continuing to be part of the topic. At least, the ILC managed to keep the subject alive then and now—and that is to its credit.11

11

And to the credit of Mr Srenivassa Rao and his solid and pragmatically-oriented reports.

Annex I

Schematic Outline* Section 1 1. Scopea Activities within the territory or control of a State which give rise or may give riseb to loss or injury to persons or things within the territory or control of another State. [NOTES. (1) It is a matter for later review whether this provision needs to be supplemented or adapted when the operative provisions have been drafted and considered in relation to matters other than losses or injuries arising out of the physical use of the environment. (2) Compare this provision, in particular, with the provision contained in section 4, article 1.] 2. Definitions (a) “Acting State” and “affected State” have meanings corresponding to the terms of the provision describing the scope. (b) “Activity” includes any human activity.c [NOTE. Should “activity” also include a lack of activity to remove a natural danger which gives rise or may give rise to loss or injury to another State?]d (c) “Loss or injury” means any loss or injury, whether to the property of a State, or to any person or thing within the territory or control of a State.e (d) “Territory or control” includes, in relation to places not within the territory of the acting State, (i) any activity which takes place within the substantial control of that State; and * Reproduced without change from the text initially submitted in the third report. The principal changes subsequently made by the Special Rapporteur are indicated in paras. 63 and 64 above. The footnote references are to paragraphs of the third report. a See paras. 46–48. b See para. 35. c See paras. 36–39. d See para. 42. e See paras. 27 and 34–35. Julio Barboza, The Environment, Risk and Liability in International Law, pp. 161–167. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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(ii) any activity conducted on ships or aircraft of the acting State, or by nationals of the acting State, and not within the territory or control of any other State, otherwise than by reason of the presence within that territory of a ship in course of innocent passage, or of an aircraft in authorized overflight.f 3. Saving Nothing contained in these articles shall affect any right or obligation arising independently of these articles.g Section 2 1. When an activity taking place within its territory or control gives or may give rise to loss or injury to persons or things within the territory or control of another State, the acting State has a duty to provide the affected State with all relevant and available information, including a specific indication of the kinds and degrees of loss or injury that it considers to be foreseeable, and the remedial measures it proposes.h 2. When a State has reason to believe that persons or things within its territory or control are being or may be subjected to loss or injury by an activity taking place within the territory or control of another State, the affected State may so inform the acting State, giving as far as its means of knowledge will permit, a specific indication of the kinds and degrees of loss or injury that it considers to be foreseeable; and the acting State has thereupon a duty to provide all relevant and available information, including a specific indication of the kinds and degrees of loss or injury that it considers to be foreseeable, and the remedial measures it proposes. 3. If, for reasons of national or industrial security, the acting State considers it necessary to withhold any relevant information that would otherwise be available, it must inform the affected State that information is being withheld. In any case, reasons of national or industrial security cannot justify failure to give an affected State a clear indication of the kinds and degrees of loss or injury to which persons and things within the territory or control of that affected State are being or may be subjected; and the affected State is not obliged to rely upon assurances which it has no sufficient means of knowledge to verify. 4. If not satisfied that the measures being taken in relation to the loss or injury foreseen are sufficient to safeguard persons and things within its territory or control, the affected State may propose to the acting State that fact-finding be undertaken. f g h

See paras. 43–45. See para. 37. See paras. 19–23 and 39.

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5. The acting State may itself propose that fact-finding be undertaken; and, when such a proposal is made by the affected State, the acting State has a duty to co-operate in good faith to reach agreement with the affected State upon the arrangements for and terms of reference of the inquiry, and upon the establishment of the fact finding machinery. Both States shall furnish the inquiry with all relevant and available information. 6. Unless the States concerned otherwise agree, (a) there should be joint fact-finding machinery, with reliance upon experts, to gather relevant information, assess its implications and, to the extent possible, recommend solutions; (b) the report should be advisory, not binding the States concerned. 7. The acting State and the affected State shall contribute to the costs of the fact-finding machinery on an equitable basis. 8. Failure to take any step required by the rules contained in this section shall not in itself give rise to any right of action. Nevertheless, unless it is otherwise agreed, the acting State has a continuing duty to keep under review the activity that gives or may give rise to loss or injury; to take whatever remedial measures it considers necessary and feasible to safeguard the interests of the affected State; and, as far as possible, to provide information to the affected State about the action it is taking.i Section 3 1. If (a) it does not prove possible within a reasonable time either to agree upon the establishment and terms of reference of fact-finding machinery or for the fact-finding machinery to complete its terms of reference; or (b) any State concerned is not satisfied with the findings, or believes that other matters should be taken into consideration; or, (c) the report of the fact-finding machinery so recommends, the States concerned have a duty to enter into negotiations at the request of any one of them with a view to determining whether a regime is necessary and what form it should take. 2. Unless the States concerned otherwise agree, the negotiations shall apply the principles set out in section 5; shall also take into account, as far as applicable, any relevant factor, including those set out in section 6, and may be guided by reference to any of the matters set out in section 7. 3. Any agreement concluded pursuant to the negotiations shall, in accordance with its terms, satisfy the rights and obligations of the States parties under the present articles;j and may also stipulate the extent to which

i j

See paras. 30–33. See paras. 24–25 and 40.

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these rights and obligations replace any other rights and obligations of the parties. 4. Failure to take any step required by the rules contained in this section shall not in itself give rise to any right of action. Nevertheless, unless it is otherwise agreed, the acting State has a continuing duty to keep under review the activity that gives or may give rise to loss or injury; to take or continue whatever remedial measures it considers necessary and feasible to safeguard the interests of the affected State; and, as far as possible, to provide information to the affected State about the action it is taking.k Section 4 1. If any activity does give rise to loss or injury, and the rights and obligations of the acting and affected States under the present articles in respect of any such loss or injury have not been specified in an agreement between those States, those rights and obligations shall be determined in accordance with the provisions of this section. The States concerned shall negotiate in good faith to achieve this purpose. 2. Reparation shall be made by the acting State to the affected State in respect of any such loss or injury,l unless it is established that the making of reparation for a loss or injury of that kind or character is not in accordance with the shared expectations of those States.”m 3. The reparation due to the affected State under the preceding article shall be ascertained in accordance with the shared expectations of the States concerned and the principles set out in section 5; and account shall be taken of the reasonableness of the conduct of the parties, having regard to the record of any exchanges or negotiations between them and to the remedial measures taken by the acting State to safeguard the interests of the affected State.”n Account may also be taken of any relevant factors, including those set out in section 6, and guidance may be obtained by reference to any of the matters set out in section 7. 4. In the two preceding articles, “shared expectations” include hared expectations which (a) have been expressed in correspondence or other exchanges between the States concerned or, in so far as there are no such expressions,

k l m n

See paras. 30–33. See paras. 26, 29 and 41. See paras. 27 and 35. See paras. 26 and 32, as well as section 2, article 8, and section 3 article 4, of this schematic outline.

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(b) can be implied from common legislative or other standards or patterns of conduct normally observed by the States concerned, or in any regional or other grouping to which they both belong, or in the international community. Section 5 1. The aim and purpose of the present articles is to ensure to acting States as much freedom of choice, in relation to activities within their territory or control, as is compatible with adequate protection of the interests of affected States.o 2. Adequate protection requires measures of prevention that as far as possible avoid a risk of loss or injury and, in so far as that is not possible, measures of reparationp but the standards of adequate protection should be determined with due regard to the importance of the activity and its economic viability.**q 3. In so far as may be consistent with the preceding articles, an innocent victim should not be left to bear his loss or injury; the costs of adequate protection should be distributed with due regard to the distribution of the benefits of the activity; and standards of protection should take into account the means at the disposal of the acting State and the standards applied in the affected State and in regional and international practice. 4. To the extent that an acting State has not made available to an affected State information that is more accessible to the acting Stater concerning the nature and effects of an activity, and the means of verifying and assessing that information, the affected State shall be allowed a liberal recourse to inferences of fact and circumstantial evidence in order to establish whether the activity does or may give rise to loss or injury.s Section 6 Factors which may be relevant to a balancing of interestst include: 1. The degree of probability of loss or injury (i.e. how likely is it to happen?); 2. The seriousness of loss or injury (i.e. an assessment of quantum and degree of severity in terms of the consequences); 3. The probable cumulative effect of losses or injuries of the kind in question—in terms of conditions of life and security of the affected State, and more generally—if reliance is placed upon measures to ensure the provision of o p q r s t

See para. 10. See para. 9. See paras. 24–25. See paras. 22–23. See paras. 28 and 32. Idem.

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reparation rather than prevention (i.e. the acceptable mix between prevention and reparation); 4. The existence of means to prevent loss or injury, having regard to the highest known state of the art of carrying on the activity; 5. The feasibility of carrying on the activity by alternative means or in alternative places; 6. The importance of the activity to the acting State (i.e. how necessary is it to continue or undertake the activity, taking account of economic, social, security or other interests?); 7. The economic viability of the activity considered in relation to the cost of possible means of protection; 8. The availability of alternative activities; 9. The physical and technical capacities of the acting State (considered, for example, in relation to its ability to take measures of prevention or make reparation or to undertake alternative activities); 10. The way in which existing standards of protection compare with: (a) the standards applied by the affected State; and (b) the standards applied in regional and international practice; 11. The extent to which the acting State: (a) has effective control over the activity; and (b) obtains a real benefit from the activity; 12. The extent to which the affected State shares in the benefits of the activity; 13. The extent to which the adverse effects arise from or affect the use of a shared resource; 14. The extent to which the affected State is prepared to contribute to the cost of preventing or making reparation for loss or injury, or of maximizing its benefits from the activity; 15. The extent to which the interests of: (a) the affected State, and (b) the acting State are compatible with the interests of the general community; 16. The extent to which assistance to the acting State is available from third States or from international organizations; 17. The applicability of relevant principles and rules of international law. Section 7 Matters which may be relevant in negotiations concerning prevention and reparationu include: u

See para. 40.

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I. Fact-finding and prevention 1. The identification of adverse effects and of material and nonmaterial loss or injury to which they may give rise; 2. The establishment of procedural means for managing the activity and monitoring its effects; 3. The establishment of requirements concerning the structure and operation of the activity; 4. The taking of measures to assist the affected State in minimizing loss or injury. II. Compensation as a means of reparation 1. A decision as to where primary and residual liability should lie, and whether the liability of some actors should be channeled through others; 2. A decision as to whether liability should be unlimited or limited; 3. The choice of a forum in which to determine the existence of liability and the amounts of compensation payable; 4. The establishment of procedures for the presentation of claims; 5. The identification of compensable loss or injury; 6. The test of the measure of compensation for loss or injury; 7. The establishment of forms and modalities for the payment of compensation awarded; 8. Consideration of the circumstances which might increase or diminish liability or provide an exoneration from it. III. Authorities competent to make decisions concerning fact-finding, prevention and compensation At different phases of the negotiations, the States concerned may find it helpful to place in the hands of their national authorities or courts, international organizations or specially constituted commissions, the responsibility for making recommendations or taking decisions as to the matters referred to under headings I and II. Section 8 Settlement of disputesv (taking due account of recently concluded multilateral treaties that provide for such measures).

v

See para. 26.

Annex II

Text of the Draft Articles Provisionally Adopted by the Commission Before 1996 Chapter I General provisions Article 1 Scope of the present articles The present articles apply to activities not prohibited by international law and carried out in the territory or otherwise under the jurisdiction or control of a State which involve a risk of causing significant transboundary harm through their physical consequences. Article 2 Use of terms For the purposes of the present articles: (a) “Risk of causing significant transboundary harm” encompasses a low probability of causing disastrous harm and a high probability of causing other significant harm; (b) “Transboundary harm” means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border; (c) “State of origin” means the State in the territory or otherwise under the jurisdiction or control of which the activities referred to in article 1 are carried out. Article A [6] Freedom of action and the limits thereto The freedom of States to carry on or permit activities in their territory or otherwise under their jurisdiction or control is not unlimited. It is subject to the general obligation to prevent or minimize the risk of causing significant transboundary harm, as well as any specific obligations owed to other States in that regard.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 168–172. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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Article D [7] Cooperation States concerned shall cooperate in good faith and as necessary seek the assistance of any international organization in preventing or minimizing the risk of significant transboundary harm and, if such harm has occurred, in minimizing its effects both in affected States and in States of origin. Article B [8 and 9] Prevention States shall take all appropriate measures to prevent or minimize the risk of significant transboundary harm. Article C [9 and 10] Liability and reparation In accordance with the present articles, liability arises from significant transboundary harm caused by an activity referred to in article 1 and shall give rise to reparation. Chapter II Prevention Article 11 Prior authorization While the activity is being carried out, the States concerned shall exchange in a timely manner all information relevant to preventing or minimizing the risk of causing significant transboundary harm. States shall ensure that activities referred to in article 1 are not carried out in their territory or otherwise under their jurisdiction or control without their prior authorization. Such authorization shall also be required in case a major change is planned which may transform an activity into one referred to in article 1. Article 12 Risk assessment Before taking a decision to authorize an activity referred to in article 1, a State shall ensure that an assessment is undertaken of the risk of such activity. Such an assessment shall include an evaluation of the possible impact of that activity on persons or property as well as in the environment of other States.

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Article 13 Pre-existing activities If a State, having assumed the obligations contained in these articles, ascertains that an activity involving a risk of causing significant transboundary harm is already being carried out in its territory or otherwise under its jurisdiction or control without the authorization as required by article 11, it shall direct those responsible for carrying out the activity that they must obtain the necessary authorization. Pending authorization, the State may permit the continuation of the activity in question at its own risk. Article 14 Measures to prevent or minimize the risk States shall take legislative, administrative or other actions to ensure that all appropriate measures are adopted to prevent or minimize the risk of transboundary harm of activities referred to in article 1. Article 14 bis [20 bis/ Non-transference of risk In taking measures to prevent or minimize a risk of causing significant transboundary harm, States shall ensure that the risk is not simply transferred, directly or indirectly, from one area to another or transformed from one type of risk into another. Article 15 Notification and information 1. If the assessment referred to in article 12 indicates a risk of causing significant transboundary harm, the State of origin shall notify without delay the States likely to be affected and shall transmit to them the available technical and other relevant information on which the assessment is based and an indication of a reasonable time within which a response is required. 2. Where it subsequently comes to the knowledge of the State of origin that there are other States likely to be affected, it shall notify them without delay. Article 16 Exchange of information While the activity is being carried out, the States concerned shall exchange in a timely manner all information relevant to preventing or minimizing the risk of causing significant transboundary harm.

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Article 16 bis Information to the public States shall, whenever possible and by such means as are appropriate, provide their own public likely to be affected by an activity referred to in article 1 with information relating to that activity, the risk involved and the harm which might result and ascertain their views. Article 17 National security and industrial secrets Data and information vital to the national security of the State of origin or to the protection of industrial secrets may be withheld, but the State of origin shall cooperate in good faith with the other States concerned in providing as much information as can be provided under the circumstances. Article 18 Consultations on preventive measures 1. The States concerned shall enter into consultations, at the request of any of them and without delay, with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent or minimize the risk of causing significant transboundary harm, and cooperate in the implementation of these measures. 2. States shall seek solutions based on an equitable balance of interests in the light of article 20. 3. If the consultations referred to in paragraph 1 fail to produce an agreed solution the State of origin shall nevertheless take into account the interests of States likely to be affected and may proceed with the activity at its own risk, without prejudice to the right of any State withholding its agreement to pursue such rights as it may have under these articles or otherwise. Article 19 Rights of the State likely to be affected 1. When no notification has been given of an activity conducted in the territory or otherwise under the jurisdiction or control of a State, any other State which has serious reason to believe that the activity has created a risk of causing it significant harm may require consultations under article 18. 2. The State requiring consultations shall provide technical assessment setting forth the reasons for such belief. If the activity is found to be one of those referred to in article 1, the State requiring consultations may claim an equitable share of the cost of the assessment from the State of origin.

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Article 20 Factors involved in an equitable balance of interests In order to achieve an equitable balance of interests as referred to in paragraph 2 of article 18, the States concerned shall take into account all relevant factors and circumstances, including: (a) The degree of risk of significant transboundary harm and the availability of means of preventing or minimizing such risk or of repairing the harm; (b) The importance of the activity, taking into account its overall advantages of a social, economic and technical character for the State of origin in relation to the potential harm for the States likely to be affected; (c) The risk of significant harm to the environment and the availability of means of preventing or minimizing such risk or restoring the environment; (d) The economic viability of the activity in relation to the costs of prevention demanded by the States likely to be affected and to the possibility of carrying out the activity elsewhere or by other means or replacing it with an alternative activity; (e) The degree to which the States likely to be affected are prepared to contribute to the costs of prevention; (f ) The standards of protection which the States likely to be affected apply to the same or comparable activities and the standards applied in comparable regional or international practice.

Annex III

Articles on Liability Proposed in the Tenth Report of the Special Raporteur, Mr Julio Barboza1 Article A. Liability of the operator The operator of an activity referred to in article 1 shall be liable for all significant transboundary harm caused by such activity during the periods in which he exercises control of such activity. (a) In the case of continuous occurrences, or a series of occurrences having the same origin, operators liable under the paragraph above shall be held jointly and severally liable. (b) Where the operator proves that during the period of the commission of the continuous occurrence in respect of which he is liable only a part of the damage was caused, he shall be liable for that part. (c) Where the operator proves that the occurrence in a series of occurrences having the same origin for which he is liable has caused only a part of the damage, he shall be held liable for that part. Article B. Recourse against third parties No provision of these articles shall restrict the right of recourse which the law of the competent jurisdiction grants to the operator against any third party.” Article C. Financial securities or insurance In order to cover the liability provided for in these articles, States of origin shall, where appropriate, require operators engaged in dangerous activities in their territory or otherwise under their jurisdiction or control to participate in a financial security scheme or to provide other financial guarantees within such limits as shall be determined by the authorities of such States, in accordance with the assessment of the risk involved in the activity in question and the conditions established in their internal law.

1

The articles transcribed are exclusively those on liability. The Special Rapporteur submitted alternative texts to some of the articles proposed.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 173–175. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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Article D. Action brought directly against an insurer or financial guarantor An action for compensation may be brought directly against the insurer or another person who has provided the financial security referred to in the article above.” Article E. Competent court Actions for compensation of damages attaching to the civil liability of the operator may be brought only in the competent courts of a State party that is either the affected State, the State of origin or the State where the liable operator has his domicile or residence or principal place of business.” Article F. Domestic remedies The Parties shall provide in their domestic law for judicial remedies that allow for prompt and adequate compensation or other relief for the harm caused by the activities referred to in article 1. Article G. Application of national law The competent courts shall apply their national law in all matters of substance or procedure not specifically dealt with in these articles.” Article 10 of the Sixth Report.2 “States parties shall treat the effects of an activity that arise in the territory or under the jurisdiction or control of another State in the same way as effects arising in their own territory. In particular, they shall apply the provisions of these articles and of their national laws without discrimination on grounds of the nationality, domicile or residence of persons injured by the activities referred to in article 1.” Article H When considering evidence of the causal link between the incident and the harm, the court shall take due account of the increased danger of causing such harm inherent in the dangerous activity.”

2

Considered to be aplicable in the context of the articles proposed in the Tenth Report. “In the sixth report, in article 30 on the application of national law, we introduced a paragraph following the Paris Convention wording, to the effect that both the draft articles and national law and legislation should be applied without any discrimination based on nationality, domicile or residence.” Tenth Report, Doc.

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Article I. Enforceability of the judgment 1. Where the final judgements entered by the competent court are enforceable under the laws applied by such court, they shall be recognized in the territory of any other Contracting Party unless: (a) The judgement was obtained by fraud; (b) Reasonable advance notice of the claim to enable the defendant to present his case under appropriate conditions was not given; (c) The judgement was contrary to the public policy of the State in which recognition is sought, or did not accord with the fundamental standards of justice; (d) The judgment was irreconcilable with an earlier judgement given in the State in which recognition is sought on a claim on the same subject and between the same parties. Article J. Exceptions 1. The operator shall not be liable: (a) If the harm were directly attributable to an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or (b) If the harm were wholly caused by an act or omission done with the intent to cause harm by a third party. 2. If the operator proves that the harm resulted wholly or partially either from an act or omission by the person who suffered the harm, or from the negligence of that person, the operator may be exonerated wholly or partially from his liability to such person.” Article 21. Residual liability for a breach by the State. Alternative A. Harm which would not have occurred if the State of origin had fulfilled its obligations of prevention in respect of the activities referred to in article 1 shall entail the liability of the State of origin. Such liability shall be limited to that portion of the compensation which cannot be satisfied by applying the provisions or civil liability set forth herein. Alternative B. The State of origin shall in no case be liable for compensation in respect of harm caused by incidents arising from the activities referred to in article 1.

Annex IV

Draft Articles Proposed by the 1996 Working Group Chapter I. General provisions Article 1. Activities to which the present articles apply The present articles apply to: (a) Activities not prohibited by international law which involve a risk of causing significant transboundary harm [; and (b) Other activities not prohibited by international law which do not involve a risk referred to in subparagraph (a) but none the less cause such harm;] through their physical consequences. Article 2. Use of terms For the purposes of the present articles: (a) “Risk of causing significant transboundary harm” encompasses a low probability of causing disastrous harm and a high probability of causing other significant harm; (b) “Transboundary harm” means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border; (c) “State of origin” means the State in the territory or otherwise under the jurisdiction or control of which the activities referred to in article 1 are carried out. (d) “Affected State” means the State in the territory of which the significant transboundary harm has occurred or which has jurisdiction or control over any other place where such harm has occurred. Article 3. Freedom of action and the limits thereto The freedom of States to carry on or permit activities in their territory or otherwise under their jurisdiction or control is not unlimited. It is subject to the general obligation to prevent or minimize the risk of causing significant transboundary harm, as well as any specific obligations owed to other States in that regard.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 176–181. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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Article 4. Prevention States shall take all appropriate measures to prevent or minimize the risk of significant transboundary harm and, if such harm has occurred, to minimize its effects. Article 5. Liability In accordance with the present articles, liability arises from significant transboundary harm caused by an activity referred to in article 1 and shall give rise to compensation or other relief. Article 6. Cooperation States concerned shall cooperate in good faith and as necessary seek the assistance of any international organization in preventing or minimizing the risk of significant transboundary harm and, if such harm has occurred, in minimizing its effects both in affected States and in States of origin. Article 7. Implementation States shall take the necessary legislative, administrative or other action to implement the provisions of the present articles. Article 8. Relationship to other rules of international law The fact that the present articles do not apply to transboundary harm arising from a wrongful act or omission of a State is without prejudice to the existence or operation of any other rule of international law relating to such an act or omission. Article 9. Prior authorization States shall ensure that activities referred to in article 1, subparagraph (a), are not carried out in their territory or otherwise under their jurisdiction or control without their prior authorization. Such authorization shall also be required in case a major change is planned which may transform an activity into one referred to in article 1, subparagraph (a). Article 10. Risk assessment Before taking a decision to authorize an activity referred to in article 1, subparagraph (a), a State shall ensure that an assessment is undertaken of the risk

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of such activity. Such an assessment shall include an evaluation of the possible impact of that activity on persons or property as well as in the environment of other States. Article 11. Pre-existing activities If a State, having assumed the obligations contained in these articles, ascertains that an activity referred to in article 1, subparagraph (a), is already being carried out in its territory or otherwise under its jurisdiction or control without the authorization as required by article 9, it shall direct those responsible for carrying out the activity that they must obtain the necessary authorization. Pending authorization, the State may permit the continuation of the activity in question at its own risk. Article 12. Non-transference of risk In taking measures to prevent or minimize a risk of significant transboundary harm caused by an activity referred to in article 1, subparagraph (a), States shall ensure that the risk is not simply transferred, directly or indirectly, from one area to another or transformed from one type of risk into another. Article 13. Notification and information 1. If the assessment referred to in article 10 indicates a risk of causing significant transboundary harm, the State of origin shall notify without delay the States likely to be affected and shall transmit to them the available technical and other relevant information on which the assessment is based and an indication of a reasonable time within which a response is required. 2. Where it subsequently comes to the knowledge of the State of origin that there are other States likely to be affected, it shall notify them without delay. Article 14. Exchange of information While the activity is being carried out, the States concerned shall exchange in a timely manner all information relevant to preventing or minimizing the risk of causing significant transboundary harm. Article 15. Information to the public States shall, whenever possible and by such means as are appropriate, provide their own public likely to be affected by an activity referred to in article 1, subparagraph (a), with information relating to that activity, the risk involved and the harm which might result and ascertain their views.

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Article 16. National security and industrial secrets Data and information vital to the national security of the State of origin or to the protection of industrial secrets may be withheld, but the State of origin shall cooperate in good faith with the other States concerned in providing as much information as can be provided under the circumstances. Article 17. Consultations on preventive measures 1. The States concerned shall enter into consultations, at the request of any of them and without delay, with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent or minimize the risk of causing significant transboundary harm, and cooperate in the implementation of these measures. 2. States shall seek solutions based on an equitable balance of interests in the light of article 19. 3. If the consultations referred to in paragraph 1 fail to produce an agreed solution the State of origin shall nevertheless take into account the interests of States likely to be affected and may proceed with the activity at its own risk, without prejudice to the right of any State withholding its agreement to pursue such rights as it may have under these articles or otherwise. Article 18. Rights of the State likely to be affected 1. When no notification has been given of an activity conducted in the territory or otherwise under the jurisdiction or control of a State, any other State which has serious reason to believe that the activity has created a risk of causing it significant harm may require consultations under article 17. 2. The State requiring consultations shall provide technical assessment setting forth the reasons for such belief. If the activity is found to be one of those referred to in article 1, subparagraph (a), the State requiring consultations may claim an equitable share of the cost of the assessment from the State of origin. Article 19. Factors involved in an equitable balance of interests In order to achieve an equitable balance of interests as referred to in paragraph 2 of article 17, the States concerned shall take into account all relevant factors and circumstances, including: (a) The degree of risk of significant transboundary harm and the availability of means of preventing or minimizing such risk or of repairing the harm; (b) The importance of the activity, taking into account its overall advantages of a social, economic and technical character for the State of origin in relation to the potential harm for the States likely to be affected;

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(c) The risk of significant harm to the environment and the availability of means of preventing or minimizing such risk or restoring the environment; (d) The economic viability of the activity in relation to the costs of prevention demanded by the States likely to be affected and to the possibility of carrying out the activity elsewhere or by other means or replacing it with an alternative activity; (e) The degree to which the States likely to be affected are prepared to contribute to the costs of prevention; ( f) The standards of protection which the States likely to be affected apply to the same or comparable activities and the standards applied in comparable regional or international practice. Article 20. Non-discrimination 1. A State on the territory of which an activity referred to in article 1 is carried out shall not discriminate on the basis of nationality, residence or place of injury in granting to persons who have suffered significant transboundary harm, in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief. 2. Paragraph 1 is without prejudice to any agreement between the States concerned providing for special arrangements for the protection of the interests of persons who have suffered significant transboundary harm. Article 21. Nature and extent of compensation or other relief The State of origin and the affected State shall negotiate at the request of either party on the nature and extent of compensation or other relief for significant transboundary harm caused by an activity referred to in article 1, having regard to the factors set out in article 22 and in accordance with the principle that the victim of harm should not be left to bear the entire loss. Article 22. Factors for negotiations In the negotiations referred to in article 21, the States concerned shall take into account, inter alia, the following factors: (a) In the case of activities referred to in article 1, subparagraph (a), the extent to which the State of origin has complied with its obligations of prevention referred to in Chapter II; (b) In the case of activities referred to in article 1, subparagraph (a), the extent to which the State of origin has exercised due diligence in preventing or minimizing the damage; (c) The extent to which the State of origin knew or had means of knowing that an activity referred to in article 1 was being or was about to be carried out in its territory or otherwise under its jurisdiction or control;

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(d) The extent to which the State of origin benefits from the activity; (e) The extent to which the affected State shares in the benefit of the activity; ( f) The extent to which assistance to either State is available from or has been provided by third States or international organizations; (g) The extent to which compensation is reasonably available to or has been provided to injured persons, whether through proceedings in the courts of the State of origin or otherwise; (h) The extent to which the law of the injured State provides for compensation or other relief for the same harm; (i) The standards of protection applied in relation to a comparable activity by the affected State and in regional and international practice; (j) The extent to which the State of origin has taken measures to assist the affected State in minimizing harm.

Annex V

Prevention of Transboundary Harm from Hazardous Activities1 (2001 articles) The States Parties Having in mind Article 13, paragraph 1 (a), of the Charter of the United Nations, which provides that the General Assembly shall initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification, Bearing in mind the principle of permanent sovereignty of States over the natural resources within their territory or otherwise under their jurisdiction or control, Bearing also in mind that the freedom of States to carry on or permit activities in their territory or otherwise under their jurisdiction or control is not unlimited, Recalling the Rio Declaration on Environment and Development of 13 June 1992, Recognizing the importance of promoting international cooperation, Have agreed as follows: Article 1 Scope The present articles apply to activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences. Article 2 Use of terms For the purposes of the present articles: (a) “Risk of causing significant transboundary harm” includes risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm;

1

Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 182–188. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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(b) “Harm” means harm caused to persons, property or the environment; (c) “Transboundary harm” means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border; (d) “State of origin” means the State in the territory or otherwise under the jurisdiction or control of which the activities referred to in article 1 are planned or are carried out; (e) “State likely to be affected” means the State or States in the territory of which there is the risk of significant transboundary harm or which have jurisdiction or control over any other place where there is such a risk; (f) “States concerned” means the State of origin and the State likely to be affected. Article 3 Prevention The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof. Article 4 Cooperation States concerned shall cooperate in good faith and, as necessary, seek the assistance of one or more competent international organizations in preventing significant transboundary harm or at any event in minimizing the risk thereof. Article 5 Implementation States concerned shall take the necessary legislative, administrative or other action, including the establishment of suitable monitoring mechanisms to implement the provisions of the present articles. Article 6 Authorization 1. The State of origin shall require its prior authorization for: (a) Any activity within the scope of the present articles carried out in its territory or otherwise under its jurisdiction or control; (b) Any major change in an activity referred to in subparagraph (a); (c) Any plan to change an activity which may transform it into one falling within the scope of the present articles.

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2. The requirement of authorization established by a State shall be made applicable in respect of all pre-existing activities within the scope of the present articles. Authorizations already issued by the State for pre-existing activities shall be reviewed in order to comply with the present articles. 3. In case of a failure to conform to the terms of the authorization, the State of origin shall take such actions as appropriate, including where necessary terminating the authorization. Article 7 Assessment of risk Any decision in respect of the authorization of an activity within the scope of the present articles shall, in particular, be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment. Article 8 Notification and information 1. If the assessment referred to in article 7 indicates a risk of causing significant transboundary harm, the State of origin shall provide the State likely to be affected with timely notification of the risk and the assessment and shall transmit to it the available technical and all other relevant information on which the assessment is based. 2. The State of origin shall not take any decision on authorization of the activity pending the receipt, within a period not exceeding six months, of the response from the State likely to be affected. Article 9 Consultations on preventive measures 1. The States concerned shall enter into consultations, at the request of any of them, with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent significant transboundary harm or at any event to minimize the risk thereof. The States concerned shall agree, at the commencement of such consultations, on a reasonable time frame for the consultations. 2. The States concerned shall seek solutions based on an equitable balance of interests in the light of article 10. 3. If the consultations referred to in paragraph 1 fail to produce an agreed solution, the State of origin shall nevertheless take into account the interests of the State likely to be affected in case it decides to authorize the activity to be pursued, without prejudice to the rights of any State likely to be affected.

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Article 10 Factors involved in an equitable balance of interests In order to achieve an equitable balance of interests as referred to in paragraph 2 of article 9, the States concerned shall take into account all relevant factors and circumstances, including: (a) The degree of risk of significant transboundary harm and of the availability of means of preventing such harm, or minimizing the risk thereof or repairing the harm; (b) The importance of the activity, taking into account its overall advantages of a social, economic and technical character for the State of origin in relation to the potential harm for the State likely to be affected; (c) The risk of significant harm to the environment and the availability of means of preventing such harm, or minimizing the risk thereof or restoring the environment; (d) The degree to which the State of origin and, as appropriate, the State likely to be affected are prepared to contribute to the costs of prevention; (e) The economic viability of the activity in relation to the costs of prevention and to the possibility of carrying out the activity elsewhere or by other means or replacing it with an alternative activity; (f) The standards of prevention which the State likely to be affected applies to the same or comparable activities and the standards applied in comparable regional or international practice. Article 11 Procedures in the absence of notification 1. If a State has reasonable grounds to believe that an activity planned or carried out in the State of origin may involve a risk of causing significant transboundary harm to it, it may request the State of origin to apply the provision of article 8. The request shall be accompanied by a documented explanation setting forth its grounds. 2. In the event that the State of origin nevertheless finds that it is not under an obligation to provide a notification under article 8, it shall so inform the requesting State within a reasonable time, providing a documented explanation setting forth the reasons for such finding. If this finding does not satisfy that State, at its request, the two States shall promptly enter into consultations in the manner indicated in article 9. 3. During the course of the consultations, the State of origin shall, if so requested by the other State, arrange to introduce appropriate and feasible measures to minimize the risk and, where appropriate, to suspend the activity in question for a reasonable period.

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Article 12 Exchange of information While the activity is being carried out, the States concerned shall exchange in a timely manner all available information concerning that activity relevant to preventing significant transboundary harm or at any event minimizing the risk thereof. Such an exchange of information shall continue until such time as the States concerned consider it appropriate even after the activity is terminated. Article 13 Information to the public States concerned shall, by such means as are appropriate, provide the public likely to be affected by an activity within the scope of the present articles with relevant information relating to that activity, the risk involved and the harm which might result and ascertain their views. Article 14 National security and industrial secrets Data and information vital to the national security of the State of origin or to the protection of industrial secrets or concerning intellectual property may be withheld, but the State of origin shall cooperate in good faith with the State likely to be affected in providing as much information as possible under the circumstances. Article 15 Non-discrimination Unless the States concerned have agreed otherwise for the protection of the interests of persons, natural or juridical, who may be or are exposed to the risk of significant transboundary harm as a result of an activity within the scope of the present articles, a State shall not discriminate on the basis of nationality or residence or place where the injury might occur, in granting to such persons, in accordance with its legal system, access to judicial or other procedures to seek protection or other appropriate redress. Article 16 Emergency preparedness The State of origin shall develop contingency plans for responding to emergencies, in cooperation, where appropriate, with the State likely to be affected and competent international organizations.

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Article 17 Notification of an emergency The State of origin shall, without delay and by the most expeditious means, at its disposal, notify the State likely to be affected of an emergency concerning an activity within the scope of the present articles and provide it with all relevant and available information. Article 18 Relationship to other rules of international law The present articles are without prejudice to any obligation incurred by States under relevant treaties or rules of customary international law. Article 19 Settlement of disputes 1. Any dispute concerning the interpretation or application of the present articles shall be settled expeditiously through peaceful means of settlement chosen by mutual agreement of the parties to the dispute, including negotiations, mediation, conciliation, arbitration or judicial settlement. 2. Failing an agreement on the means for the peaceful settlement of the dispute within a period of six months, the parties to the dispute shall, at the request of any of them, have recourse to the establishment of an impartial factfinding commission. 3. The Fact-finding Commission shall be composed of one member nominated by each party to the dispute and, in addition, a member not having the nationality of any of the parties to the dispute chosen by the nominated members who shall serve as Chairperson. 4. If more than one State is involved on one side of the dispute and those States do not agree on a common member of the Commission and each of them nominates a member, the other party to the dispute has the right to nominate an equal number of members of the Commission. 5. If the members nominated by the parties to the dispute are unable to agree on a Chairperson within three months of the request for the establishment of the Commission, any party to the dispute may request the SecretaryGeneral of the United Nations to appoint the Chairperson who shall not have the nationality of any of the parties to the dispute. If one of the parties to the dispute fails to nominate a member within three months of the initial request pursuant to paragraph 2, any other party to the dispute may request the Secretary-General of the United Nations to appoint a person who shall not have the nationality of any of the parties to the dispute. The person so appointed shall constitute a single-member Commission.

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6. The Commission shall adopt its report by a majority vote, unless it is a single-member Commission, and shall submit that report to the parties to the dispute setting forth its findings and recommendations, which the parties to the dispute shall consider in good faith.

Annex VI

Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities Text adopted by the International Law Commission at its fifty-eighth session, in 2006. The General Assembly Reaffirming Principles 13 and 16 of the Rio Declaration on Environment and Development, Recalling the Draft articles on the Prevention of Transboundary Harm from Hazardous Activities, Aware that incidents involving hazardous activities may occur despite compliance by the relevant State with its obligations concerning prevention of transboundary harm from hazardous activities, Noting that as a result of such incidents other States and/or their nationals may suffer harm and serious loss, Emphasizing that appropriate and effective measures should be in place to ensure that those natural and legal persons, including States, that incur harm and loss as a result of such incidents are able to obtain prompt and adequate compensation, Concerned that prompt and effective response measures should be taken to minimize the harm and loss which may result from such incidents, Noting that States are responsible for infringements of their obligations of prevention under international law, Recalling the significance of existing international agreements covering specific categories of hazardous activities and stressing the importance of the conclusion of further such agreements, Desiring to contribute to the development of international law in this field, Principle 1 Scope of application The present draft principles apply to transboundary damage caused by hazardous activities not prohibited by international law. Julio Barboza, The Environment, Risk and Liability in International Law, pp. 189–192. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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Principle 2 Use of terms For the purposes of the present draft principles: (a) “damage” means significant damage caused to persons, property or the environment; and includes: (i) loss of life or personal injury; (ii) loss of, or damage to, property, including property which forms part of the cultural heritage; (iii) loss or damage by impairment of the environment; (iv) the costs of reasonable measures of reinstatement of the property, or environment, including natural resources; (v) the costs of reasonable response measures; (b) “environment” includes natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors, and the characteristic aspects of the landscape; (c) “hazardous activity” means an activity which involves a risk of causing significant harm; (d) “State of origin” means the State in the territory or otherwise under the jurisdiction or control of which the hazardous activity is carried out; (e) “transboundary damage” means damage caused to persons, property or the environment in the territory or in other places under the jurisdiction or control of a State other than the State of origin; (f) “victim” means any natural or legal person or State that suffers damage; (g) “operator” means any person in command or control of the activity at the time the incident causing transboundary damage occurs. Principle 3 Purposes The purposes of the present draft principles are: (a) to ensure prompt and adequate compensation to victims of transboundary damage; and (b) to preserve and protect the environment in the event of transboundary damage, especially with respect to mitigation of damage to the environment and its restoration or reinstatement. Principle 4 Prompt and adequate compensation 1. Each State should take all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage

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caused by hazardous activities located within its territory or otherwise under its jurisdiction or control. 2. These measures should include the imposition of liability on the operator or, where appropriate, other person or entity. Such liability should not require proof of fault. Any conditions, limitations or exceptions to such liability shall be consistent with draft principle 3. 3. These measures should also include the requirement on the operator or, where appropriate, other person or entity, to establish and maintain financial security such as insurance, bonds or other financial guarantees to cover claims of compensation. 4. In appropriate cases, these measures should include the requirement for the establishment of industry-wide funds at the national level. 5. In the event that the measures under the preceding paragraphs are insufficient to provide adequate compensation, the State of origin should also ensure that additional financial resources are made available. Principle 5 Response measures Upon the occurrence of an incident involving a hazardous activity which results or is likely to result in transboundary damage: (a) the State of origin shall promptly notify all States affected or likely to be affected of the incident and the possible effects of the transboundary damage; (b) the State of origin, with the appropriate involvement of the operator, shall ensure that appropriate response measures are taken and should, for this purpose, rely upon the best available scientific data and technology; (c) the State of origin, as appropriate, should also consult with and seek the cooperation of all States affected or likely to be affected to mitigate the effects of transboundary damage and if possible eliminate them; (d) the States affected or likely to be affected by the transboundary damage shall take all feasible measures to mitigate and if possible to eliminate the effects of such damage; (e) the States concerned should, where appropriate, seek the assistance of competent international organizations and other States on mutually acceptable terms and conditions. Principle 6 International and domestic measures 1. States shall provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensure that these bodies

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have prompt, adequate and effective remedies available in the event of transboundary damage caused by hazardous activities located within their territory or otherwise under their jurisdiction or control. 2. Victims of transboundary damage should have access to remedies in the State of origin that are no less prompt, adequate and effective than those available to victims that suffer damage, from the same incident, within the territory of that State. 3. Paragraphs 1 and 2 are without prejudice to the right of the victims to seek remedies other than those available in the State of origin. 4. States may provide for recourse to international claims settlement procedures that are expeditious and involve minimal expenses. 5. States should guarantee appropriate access to information relevant for the pursuance of remedies, including claims for compensation. Principle 7 Development of specific international regimes 1. Where, in respect of particular categories of hazardous activities, specific global, regional or bilateral agreements would provide effective arrangements concerning compensation, response measures and international and domestic remedies, all efforts should be made to conclude such specific agreements. 2. Such agreements should, as appropriate, include arrangements for industry and/or State funds to provide supplementary compensation in the event that the financial resources of the operator, including financial security measures, are insufficient to cover the damage suffered as a result of an incident. Any such funds may be designed to supplement or replace national industrybased funds. Principle 8 Implementation 1. Each State should adopt the necessary legislative, regulatory and administrative measures to implement the present draft principles. 2. The present draft principles and the measures adopted to implement them shall be applied without any discrimination such as that based on nationality, domicile or residence. 3. States should cooperate with each other to implement the present draft principles.

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Index Abate significant harm, 15 Abate transboundary environmental interference, 27, 69 Absolute liability, 23, 26, 41, 65, 76, 102, 113 Abstract probability of harm, 9 Abuse of rights, 64, 65 Acceptable risk, 5, 9, 10 Access to information, 149, 192 Accidental damages, 49, 51 Accidental pollution, 67, 93 Accountability, 3, 13, 21, 24, 39, 49, 59, 63, 65, 68, 69, 78, 89, 90, 114, 117, 127, 154 Activities and acts, 7–8 Activity, xv, xvi, 4, 5, 7–13, 16, 17, 25–27, 29, 32, 33–35, 37, 40, 42, 46, 47–51, 56, 62, 63, 66, 69–72, 75, 76, 81–92, 94, 95, 97, 98, 100, 103–109, 113, 115, 117, 120, 123, 128, 133, 142, 153–155, 157–159, 161–166, 169–174, 177–181, 183–187 Acts not prohibited by international law, xvii, 1, 2, 16, 24, 26, 28, 54, 56, 74, 76, 81, 87, 88, 108, 110, 120, 126, 153 Ago, R., 22, 75, 76 Alabama case, 48, 50, 122 Ambassador Helmut Tuerck statement, 87 Anglo-American law, 2, 25 Antarctic Convention, 98 Antonio Gramsci, 141 Appreciable or significant, 100 Appreciable risk, 89–91 Arcisate, Italy, 58 Areas beyond national jurisdiction, 4, 13, 87, 112 Article 1 (b), 110 Articles on prevention, 77, 78, 81, 82, 110, 118–120, 129, 130–132 Assessment alternative methods, 124 Assessment of risk, 15–17, 82, 85, 123, 169, 177–178, 184 Assimilated into strict liability, 78 Attenuation of liability, 108 Attribution to State, 9–91 Balance of factors and interests at stake, 96 Balance of interests, 4, 17, 18, 42, 53, 65, 71, 72, 82, 91–92, 96, 104, 121, 154, 158–159, 171, 172, 179, 184, 185

Balance-of-interests consultations, 18 Basel Protocol, 32, 35, 36, 38, 39, 40, 149 Beaufort Sea prospection, 59 Belgian refinery, 60 Bruntland Experts Group, 13, 14, 67 Brussels Convention, 39, 67, 148 Brussels Supplementary Convention, 36–38 Cannikin Nuclear Test, 59 Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (CRTD), 32, 94, 98 Causality, 5, 11–12, 22, 29, 42, 96, 109 Causal link, 10, 12, 19, 26, 33–35, 38, 39, 61, 174 Ceiling, 71, 72, 133, 138, 158 Cessation, 7, 8, 27, 32, 46 Cherry Point oil spill, 1972, 54 Choice of law, 149 Civil liability regime financial guarantee, 39 private persons/entities, 31 Civil liability regimes, 6, 31, 69, 70, 103 Collective attribution of liability, 12, 37 Colorado River salinity dispute, 57–58 Commission 2001 articles, 15, 130, 152, 158, 181–188 Compassionate responsibility, 63 Compensable damage, 97–99, 133, 144 Compensation, 1, 2–7, 9, 10, 12, 15, 21, 22, 24, 25, 27–29, 31–40, 42, 43, 45–48, 52–57, 59–63, 66, 67, 69, 71, 72, 75, 78, 79, 81, 89, 91, 92, 97–100, 102–106, 108, 109, 112–114, 116, 117, 120, 130, 131, 134, 136, 138–142, 144–151, 153–159, 166, 167, 174, 177, 180, 181, 189–192 Complete System proposed in Tenth Report, 78 Compound obligation, 27, 69, 79 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, 142 Comprehensive Nuclear-Test-Ban Treaty 1996, 5 Concept of environment, 134, 136

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 199–204. © 2011 Koninklijke Brill NV. Printed in the Netherlands.

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Index

Consultations, 15, 18, 29, 62, 82, 86, 123, 124, 171, 179, 184, 185 Contingency, 8, 18, 85, 88, 124, 131, 155, 186 Contingency plans, 18, 88, 124, 131, 186 Contingent valuation (CV) methodology, 142, 143 Contributory negligence, 7 “Control,” 5 “Control of a territory,” 5 Conventional law, 31–43, 45, 68 Conventional regimes and obligation owned by State, 77 Convention on Liability for Damage caused by Space Objects, 1972, 54 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), 16, 36, 39, 140 Convention on Transboundary Impacts of Industrial Accidents, 93 Cooperate to minimize risks, 106 Cooperation, 16, 29, 106, 115, 121, 122, 151, 158, 169, 177, 182, 183, 186, 191 Corfu Channel case, 14, 47, 51–52, 89, 90 Corrective justice, 36 Cosmos incident, 54–55 Cost of prevention/abatement, 66 Cost of travel/hedonic price, 142 Costs to society, 3 Criteria to determine compensation, 7 Cultural heritage, 133, 134, 190 Customary rules, 45, 46 Damage abstract quantifications, 141 causality, 5, 11 liability regime, 10, 79 prevention and liability articles, 11 significant risk, 10 types, 46 Damaged elements, restoration, 139 Damage jurists deal, 137 Damages link of causality, 5 Damage to the environment per se, 136, 137 Damoclean sword, 9 Dead set v. State liability, 77 Decision-making, 9, 10, 149 Definition in article 2 (e), 93 Delegates and members, 117 de lege ferenda, 38, 65 Development of international law codification method, 74 progressive method, 74 Dictum of Judge Huber, 153 Diligence proportional, danger, 68 Dispute settlement, 124

Domestic channel, 103, 114–116, 118 Draft articles, 71, 74, 75, 77, 85, 86, 88, 89, 92, 95, 96, 102, 105, 107, 108, 110, 113, 116, 119, 120, 125, 127, 129–132, 140, 145, 168–172, 174, 176–181, 182, 189 Drafting Committee (DC), 74 Dual compensation scheme, 35 Due diligence, 6, 15, 35, 39, 42, 49–53, 50, 51, 52, 53, 66, 69, 70, 76, 77, 81, 82, 102, 113, 122, 123, 128, 131, 145, 155, 156, 158, 180 Dupuy, Pierre-Marie, 41 Duty not to discrimate, 114 Duty of care, 16, 23, 77, 80, 81, 91 Duty of care, extensive responsibility, 91 Ecological damage, 12, 141 Ecological nature, 85 Eleventh Report, environment, 97 Embryonic state, 46 Emergency preparedness, 124, 186 Enforcement prevention measures, 82 Ensuring, test of reasonability, 157 Environmental damage, 33, 60, 61, 97, 99, 112, 114, 118, 131–136, 139, 141–144 Environment, unitary asset, 141 Equal access to justice, 148 Equal access to State courts, 114 Equal treatment damaged parties, 114 Equivalent component, 139 Essential obligation owed by state, 76 Ex-gratia payment, 55, 63, 154, 157 Existence values, 143 Existing and capital principles, 154 Existing principle, 154 Experimental articles, 74 Expert Group of the World Commission of Environment and Development, 85 Ex-post prevention, 14, 108, 111, 112, 147, 148, 150 Fault, xv, 1, 3, 6–7, 7, 10, 12, 14, 21, 22, 24–26, 25, 26, 28, 29, 35, 41, 48, 49, 51, 53, 55, 61, 64, 65, 66, 67, 102, 103, 104, 112, 131, 146, 147, 156, 158, 191 Federal Water Pollution Act (Clean Water Act), 1977, 136 First Special Rapporteur, 65, 73, 78, 80, 89, 106–109 Flexibility, 7, 22, 33–35, 158 Foreign judgments and arbitral awards, 149 Forum shopping, 118, 138 Fourth Report, 81, 84, 85, 92, 94, 96, 99, 106 Freedom of action of States, 111–112 French and American nuclear tests, 59 Fukuyu Maru fishing vessel, 56–57

Index

Fund acts–as second tier of liability, 37 Fund Convention, 32, 34, 36, 37, 38, 39, 40, 90 General international law, 1, 45, 47, 54, 64, 69, 77, 79, 86, 121, 122, 128, 146, 153 General principles, 4, 14, 41, 46, 53–55, 65–71, 77, 80, 145 Government of Japan, Japanese fishermen, 57 Governments invited, point 5, 152 Green paper, 33, 134 Grey zone in general law, 71 Guarantee, 6, 22, 27, 32, 39, 46, 59, 69, 76, 128, 147, 191 Guarantors, 157, 174 Gut Dam case, 53–54 Hard preventive obligations, 29, 82, 83, 150 Harm and damage, 10–12 Harm caused in fact, 86 Harmful effects, 85–87 Harmful/noxious effects, 8 Harm itself reflected in social terms, 96 Harmon doctrine, 155 Hazardous activities, xv, xvi, 1–3, 5, 6, 8, 10, 12–15, 18, 19, 21, 29, 31, 33, 37, 45–46, 55, 63–65, 67, 71, 83, 87–89, 93, 94, 103, 106, 110, 111, 115, 117, 119, 120, 123, 129–133, 145, 151, 152, 154, 155, 159, 182–192 conventions, 14, 21, 115, 130, 155 prevention obligations, 14 Human action, 9, 10, 139 Human decision, 9 Hurdles, 78 ILC members, 27 ILC treatment of liability, 70 Inclusion in draft articles, 88, 132 Inconveniences, 11, 136 Individual causal linkages, 12 Information to the public, 82, 171, 178, 186, 214 Informed decisions, 15, 17 Inherent difficulties, 2 Integral restitution, 3, 29, 139 Internal law parties, 37, 136 International Court of Justice (ICJ), 4, 14, 17, 18, 89, 145 International fund for compensation for oil pollution damage, 141 International law environment, 4 International Law Commission (ILC), xvii, 1, 2, 5, 10, 11, 15, 18, 19, 21, 22, 23, 24,

201

26–28, 28, 42, 54, 58, 66, 68, 70, 71, 73–153, 155, 157, 159, 160, 189 International Law Commission, 1997 session, 119–152 International Law Commission’s parlance, 2, 23 International law principles, 65 International legal system, 69 International liability, xvii, 2, 3, 12, 16, 21–29, 24, 28, 29, 31, 43, 54–56, 55, 56, 62, 67, 68, 71, 74, 76, 81, 87, 90, 99, 102–104, 110, 113, 119, 127, 130, 133, 153 International obligation, 3, 23, 24, 46, 48, 100 International plane, 29, 41, 42, 77, 136, 153 International practice, 26, 45–72, 73, 90, 96, 102, 103, 105, 111, 113, 115, 129, 138, 143, 149, 156, 157, 159, 165, 172, 180, 181, 185 International practice regarding hazardous activities, 115, 154 International procedures for claims settlements, 149 Irrelevance of fault, 22, 28, 158 IXTOC I blowout, 61–62 Japanese ship Showa Maru, 1975, 58 Jiménez de Aréchaga, E., 41, 68 joint examination of subjects–more difficult to grasp, 75, 126 Kearney, 22, 126 Kiev Protocol, 35, 102, 149, 151 Lawful conduct, 26, 68, 81 Lawfulness and unlawfulness–grey zone between, 154 Layers of compensation, 42, 159 Learned opinion, 64–71, 111 Legality, 4, 22, 70 Legal regulation, 3, 29, 85 Legal relationship, 18 Level of threshold, 101 Liability, 1–19, 21–29, 31–43, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64–82, 87–90, 92, 93, 95, 97, 98, 99–104, 107, 108, 109, 110, 112–118, 119, 121, 124, 125–129, 130, 131, 132, 133, 134, 136, 137, 139, 141, 142, 144, 146, 147, 148, 149, 153, 155, 156, 157, 158, 159, 160, 166, 167, 169, 174–175, 177, 191 absolute, 23, 26, 41, 65, 76, 102, 113 allocations, 32, 37, 41, 42, 90 Canada, 53 Channeling of liability, 3, 147 compensation, 7, 15, 31, 32, 33, 35, 36, 37, 38, 42, 43, 69, 72, 78, 142, 166–167, 174, 177

202

Index

direct control, 32 exceptions, 6–7 fifty-fourth session of Internacional Law Comission, 129 flexibility of liability, 7 international, 2, 3, 12, 16, 21–29, 31, 43, 54, 55, 56, 62, 67, 68, 71, 74, 76, 81, 87, 90, 99, 102–104, 119, 127, 130, 133, 153 rational attribution, 42, 43 remedies, 6 requirements, 5 responsibility and, 2, 21–29, 76, 78, 95, 97, 98, 115, 126, 139, 159 risk, 2, 12, 26, 92, 103 sine delicto, 2, 6, 21, 22, 25, 26, 29, 35, 42, 49, 53, 63, 64, 66, 68, 70, 72, 80, 81, 89, 92, 103, 104, 108, 144, 146, 155, 156 Special Rapporteur, 126 subsidiary, 5, 38, 59, 64, 102, 113, 156 supplementary, 39 trial and error, 73 liability collective attribution, 12, 37 Liability and compensation conventions, 89 Liability Convention on Space Objects, 5 Liability regimes, 3–7, 10, 11, 14, 18, 19, 29, 31, 35, 36, 39, 41, 43, 50, 51, 58, 62, 69, 70, 78, 79, 103, 129, 146 Liable parties, 14, 32, 33, 35, 36, 104 Liable party, 32, 49, 89, 90, 99 Line follow by Commission, 75 Linger on sort of compromise, 77, 128 Loosening of causal links, 11 Loss of life/personal injury, 97–99, 133, 190 Lugano Convention, 32–35, 33, 34, 35, 39, 40, 93, 98, 129, 138, 149 Mexican highway, 59 Minimization of risk, 29, 38, 120 Multiple overlapping causes, 11 National legislation, 103, 140, 151 Natural environment, 134 Natural resources, abiotic and biotic, 134, 190 Nature of strict liability, 80 Networks/layers, 12 Networks of liability, 12 No-act-of-the-State, 70, 90 No-act-of-the State exemption, 70 Non-discrimination, 42, 113–115, 118, 121, 124–125, 138, 151, 180, 186 Non-discrimination principle, 42, 114, 118, 121, 125, 138, 151 Non-prohibited hazardous activity, 153 Non-repetition, 6, 27, 46, 108

Non-use values, 135, 136, 138, 142 Notification and information, 17, 19, 82, 170, 178, 184 Notifications/consultations, 15 Notion of environmental harm, 97 Noxious activities, 8, 13, 46–51, 66, 85–87, 90 Nuclear reactor, Dukovany, 60 Nuclear tests in the Marshall Islands, 55 OECD Convention Supplementary to the Paris Convention 1963, 39 Of risk, 1, 2, 6, 9–11, 14–16, 18, 19, 28, 29, 35–38, 41, 43, 49, 71, 72, 77, 82, 85, 91–93, 117, 120, 123, 133, 146, 153, 155–159, 170, 172, 178, 179, 184, 185 Oil Pollution Act (OPA), 136, 142 Onus probandi, 26, 64, 156 Option values, 143 Outer Space Treaty 1967, 5 Overview of the outline, 107–108 Paris Convention multiple causation, 34 Paris Nuclear Conventions, 5 Perceptible trend–in domestic law of States, 67, 91 Peyton Packing and Casuco, 1961, 59 Physical environment, 11, 84 Physical transboundary consequences, 83 Plenary debate, 74–75 Polluter pays principle, 4, 13, 37, 100, 146 Polluter-pays principle, 4, 13, 37, 100, 146 Positive international law, 4, 146, 150 Pragmatic reasons, 6 Prevention specific obligations, 122–125 transboundary harm, 18, 71, 120, 122, 130, 152, 155, 182–188 Prevention and allocation of loss, 2, 78, 152 Prevention and liability, 9–19, 81–83, 116, 118, 119 Prevention is better than cure, 81 Prevention obligations, 6, 14–18, 29, 50, 66, 69, 79, 81–83, 104, 107, 108, 120–125, 130, 150, 155, 158 risk assessment, 15–17 Preventive compensation, 42, 43 Preventive measures, 4, 9, 13, 15, 18, 43, 81, 82, 86, 97–99, 107, 108, 171, 179, 184 Primary norms, 6, 24, 27–28, 77, 79 Primary obligation of reparation, 67 Primary obligations, 27, 32, 67, 68, 71, 79, 100, 119, 156 Principle of article 3, 121 Principle of article 5, 121 Principle of positive law, 65

Index

Principle of sovereign equality, 91, 112 Private operators, 31, 63, 66, 108 Progressive development, 6, 65, 74 Prohibited activities, 5, 46, 153 Prompt and adequate compensation, 15, 28, 31, 42, 46, 62, 69, 102, 109, 130, 131, 138, 145–147, 150, 154, 157, 159, 174, 189– 191, 192 Prompt compensation, 22, 32, 54, 72 Prosser, W., 25 Pure environmental damage, 144 Purposes, 76, 92, 95, 135, 140, 145, 147, 168, 176, 182, 190 Quadri, R., 21, 22, 69 Quentin-Baxter’s schematic outline, 79, 104 liability, 107 overview of the outline, 107–108 prevention, 107 Quentin-Baxter, R., 18, 73, 78–81, 84, 85, 89, 103, 104, 107–108 Reason why damages shared among concerned parties, 106 Recent concepts, 144 Regulating liability, 76 Regulation of risk, 29, 43, 77 Reinstatement, 98, 99, 140, 145, 190 Relative value, 28 Remedies, 6, 42, 62, 63, 70, 109, 115, 116, 118, 146, 148–151, 156, 159, 174, 192 Reparation, xvi, 1, 3, 4, 7, 10, 19, 22, 27, 29, 36, 45–46, 58, 67, 69, 72, 76, 78–81, 96–98, 103–105, 107, 108, 111, 113, 117, 126–128, 138–144, 150, 164–166, 169 Reparation to affected State, 107 Residual State liability, 12, 21, 38, 73 Response measures, 54, 108, 131, 147–148, 150, 151, 189–192 Responsibility, 1–8, 12, 15, 19, 21–29, 32, 35, 36, 37, 40–43, 46, 48, 49, 50, 51, 52, 54, 56, 58–72, 75–79, 81–84, 89, 90, 95, 97, 98, 102, 104, 108, 109, 110, 111, 113, 115, 118, 119, 125–130, 139, 141, 144, 155, 156, 158, 159, 167 Responsibility for wrongfulness, 79, 81 Restitution, 3, 27, 29, 32, 46, 139, 140, 147, 150 Restoration, 92, 98, 106, 113, 139–143, 145, 190 Resurrection of liability, 128–129 Rio Declaration Principle 2, 4, 111 Principle 19, 17

203

Principles 13, 112, 146, 189 Risk, 1–6, 8–19, 21, 22, 23, 25, 26, 28, 29, 31, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 48, 49, 50, 56, 62, 65, 66, 67, 69, 71, 72, 73, 75, 76, 77, 79, 80, 81, 82, 84, 85, 86, 87, 88, 89, 90–95, 92–95, 103, 104, 105, 106, 110, 111, 112, 115, 116, 117, 120, 123, 124, 125, 126, 129, 132, 133, 135, 145, 146, 153, 154, 155, 156, 157, 158, 159, 161, 164, 168, 169, 170, 172, 173, 176, 177, 178, 179, 180, 182, 183, 184, 185, 186, 189 damage, 10, 116, 133 influence of, 14–15 liability, 2, 12, 26, 92, 103 liability and prevention, 9–19 management, 9, 19, 33, 37, 41–43, 159 regulations, 29, 43, 77 Risk and harm, 5, 9–19, 91 Risk-bearer States, 4, 16, 18, 29, 72, 80, 91, 106, 158 Risk-benefit doctrine, 155 Risk-creating conduct, 154 Risk minimization, 4, 19, 38, 42 Risk society, 9 River Mura incident, 57 Rongelap Atoll, 55–56, 63 Rose Street Canal, 59 Sandoz chemical accident, 52 Scientific uncertainty, 11, 33, 34 Scope of the topic, 83–89, 110–111, 120–121, 125, 129 Secondary norm, 24, 27, 79, 128 Secondary obligations, 6, 27, 32, 156 Second Report of Barboza, 105 Second Special Rapporteur’s Tenth Report, 82, 108–109 Set of principles establishment, 104 Sic utere tuo ut alienum non laedas, 4, 91 Significant, 5, 7, 10–12, 15–18, 27, 29, 47, 67, 69, 79, 82, 87, 89, 91–93, 95, 100, 101, 109–114, 116, 117, 120, 125, 130, 133, 136, 149, 154, 168–173, 176–180, 182–186, 190 Sine delicto liability, 2, 6, 21, 22, 25, 26, 29, 35, 42, 49, 50, 53, 63–68, 64, 66, 68, 70, 72, 80, 81, 89, 90, 92, 103, 104, 108, 144, 146, 155, 156 Sine delicto responsibility, 1, 2 Sixth Report of Barboza, 82, 87, 97, 99 Smelter, functioning, 48 Social benefit, 3, 37, 46, 65, 155 Society’s tolerance, 10 Soft law, 150 Sovereign equality of States, 67, 80, 112, 121, 153

204

Index

Space Objects Convention, 32, 34, 36, 54, 68 Special Rapporteur-second, 73, 74, 81, 85, 88–90, 94, 103, 106–109, 118, 120, 132, 140 State’s territorial integrity, 80 State obligations, 42 State of origin, 4, 15, 17, 18, 31, 32, 38, 39, 63, 80, 85, 86, 89, 90, 91, 92, 99, 100, 103, 104, 106, 107, 109, 113–116, 120, 123, 124, 130, 140, 147, 148, 168, 170–172, 174, 176, 178–181, 183–187, 191–192 State of origin and States, 115, 116 State responsibility, 1, 2, 5, 6, 15, 19, 24, 25, 27, 29, 40, 41, 43, 66, 71, 72, 75–77, 95, 102, 108, 113, 125–127, 129, 130, 158 State responsibility for wrongful acts, 1, 2, 6, 15, 23, 24, 27, 29, 41, 72, 75, 127 Stockholm Declaration Principle 21, 4, 23, 41, 76 Principles 21, 4, 23, 41, 76, 146 Principles 22, 112, 146 Strict liability assimilation Subsidiary liability, 5, 38, 42, 64, 102, 113 Substantial harm, 13–15, 67 Substantive provisions, 131 Subtle and ingenious thought, 24 Successive draft, 78 Tanker Juliana, 1971, 58 Temporal separation, 11 Test-Ban Treaty 1963, 5 Teubner, Gunther, 11, 12 Texts on prevention, 109, 120 Third Report of Stephen Schwebel, 100, 101 Threshold, 3, 5, 9–11, 15, 19, 40, 71, 72, 91, 93, 97, 99, 100, 101, 130, 133, 138, 158 Threshold of damage, 40, 99–102, 100, 130, 133 Threshold of harm, 10, 97, 100 Threshold of risk, 133, 158 Thresholds and ceilings, 72, 138 Trail Smelter and Corfu Channel decisions, 146, 154

Trail Smelter arbitration, Canada and United States, 54 Trail Smelter award points, 11 Trail Smelter Case, 7, 47–50, 90, 122 Trail Smelter case, 7, 47–50, 90, 122 Trail Smelter decision, 154 Transboundary damage, 1, 3, 15, 21, 29, 31, 38, 58, 62–71, 64–71, 81, 82, 92, 104, 106, 110, 111, 119, 130, 131, 144–146, 148–150, 149, 153–157, 154–157, 155–157, 159, 190–192 transboundary pollution, 12, 66, 68 Transboundary Water Pollution, 98, 139 Two sharply different hypotheses, 126 Two taboo, 78 Ultra-hazardous activities, 1, 64–67, 83, 110 Uncertainty, 11, 12, 19, 33, 34, 142 Uncomfortable with liability, 77, 128, 147 United Nations Compensation Commission (UNCC), 60–61, 134, 144, 149 United Nations Economic Commission for Europe (ECE), 97 U.S.A.-Mexican International Boundary Waters Commission, 57 Use of domestic channel, 103, 114–115, 116, 118 Use values, 135, 136, 142 Vienna Convention multiple causation, 34 Vienna Nuclear Conventions, 5 Working Group, 1978, 76 Working Group, 2002, 129 Working Group, 2004, 132 1997 Working groups report, 78, 110, 119–120 1996 Working groups reports, 78, 109–110, 113, 117, 118, 120, 132, 176–181 Zemanek, Karl, 13