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Transboundary Harm: The International Law Commission’s Study of “International Liability”

Published online by Cambridge University Press:  27 February 2017

Daniel Barstow Magraw
Daniel Barstow Magraw*
Affiliation:
University of Colorado
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Extract

The International Law Commission of the United Nations is currently studying a topic entitled “International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law” (hereinafter “international liability” or “topic”). That topic has proven to be as serpentine as its title suggests and consequently is difficult to define. It is generally understood as encompassing, in particular, harmful transnational environmental effects of internationally lawful activities. This aspect alone has made the topic increasingly important, as demands on resources have intensified, technological advances have given rise to threats of widespread and even catastrophic transboundary harm, and the international community has grown more interdependent in other ways.

Type
Research Article
Information
American Journal of International Law , Volume 80 , Issue 2 , April 1986 , pp. 305 - 330
Copyright
Copyright © American Society of International Law 1986

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References

1 One must approach that title with care. The full title is viewed by the Commission as composed of four elements essential to describing the topic: (1) liability, (2) “internationality,” (3) injurious consequences, and (4) acts not prohibited by international law. See, e.g., Report of the International Law Commission to the General Assembly, 35 UN GAOR Supp. (No. 10), UN Doc. A/35/10 (1980) [hereinafter cited as 1980 Commission Report], reprinted in [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 1, 160, UN Doc. A/CN.4/SER.A/1980/Add.1; [1980] 1 Y.B. Int’l L. Comm’n at 247, UN Doc. A/CN.4/SER.A/1980. In addition, the French-language version of the title differs in a possibly significant manner from the English-language version by using “activités” (activities) instead of “acts.” The term “international liability” reflects the Commission’s emphasis that the topic is concerned with “liability,” which can be incurred regardless of the lawfulness of the underlying act, rather than “responsibility,” which can arise only from an unlawful act. See infra text accompanying note 10. It is debatable whether the title accurately conveys that distinction.

2 See, e.g., Handl, , State Liability for Accidental Transnational Environmental Damage by Private Persons, 74 AJIL 525 (1980)CrossRefGoogle Scholar; Trends in Environmental Policy and Law (M. Bothe ed. 1980).

3 Report of the Sub-Committee on State Responsibility to the International Law Commission, UN Doc. A/CN.4/152 (1963) [hereinafter cited as 1963 Subcommittee Report], reprinted in [1963] 2 Y.B. Int’l L. Comm’n 227, 228, UN Doc. A/CN.4/SER.A/1963/Add.1; see Lillich, , The Current Status of the Law of Stale Responsibility for Injuries to Aliens, in International Law of State Responsibility for Injuries to Aliens 1, 17 & n.l40 (Lillich, R. ed. 1983)Google Scholar; Baxter, , Reflections on Codification in Light of the International Law of State Responsibility for Injuries to Aliens, 16 Syracuse L. Rev. 745, 746 (1965)Google Scholar.

4 1963 Subcommittee Report, supra note 3, [1963] 2 Y.B. Int’l L. Comm’n at 228 n.3. The footnote appeared in a guide of points to be considered, which the Commission noted was merely a nonbinding aide-memoire. Report of the International Law Commission to the General Assembly, 18 UN GAOR Supp. (No. 9) at 36, UN Doc. A/5509 (1963), reprinted in [1963] 2 Y.B. Int’l L. Comm’n, supra, at 187, 224.

5 It is possible that the footnote refers instead only to acts that would have been unlawful except for the presence of a factor (e.g., force majeure) precluding wrongfulness. For related discussion, see infra text accompanying notes 100–103. That interpretation is unlikely because that idea could easily have been expressed clearly in connection with, or by reference to, that portion of the guide dealing with circumstances precluding wrongfulness, and because of the reference to “risk,” which implies a broader inquiry in the nature of the topic on liability. See Report of the International Law Commission to the General Assembly, 28 UN GAOR Supp. (No. 10), UN Doc. A/9010/Rev.1 (1973) [hereinafter cited as 1973 Commission Report], reprinted in [1973] 2 Y.B. Int’l L. Comm’n 155, 169–70, UN Doc. A/CN.4/SER.A/1973; Summary records of the 25th session, 1 id. at 14 (remarks of Mr. Ago).

6 See, e.g., 1963 Subcommittee Report, supra note 3, [1963] 2 Y.B. Int’l L. Comm’n at 227.

7 Report of the International Law Commission to the General Assembly, 31 UN GAOR Supp. (No. 10) at 165, UN Doc. A / 3 1 / 1 0 (1976), reprinted in [1976] 2 Y.B. Int’l L. Comm’n, pt. 2 at 1, 71, UN Doc. A/CN.4/SER.A/1976/Add.1 (“seek to determine . . .”). See also 1973 Commission Report, supra note 5, [1973] 2 Y.B. Int’l L. Comm’n at 169.

8 See infra text accompanying notes 90–107.

9 See, e.g., Summary records of the 21st session, [1969] 1 Y.B. Int’l L. Comm’n 105–17, UN Doc. A/CN.4/SER.A/1969; Riphagen, , State Responsibility: New Theories of Obligation in Interstate Relations, in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory 581 (Macdonald, R. & Johnston, D. eds. 1983)Google Scholar.

10 See, e.g., Preliminary Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/334and Adds. 1–2 (1980) [hereinafter cited as Quentin-Baxter’s preliminary report], reprinted in [1980] 2 Y.B. Int’l L. Comm’n, pt. 1 at 247, 250 & n.17, UN Doc. A/CN.4/SER.A/1980/Add.1.

11 Report of the International Law Commission to the General Assembly, 34 UN GAOR Supp. (No. 10) at 228, 230, UN Doc. A/34/10 (1979) [hereinafter cited as 1979 Commission Report], reprinted in [1979] 2 Y.B. Int’l L. Comm’n, pt. 2 at 87, 88, UN Doc. A/CN.4/ SER.A/1979/Add.1. The result mentioned in the text is not obvious. See Lillich, supra note 3, at 34 (“joint consideration . . . should have made both more comprehensible”); cf. Riphagen, supra note 9, at 581 (there were “valid practical reasons” for the severance).

12 See, e.g., Quentin-Baxter’s preliminary report, supra note 10, [1980] 2 Y.B. Int’l L. Comm’n, pt. 1 at 247.

13 Report of the International Law Commission to the General Assembly, 33 UN GAOR Supp. (No. 10), UN Doc. A/33/10 (1978) [hereinafter cited as 1978 Commission Report], reprinted in [1978] 2 Y.B. Int’l L. Comm’n, pt. 2 at 6, UN Doc. A/CN.4/SER.A/1978/Add. 1.

14 UN Doc. A/CN.4/L.284 and Corr.l (1978). For section II of the report, see 1978 Commission Report, supra note 13, [1978] 2 Y.B. Int’l L. Comm’n, pt. 2 at 150–52.

15 1978 Commission Report, supra note 13, [1978] 2 Y.B. Int’l L. Comm’n, pt. 2 at 150.

16 Quentin-Baxter’s preliminary report, supra note 10; Second Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/346 and Adds. 1–2 (1981) [hereinafter cited as Quentin-Baxter’s 2d report]; Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/360 and Corr.1 (1982) [hereinafter cited as Quentin-Baxter’s 3d report]; Fourth Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/373 and Corr.1 (1983) [hereinafter cited as Quentin-Baxter’s 4th report]; Fifth Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/383 and Add.1 (1984) [hereinafter cited as Quentin–Baxter’s 5th report].

17 The Sixth Committee, the legal committee of the General Assembly, contains representatives from each member state of the United Nations.

18 See infra text accompanying notes 33–83.

19 Schematic outline, Quentin–Baxter’s 3d report, supra note 16, at 24–30 [hereinafter cited as schematic outline].

20 Survey of State Practice relevant to International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law (prepared by UN Secretariat), UN Doc. ST/LEG/15 (1984) [hereinafter cited as Secretariat Survey].

21 Quentin-Baxter’s 5th report, supra note 16, at 1–2.

22 See, e.g., Preliminary Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, UN Doc. A/CN.4/394, at 4 (1985) [hereinafter cited as Barboza’s preliminary report]. But cf. infra text preceding note 32.

23 Barboza’s preliminary report, supra note 22, at 4, 6, 8.

24 1980 Commission Report, supra note 1, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 159.

25 Schematic outline, supra note 19, sec. 5, Art. 1. Section 5 is described elsewhere in the schematic outline as containing “principles.” Id., sec. 3, Art. 2. Section 5 continues in part as follows (footnotes omitted):

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 reparation; but the standards of adequate protection should be determined with due regard to the importance of the activity and its economic viability.

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.

26 See, e.g., Quentin–Baxter’s 3d report, supra note 16, at 1.

27 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, done Jan. 27, 1967, 18 UST 2410, TIAS No. 6347, 610 UNTS 205.

28 Corfu Channel (UK v. Alb.), Merits, 1949 ICJ Rep. 4 (Judgment of Apr. 9).

29 Trail Smelter (U.S. v. Can.), 3 R. Int’l Arb. Awards 1905 (1938 & 1941).

30 Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, pt. 1, ch. I (UN Pub. Sales No. E.73.II.A.14), reprinted in 11 ILM 1416 (1972).

31 Barboza’s preliminary report, supra note 22, at 8.

32 See, e.g., Quentin-Baxter’s 4th report, supra note 16, at 45.

33 See Report of the International Law Commission to the General Assembly, 37 UN GAOR Supp. (No. 10), UN Doc. A/37/10 (1982) [hereinafter cited as 1982 Commission Report]; Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its 37th Session, UN Doc. A/CN.4/L.352 (1983) [hereinafter cited as 1982 topical summary]. There was little discussion of the topic in 1983. See, e.g., Report of the International Law Commission to the General Assembly, 38 UN GAOR Supp. (No. 10), UN Doc. A/38/10 (1983).

34 Quentin-Baxter’s 4th report, supra note 16, at 17, 31, 52.

35 Schematic outline, supra note 19, sec. 1, Art. 1.

36 I.e., the rules regarding which actors, such as local governments, engage the state’s responsibility.

37 Quentin-Baxter’s 4th report, supra note 16, at 48.

38 Schematic outline, supra note 19, sec. 1, Art. 2; cf. infra text accompanying note 76 (“situations” in draft Art. 1).

39 Quentin-Baxter’s 4th report, supra note 16, at 54.

40 Id. at 48.

41 Schematic outline, supra note 19, sec. 1, Art. 1.

42 For the treatment of this issue in the draft articles, see infra note 80.

43 Schematic outline, supra note 19, sec. 2, Art. 2.

44 See Quentin-Baxter’s 4th report, supra note 16, at 48. But cf. id. at 54.

45 See, e.g., Quentin-Baxter’s 3d report, supra note 16, at 19.

46 See infra text accompanying notes 79–80.

47 Quentin-Baxter’s 4th report, supra note 16, at 29. The series of duties also has been called the duty to “prevent [or avoid], minimize and repair.” See, e.g., id. at 48.

48 Relevant state practice is described in the Secretariat Survey, supra note 20. With respect to the duty to inform, for example, see id. at 25–53, 158–91.

49 Schematic outline, supra note 19, sec. 5, Art. 2.

50 Id., sec. 5, Art. 2; sec. 6, Arts. 4, 9 and 14; sec. 7.

51 See, e.g., Quentin-Baxter’s 4th report, supra note 16, at 29–38; Quentin-Baxter’s 3rd report, supra note 16, at 4.

52 Quentin-Baxter’s 4th report, supra note 16, at 53.

53 Schematic outline, supra note 19, sec. 7, Art. 1.4; see id., sec. 3, Art. 3 (“remedial measures”).

54 Id., sec. 2, Arts. 1, 3; see infra text accompanying notes 151–154.

55 Schematic outline, supra note 19, sec. 2, Art. 2.

56 Id., sec. 2, Art. 7. If a source state withholds information for security reasons, it must provide a “clear indication” of the dangers and reveal that it is withholding information.

57 Id., sec. 2, Art. 6.

58 Schematic outline, supra note 19, sec. 2, Art. 2.

59 Quentin-Baxter’s 3d report, supra note 16, at 16.

60 Schematic outline, supra note 19, sec. 5, Art. 4; Corfu Channel, 1949 ICJ Rep. at 18.

61 Quentin-Baxter’s 3d report, supra note 16, at 15 and 16.

62 Schematic outline, supra note 19, sec. 3, Art. 1(c).

63 Id., sec. 3, Art. 2. Portions of section 5 are set out supra at note 25 and accompanying text.

64 Schematic outline, supra note 19, sec. 3, Art. 2.

65 Id.

66 Quentin-Baxter’s 3d report, supra note 16, at 16.

67 Schematic outline, supra note 19, sec. 3, Art. 3.

68 Id., sec. 4, Arts. 1, 2.

69 Id., Art. 3.

70 Quentin-Baxter’s 3d report, supra note 16, at 16.

71 Schematic outline, supra note 19, sec. 8.

72 Id., sec. 1, Art. 3. Quentin-Baxter stated:

The distinctive feature of the present topic is that no deviation from the rules it prescribes will engage the responsibility of the State for wrongfulness, except ultimate failure, in case of loss or injury, to make the reparation that may then be required. In a sense, therefore, the whole of this topic, up to that final breakdown which at length engages the responsibility of the State for wrongfulness, deals with a conciliation procedure, conducted by the parties themselves or by any person or institution to whom they agree to turn for help.

Quentin-Baxter’s 3d report, supra note 16, at 16.

73 Quentin-Baxter’s 3d report, supra note 16, at 48. For Barboza’s views on changes in the approach of the schematic outline introduced by draft Article 1, see Barboza’s preliminary report, supra note 22, at 6.

74 Quentin-Baxter’s 5th report, supra note 16, at 1.

75 Id. at 12–14.

76 Id. at 27–28.

77 UN Doc. A/C.6/39/SR.41, at 18 (1984). But cf. Quentin-Baxter’s 5th report, supra note 16, at 27 (referring to an “equitable allocation of costs”).

78 Quentin-Baxter’s 5th report, supra note 16, at 16.

79 Id. at 1, 6. Draft Article 2 also defines the terms “source State,” “affected State,” “transboundary effects” and “transboundary loss or injury.” Id. at 1.

80 Draft Article 2, id., defines “territory or control” as follows:

“Territory or control”—

In relation to a coastal State, extends to maritime areas in so far as the legal regime of any such area vests jurisdiction in that State in respect of any matter;

In relation to a State of registry, or flag State, of any ship, aircraft or space object, extends to the ships, aircraft and space objects of that State while exercising a right of continuous passage or overflight through the maritime territory or airspace of any other State; and

In relation to the use or enjoyment of any area beyond the limits of national jurisdiction, extends to any matter in respect of which a right is exercised or an interest is asserted.

81 Id. at 2 and Adds. 8–9.

82 Id. at 2.

83 Id.

84 Barboza’s preliminary report, supra note 22, at 6, 8. See also text at note 23 supra.

85 Barboza’s preliminary report, supra note 22, at 7–8.

86 Id. at 8.

87 No discussion was held in the Commission because Barboza had to return to Argentina for medical treatment.

88 Brownlie, I., System of the Law of Nations: State Responsibility (Part I) 50 (1983)Google Scholar. The relationship between state responsibility and international liability was the subject of a conference at The Hague in 1985, the papers from which will be published in 16 Neth. Y.B. Int’l L. (1985).

89 I. Brownlie, supra note 88, at 50 (quoting Brownlie, I., Principles of Public International Law 285 (3d ed. 1979)Google Scholar). See also id. at 436, 443–45.

90 I. Brownlie, supra note 88, at 50.

91 See, e.g., Restatement (Second) of Contracts §90(1) (1979).

92 International law contains one rule that is structurally similar in other respects to the “compound ‘primary’ obligation,” i.e., that relating to state responsibility for injuries to aliens. In each, international wrongfulness does not arise immediately from the activity or act itself, but rather arises only if the injuring state fails to redress the injury. See, e.g., Borchard, , Theoretical Aspects of the International Responsibility of States, in 1 Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht 223, 233–39 (1929)Google Scholar. It is possible that the Commission’s deliberations on international liability will lead to progress in dealing with the vexing issue of state responsibility for injuries to aliens, Lillich, supra note 3, at 31–35, and perhaps even shed light on the perennial question whether international accountability is based on fault or risk. See, e.g., Quentin-Baxter’s preliminary report, supra note 10, [1980] 2 Y.B. Int’l L. Comm’n, pt. 1 at 251–52; Lillich, supra, at 29–33.

93 See Riphagen, supra note 9, at 594–96.

94 See, e.g., Schachter, , The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977)CrossRefGoogle Scholar.

95 The proposition in the text is inherent in the principle of proportionality. See also Chorzów Factory case (Jurisdiction), 1927 PCIJ, ser. A, No. 9, at 21; I. Brownlie, supra note 89, at 457–64.

96 See, e.g., Report of the International Law Commission to the General Assembly, 39 UN GAOR Supp. (No. 10) at 237–38, UN Doc. A/39/10 (1984) [hereinafter cited as 1984 Commission Report].

97 3 R. Int’l Arb. Awards at 1965, 1980.

98 See Quentin-Baxter’s 4th report, supra note 16, at 31.

99 See, e.g., 1980 Commission Report, supra note 1, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 33.

100 Id., [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 34.

101 Id. at 61, 111.

102 Report of the International Law Commission to the General Assembly, 36 UN GAOR Supp. (No. 10), UN Doc. A/36/10 (1981) [hereinafter cited as 1981 Commission Report], reprinted in [1981] 2 Y.B. Int’l L. Comm’n, pt. 2 at 1, 149, UN Doc. A/CN.4/SER.A/1981/Add.1.

103 Riphagen, supra note 9, at 594.

104 See 1980 Commission Report, supra note 1, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 32.

105 See, e.g., 1984 Commission Report, supra note 96, at 237.

106 Provisionally approved draft Articles 3 and 5 on state responsibility might already so provide. See id. at 236.

107 See, e.g., Riphagen, supra note 9, at 597 et seq.; Quentin-Baxter’s 4th report, supra note 16, at 29–30.

108 3 R. Int’l Arb. Awards at 1965, 1980.

109 See Secretariat Survey, supra note 20.

110 See, e.g., North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Judgment of Feb. 20).

111 See, e.g., UN Doc. A/C.6/39/SR.41, at 14–16 (1984) (Mr. Coughley, New Zealand, asserting that Quentin–Baxter’s approach allows the accommodation of strict liability for ultrahazardous activities “within the structure of international law without threatening its unity”).

112 See, e.g., Riphagen, supra note 9, at 582, 584.

113 The term “acid deposition” includes all forms of acid precipitation (rain, snow, mist, fog, dew, frost) as well as the dry deposition of sulfur and nitrogen compounds (SO2, nitrogen oxides, and sulfate and nitrate particles) that form acids when they contact surface water. Wetstone & Rosencranz, , Transboundary Air Pollution: The Search for an International Response, 8 Harv. Envtl. L. Rev. 89 (1984)Google Scholar.

114 See, e.g., Wetstone & Rosencranz, , Transboundary Pollution in Europe: A Survey of National Responses, 9 Colum. J. Envtl. L. 1–2 (1983)Google Scholar. There is some evidence that ozone may be the culprit, instead of acid deposition, with respect to some plant damage. See 128 Sci. News 279 (1985).

115 Wetstone & Rosencranz, supra note 114, at 13–14.

116 See, e.g., Evensen (special rapporteur), First Report on the Law of the Non-navigational Uses of International Watercourses, UN Doc. A/CN.4/367, at 29–46 (1983).

117 Compare Schwebel (special rapporteur), Third Report on the Law of the Non-navigational Uses of International Watercourses, UN Doc. A/CN.4/348, at 9 and 111 (1981), with id. at 124.

118 Quentin-Baxter’s 4th report, supra note 16, at 12–13; Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its 38th Session, UN Doc. A/CN.4/L.369, at 144 (1984) [hereinafter cited as 1983 topical summary].

119 See Secretariat Survey, supra note 20, at 14–18.

120 Barboza’s preliminary report, supra note 22, at 7.

121 See, e.g., Secretariat Survey, supra note 20, at 211.

122 Quentin-Baxter’s 5th report, supra note 16, at 14–15.

123 See 1981 Commission Report, supra note 102, [1981] 2 Y.B. Int’l L. Comm’n, pt. 2 at 147.

124 See infra text accompanying notes 155–159.

125 Quentin-Baxter’s preliminary report, supra note 10, [1980] 2 Y.B. Int’l L. Comm’n, pt. 1 at 265–66.

126 See, e.g., Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its 35th Session, UN Doc. A/CN.4/L.326, at 95, 99 (1981) [hereinafter cited as 1980 topical summary]; 1980 Commission Report, supra note 1, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 160; Quentin-Baxter’s 4th report, supra note 16, at 9.

127 1980 topical summary, supra note 126, at 99.

128 UN Doc. A/C6/36/SR.41, at 7 (1981).

129 UN Doc. A/C.6/37/SR.48, at 9 (1982).

130 UN Doc. A/C.6/37/SR.51, at 4–5 (1982).

131 UN Doc. A/C.6/37/SR.46, at 4, 8, 22 (1982).

132 See, e.g., 1982 Commission Report, supra note 33, at 194–95; 1983 topical summary, supra note 118, at 144; 1982 topical summary, supra note 33, at 43–44; Quentin-Baxter’s 4th report, supra note 16, at 9 and 48.

133 Secretariat Survey, supra note 20; Quentin-Baxter’s five reports are cited supra in notes 10 and 16; see also supra text accompanying notes 26–31.

134 Quentin-Baxter’s 3d report, supra note 16, at 21. Quentin-Baxter mentions the regulation of competition in high seas fishing as an area in which such a “lurking” rule might exist. Quentin-Baxter’s 2d report, supra note 16, Add.2 at 8.

135 See, e.g., Robertson, , Introduction to the Bhopal Symposium, 20 Tex. Int’l L.J. 269 (1985)Google Scholar.

136 See, e.g., Quentin-Baxter’s 3d report, supra note 16, at 9–11.

137 Id.

138 The schematic outline contains several elements that may be intended to benefit developing states, and various Commission and Sixth Committee members have supported such an approach generally. See, e.g., Barboza’s preliminary report, supra note 22, at 8. For a detailed discussion of those elements and of whether developing states should receive favorable treatment, see Magraw, , The International Law Commission’s Study of International Liability for Nonprohibited Acts as it Relates to Developing States, 26 Wash. L. Rev. (forthcoming, June 1986)Google Scholar, which concludes that standards pertinent to international liability should not be reduced, at least in the long run, solely because the source state is a developing state but that developed states should aid developing states in meeting those standards.

139 See, e.g., Westbrook, , Theories of Parent Company Liability and the Prospects for an International Settlement, 20 Tex. Int’l L.J. 321, 322–29 (1985)Google Scholar.

140 See supra text accompanying notes 100–101.

141 See supra text accompanying notes 47–70.

142 L. F. E. Goldie has discussed the distinction between strict liability and absolute liability in the context of environmental damage. See Goldie, , Liability for Damage and the Progressive Development of International Law, 14 Int’l & Comp. L.Q. 1189, 1201–20 (1965)Google Scholar.

143 E.g., International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, UN Regis. No. A14047, reprinted in 64 AJIL 481 (1970).

144 Quentin-Baxter’s 4th report, supra note 16, at 50–51.

145 See Handl, , International Liability of States for Marine Pollution, 21 Can. Y.B. Int’l L. 85 (1983)Google Scholar.

146 Handl adopts C Wilfred Jenks’s approach to ultrahazardous activities. See Jenks, , Liability for Ultra-Hazardous Activities in International Law, 117 Recueil des Cours 105 (1966 I)Google Scholar.

147 See Quentin-Baxter’s 4th report, supra note 16, at 39–44, and 48–55.

148 The rules for delimiting maritime boundaries appear to be moving away from an interest-balancing approach. See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12), reprinted in 23 ILM 1197 (1984).

149 Schematic outline, supra note 19, sec. 2, Art. 1.

150 See generally Kirgis, R., Prior Consultation in International Law (1983)Google Scholar (which contains an excellent study of prior consultation as a possible means of obtaining consideration by decision makers of a state of the external effects of its proposed action, i.e., of effects such as transboundary pollution that are felt primarily by other states). For a discussion of information utilization with respect to international technology transfer, see Ashford & Ayres, , Policy Issues for Consideration in Transferring Technology to Developing Countries, 12 Ecology L.Q. 871, 891–95 (1985)Google Scholar.

151 Schematic outline, supra note 19, sec. 2, Art. 3.

152 1949 ICJ Rep. at 22; see also Trail, Smelter award, 3 R. Int’l Arb. Awards 1905 (1938 & 1941)Google Scholar.

153 The Secretariat Survey, supra note 20, at 31, concludes that the Corfu Channel case held that the standard of due care applicable to a state with respect to the activities of other international actors on its territory is “at least that of a negligence standard in the assessment of injurious impact.”

154 See, e.g., UN Doc. A/C.6/37/SR.51, at 5 (1982).

155 See, e.g., 1982 Commission Report, supra note 33, at 201.

156 See, e.g., Cong. Research Service, Library of Cong., The Nacozari, Mexico, Copper Smelter: Air pollution impacts on the U.S. Southwest 1 (1985).

157 See, e.g., N.Y. Times, Aug. 24, 1983, at A3, col. 4.

158 See, e.g., 1982 Commission Report, supra note 33, at 196.

159 1980 Commission Report, supra note 1, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 33 (draft Arts. 27 and 28).