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State Liability for Accidental Transnational Environmental Damage by Private Persons

Published online by Cambridge University Press:  27 February 2017

Günther Handl
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Extract

A striking feature of our times is that private individuals and corporations are engaging increasingly in activities that may result in significant accidental damage to the transnational environment. The international community has responded to this phenomenon by strengthening the transnational accountability of the private actors. Significant efforts have been made to obtain wide international acceptance of the principle of “equal right of access,” that is, the right of the actual or potential victim of transnational pollution to have recourse, for the purposes of both prevention and compensation, to the national authorities that exercise jurisdiction or control over the private actor concerned. A similar endeavor is discernible towards ensuring, at least in certain cases, that the private actor will maintain minimal financial resources for compensating victims of accidental transnational pollution damage.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 3 , July 1980 , pp. 525 - 565
Copyright
Copyright © American Society of International Law 1980

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References

1 The more exotic activities that come to mind include weather modification, the operation of nuclear fuel cycle facilities, private launchings of satellites and rockets (a particularly interesting example is that of the German OTRAG corporation which until recently conducted launching experiments in Zaire), offshore mineral operations, and future seabed mining activities. As to the creation of transnational risks in general, see Handl, , An International Legal Perspective on the Conduct of Abnormally Dangerous Activities in Frontier Areas: The Case of Nuclear Power Plant Siting, 7 Ecology L.Q. 1 (1978)Google Scholar.

2 Of course, in socialist countries with a socialist system of ownership of the instruments and means of production either in the form of property of the state or of collective farms and other cooperative organizations and their associations (see, e.g., Articles 20-26 of the Fundamentals of Civil Legislation of the USSR and the Union Republics, in Fundamentals of Legislation of the Ussr and the Union Republics 150, 160-63 (1974)), many of the transnationally hazardous activities engaged in by private individuals in market economies are carried on by state enterprises. Compare Uibopuu, , Environmental Law in the Soviet Union-National and International Aspects, in European Environmental Law 433 (Ercman ed. 1977)Google Scholar. Still, a differentiation between categories of “private”and “state”activities is necessary to establish the parameters of state liability. For the state qua state will become transnationally liable only if the activity is attributable to it or implicates it in its capacity as the territorial sovereign. The crucial test for the incurrence of state liability in the latter sense thus remains the “nature of the activity.“

Maintenance of a distinction between the differing forms of “state”liability is important in the context of securing adequate financial resources for compensation. See infra sec. VI; and P.-M. Dupuy, La Responsabilite des etats Pour Les Dommaces D’origine Technologique et Industrielle 125-28 (1976).

3 See, in particular, OECD Council Recommendation on Principles concerning Transfrontier Pollution, Title D(Principle of Equal Right of Hearing), OECD Doc.C(74) 224; Recommendation on Equal Right of Access in Relation to Transfrontier Pollution, OECD Doc. C(76) 55 (Final); Recommendation for the Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, OECD Doc. C(77) 28 (Final). See further Art. 3 of the 1974 Nordic Environmental Protection Convention, reprinted in 13 ILM 591, 592 (1974); and Principle 14 of the Draft 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, UNEP Doc. GC.6/CRP.2 (1978), reprinted in 17 ILM 1091, 1097, 1099 (1978).

4 Examples again include nuclear power activities, the offshore exploration and exploitation of mineral resources, and the maritime transportation of oil. Various related international agreements provide for minimum financial resources to be available to meet accident liabilities:See, e.g., Art. 10 of the 1960 OECD Convention on Third Party Liability in the Field of Nuclear Energy [hereinafter cited as Paris Nuclear Liability Convention], reprinted in 55 AJIL 1083, 1089 (1961); Art. VII of the 1963 Vienna Convention on Civil Liability for Nuclear Damage, reprinted in 2 ILM 727, 737 (1963); Art. VII of the 1969 International Convention on Civil Liability for Oil Pollution Damage [hereinafter CLC], reprinted in 9 ILM 45, 52-55 (1969); the 1971 Convention on the Establishment of an International Fund for Oil Pollution Damage, reproduced in 11 ILM 284 (1972); and Arts. 8 & 9 of the 1977 London Convention on Civil Liability for Oil Pollution Damage from Offshore Operations, reprinted in 16 ILM 1450, 1453 (1977). See also the industriesl’ self-regulation in this respect: The Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution [TOVALOP], reproduced in 8 ILM 497 (1969); Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution [Cristal], reprinted in 10 ILM 137 (1971); and the Offshore Pollution Liability Agreement [OPOL], reprinted in 13 ILM 1409 (1974).

5 “International liability,”as used here, denotes a “secondary”or “functional”international obligation, namely, that of compensation, which arises vis-à-vis the victim state as a result of the polluting state’s violation of its “primary”obligation, i.e., its “responsibility”to ensure that activities under its control or jurisdiction do not cause extraterritorial environmental damage.

6 Conceivably, a lifting of the corporate veil would allow access to the financial resources of those who stand behind the single-ship or single-plant company. However, this strategy offers, at best, a dubious prospect of compensation: national courts might be reluctant to pierce the veil, as it is likely to involve complex and time-consuming proceedings and, particularly in situations of catastrophic transnational damage, may fail to open up adequate funds for the satisfaction of the transnational claims after all.

7 The term “direct state liability”is used here to denote an international legal duty of compensation for transnational injury which, as will become apparent infra, is merely activated upon the miscarriage of a private hazardous activity, i.e., the injurious conduct. It must be seen as founded on the idea that express or implicit state authorization of the creation of transnational risks by private entities entails the controlling state’s international duty of indemnification of any damage suffered extraterritorially. For details, see text at notes 153-156 infra.

8 Island of Palmas Case (Netherlands, United States), 2 R. Int’l Arb. Awards 829, 839. For a similarly concise formulation of the functional notion of territorial sovereignty, see C. Eagleton, The Responsibility of States in International Law 6-7 (1928). See also Suzuki, , A State’s Provisional Competence to Protect Human Rights in a Foreign State, 15 Tex. J. Int’l L. (1980)Google Scholar.

9 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ REP. 16, 54, para. 118.

10 Thus GA Res. 2996 (XXVII), Dec. 15, 1972, 27 UN GAOR (Supp. No. 30) 42. The resolution was adopted by a vote of 112 to 0, with 10 abstentions. It had been approved by the General Assembly’s Second Committee by a vote of 111 to 0, with 11 abstentions. Abstaining votes were cast by Eastern bloc countries. A probably representative explanation of the nonsubstantive grounds for abstention by these countries may be that of the Cuban delegate to the Second Committee, who stated that “his delegation ha[d] abstained from the vote because it had not participated in the Stockholm Conference; however the draft [resolution] contained elements that it unreservedly approved.”UN Doc. A/C.2/SR. 1479, para. 39. Not only must the resolution be viewed as declaratory of existing customary principles of international law, but under the circumstances it might very well signify state practice giving rise to expectations of instant compliance. On instant customary law in general, see, e.g., Jennings, , The United States Draft Treaty on the International Seabed Area-Basic Principles, 20 Int’l Comp. L.Q. 433, 437–40 (1971)Google Scholar. On recommendations as declaratory statements of existing law, see, e.g., Schreuer, , Recommendations and Traditional Sources of International Law, 20 German Y.B. Int’l L. 103, 110–11 (1977)Google Scholar. On the specific issue of the legal relevance of GA Res. 2996 (XXVII), as expressive of well-established state practice, see Handl, , Territorial Sovereignty and the Problem of Transnational Pollution, 69 AJIL 50, 66–72 (1975)Google Scholar. In any event, there should be little doubt as to the resolution’s authoritative contents. For a rare contrary view, see Fitzgerald, in discussion of the International Law Association on Legal Aspects of the Conservation of the Environment, in ILA, Report of the Fifty-Seventh Conference, Madrid 1976, at 564, 573 (1978).

11 Report of the Stockholm Conference, UN Doc. A/CONF.48/14, at 7, reproduced in 11 ILM 1416, 1420 (1972).

12 The most important of these is the Trail Smelter decision, in which the arbitral tribunal held that no State has a 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. 3 R. Int’l Arb. Awards 1905,1965. This pronouncement was made in the face of the fact that, as Read notes, “[t]he subject matter of the dispute did not directly concern the two governments; nor did it involve claims by United States citizens against the Canadian government.” Read, , The Trail Smelter Dispute, 1 Canadian Y.B. Int’l L. 213 (1963)Google Scholar.

13 [1949] ICJ Rep. 4, 22.

14 As to the notion of such priority, see text at notes 31-47 infra.

15 See also Sohn, , The Stockholm Declaration on the Human Environment, 14 Harv. J. Int’l L. 423, 492 (1973)Google Scholar.

16 18 UST 2410, TIAS No. 6347, 610 UNTS 206.

17 Recently adopted by the UN General Assembly and opened for signature; text in Report of the Comm. on the Peaceful Uses of Outer Space, Annex II, 34 UN GAOR (Supp. No. 20) 33, UN Doc. A/34/20 (1979), and 18 ILM 1434, 1439 (1979).

18 With regard to damage caused by a space object on the surface of the earth or to aircraft in flight, see Art. II of the convention, 24 UST 2389, TIAS No. 7762, reproduced in 10 ILM 965 (1971)

19 Art. 1, para. (c)(ii).

20 For example, Art. 24 of the Convention on the High Seas, 450 UNTS 82, 13 UST 2312, TIAS No. 5200. Compare in this context Brownlie, , A Survey of International Customary Rules of Environmental Protection, 13 Nat. Resources J. 133–84 (1973)Google Scholar.

21 See, e.g., Art. 15 of the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping of Ships and Aircraft, reprinted in 11 ILM 262, 264 (1972); Art. VII of the 1972 London Dumping Convention, reprinted in id. at 1291, 1300; Arts. 1, 3, 4, and 5(1) of the 1973 International Convention for the Prevention of Pollution from Ships, reprinted in 121d. at 1319, 1320-23 (1973); and Art. 12 of the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources, reprinted in 13 id. at 352, 360 (1974).

22 Case Concerning the Factory at Chorzow (Claim for Indemnity) (Merits), [1928] PCIJ, ser. A, No. 17, at 29.

23 Revised Informal Composite Negotiating Text for the Ninth Session, UN Doc. A/CONF.62/WP.10/Rev. 2 (1980).

24 Para. 1.

25 Art. 139, para. 1 and Art. 263, para. 2. For further details, see infra at p. 541.

26 See, e.g., the 1969 CLC, which channels liability to the “owner”of the vessel causing the oil spill. Art. XVIII of the CLC, supra note 4.

27 See Ann. II to the 1960 Paris Nuclear Liability Convention and Art. XVIII of the 1963 Vienna Convention on Civil Liability for Nuclear Damage, supra note 4.

28 Reprinted in 57 AJIL 268, 270 (1963).

29 Supra note 4.

30 It would seem that if states become liable vis-à-vis private claimants on a subsidiary basis, they must a fortiori be liable internationally, i.e., vis-à-vis the victim state. As to the subsidiary function of “direct state liability,”see infra sec. VI.

31 An example of a most dramatic (unilateral) extension of coastal state jurisdiction is Canada’s enactment of the Arctic Waters Pollution Prevention Act in 1970, in which Canada claimed jurisdiction to prescribe standards of vessel construction, navigation, and operation and, if necessary, to ban passage of any foreign vessel in the area concerned, namely, up to 100 miles seaward, north of the 60th parallel. Can. Rev. Stat, c.2 (1st Supp. 1970), reproduced in 9 ILM 543 (1970). A coastal state’s exercise of such jurisdictional powers has since been vindicated with regard to pollution prevention and control in ice-covered areas. Art. 234 of the ICNT/ Rev. 2. For more details on present coastal state jurisdiction over prescription and, especially, enforcement, see text at note 36 infra.

32 “The issue becomes not whether avoidance is worth it, but which of the parties is relatively more likely to find out whether avoidance is worth it.” Calabresi, & Hirschoff, , Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055, 1060–61 (1972)Google Scholar. The authors suggest this test, it is true, to determine which party—as between injurer and victim—ought to bear the costs of a given accident. Nevertheless, the basic rationale would also seem to have direct relevance for the very allocation of liability in a situation in which more than one state can be presumed to exercise some control over the injurious activity.

33 One of the most recent multilateral environmental protection conventions, the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution, illustrates perfectly that a refined and detailed conception of transnational liability has not yet evolved. In a formulation that is rather representative of many other similar conventions, Article XIII instructs states to “co-operate in the formulation and adoption of appropriate rules and procedures for the determination of: (a) civil liability … ; and (b) liability … for damage resulting from the violation of obligations under the present Conventions and its protocols.” Printed in 17 ILM 511 (1978). See generally, infra sees.III - V .

34 Etudes des mesures internationales les plus aptes a prevenir la pollution des milieux maritimes, Institut de Droit International, 53 Annuaire 255 (1969 II).

35 See, in particular, the debate on Article I of the proposed resolution, id. at 278-87. For a similar awareness of the problem, see Treves, , Les Tendances ré centes du droit conventionnel de la responsabilit é et le nouveau droit de la mer, 21 Annuaire Francais de droit Int’l 765, 782–83 (1975)Google Scholar. Compare Oda in the debates of the Third Committee of the Third Law of the Sea Conference on the preservation of the marine environment, UNCLOS III, 2 Official Records 370, para. 7 (1974).

36 It is true that in 1974, in the Fisheries Jurisdiction cases the ICJ held that the “various proposals and preparatory documents produced in this framework [of UNCLOS III] … must be regarded as manifestations of the views and opinions of individual States and as vehicles of their aspirations, rather than as expressing principles of existing law.”Fisheries Jurisdiction case (United Kingdom v. Iceland), Merits, [1974] ICJ Rep. 3, at 23, para. 53. More recently, in 1977, the arbitral tribunal in the delimitation between the United Kingdom and France of disputed continental shelf concluded as to the legal significance of the then current version of the ICNT: In the opinion of the Court … neither the records of the Third United Nations Conference on the Law of the Sea nor the practice of States outside the Conference provide any such conclusive indication that the Continental Shelf Convention of 1958 is today considered by its parties to be already obsolete and no longer applicable as a treaty in force. The United Kingdom of Great Britain and Northern Ireland and the French Republic Delimitation of the Continental Shelf, Decision of 30 June 1977, Cmnd. 7438, Misc. No. 15 (1978), cited from 18 ILM 397, 417, para. 47 (1979). Since then, the ICNT has been further refined and clearly has become more representative of strongly held expectations of the international community at large. The sections of the ICNT here cited, of course, are in themselves indicative of relevant state practice. For a proper perspective on the international legal significance of the records of such international conferences, etc., see, e.g., Jennings, , Recent Developments in the International Law Commission: Its Relation to the Sources ofInternational Law, 13 Int’l & Comp. L.Q. 385 (1964)Google Scholar; and C. Parry, The Sources and Evidences of International Law 19-24 (1965). Thus, the following statement on the 1969 Vienna Convention on the Law of Treaties is decidedly off the point: “[The convention—though widely quoted—] is not to be deemed a recognized manifestation of international law unless one would agree to put a premium on laxity and imprecision… .” Bos, , The Recognized Manifestations of International Law: A New Theory of “Sources,” 20 German Y.B. Int’l L. 9, 65 (1977)Google Scholar. In any event, practice outside the conference, namely, in the form of national legislation, appears to be supportive of our claim of existing wide coastal statejurisdiction. Indeed, in some instances of practice, national claims to jurisdiction clearly exceed the limits of what in the ICNT emerges as the legitimate exercise of jurisdiction. An example in point is the U.S. Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. §§1251-1376 (1977)). For a good overview of the issues involved, see Note, , The Clean Water Act of 1977: Expanded Competence overVessel-Source Pollution, 18 Va. J. Int’l L. 289 (1978)Google Scholar; N.Y. Times, Jan. 6, 1978, at 1, col. 4; and 1 Int’l Environmental Rep. 66 (1978). The ICNT provisions cited above thus may justifiably be taken to represent an internationally valid allocation to coastal states of jurisdiction over foreign vessels passing through their territorial sea.

37 See, in particular, ICNT Art. 94, para. 4(b) and (c).

38 To be sure, verification of a ship’s compliance with design, construction, and equipment standards is largely entrusted to so-called classification societies, such as Lloyd’s Register of Shipping or the American Bureau of Shipping. But the safety of construction and of equipment certificates now required under the 1974 Convention for the Safety of Life at Sea (SOLAS) and the international oil pollution prevention certificate, which will become obligatory pursuant to the 1973 Convention for the Prevention of Pollution from Ships (MARPOL), are issued under the authority of the flag state, which assumes full responsibility for the certificate. See Regulation 5 of Annex I to the 1973 MARPOL Convention, supra note 21, at 1341; and Regulation 6 of the 1960 SOLAS Convention, 16 UST 187, TIAS No. 5780. Basic flag state enforcement jurisdiction has in this respect been very clearly reaffirmed in Articles 94(3) and (4), and 217(1), (2), and (3) of the ICNT. Generally speaking, only flag states may thus enforce compliance by vessels of their flag with the aforementioned standards. See also Regulation 6 of the Annex to the 1978 Protocol relating to the 1974 SOLAS Convention, IMCO Doc. TSPP/CONF/ 10/Add. 1, reproduced in 17 ILM 583 (1978). As to subsidiary port state enforcement jurisdiction, see infra note 40.

39 Quite obviously, the problem has been one of effective enforcement by the flag states. R. M’Gonigle & M. Zacher, Pollution, Politics and International Law: Tankers at Sea 338 (1979). See also OECD Study on Flags of Convenience, in 4 J. Maritime L. & Com. 231 (1972-73); Report on I. The Best Means of Preventing Accidents to Shipping and Consequential Marine and Coastal Pollution, and II. Shipping Regulations (“Bruce Report“), [1978-79] Eur. Parl. Doc. (No. 555) 15, para. 24 (1978); and Osielie, , Flags of Convenience Vessels: Recent Developments, 73 AJIL 604 (1979)Google Scholar. The improper enforcement by flag states of safety and pollution prevention standards is not limited to flags of convenience states alone; for a good overview, see R. M’Gonigle & M. Zacher, supra, at 218-31.

40 As between coastal and flag states, this is certainly true. See, e.g., summary of Quincy Wright’s intervention in the debates on Etude des mesures Internationales, supra note 34, at 286: “II admet que la responsabilite de l’Etat du pavilion doit etre affirmee avant celle de l’Etat riverain. Les dispositions stipulees … (construction des navires, instruments de navigation, etc.) doivent etre appliquees par l’Etat du pavilion plus encore que par l’Etat riverain.”Expansive coastal state enforcement jurisdiction in respect of vessel standards has been strongly resisted both at IMCO conferences and at UNCLOS III, on the persuasive grounds that such a conferment of powers on the coastal state would result in unacceptable economic burdens on shipping due to the delays suffered by vessels subjected to coastal state inspections. On the other hand, port state enforcement jurisdiction with regard to vessel design, construction, equipment, and manning standards, seems to be unnecessarily circumscribed by provisions upholding basic flag state jurisdiction (see supra note 38) and providing, inter alia, for port state inspection only where “there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of [the required certificates].“ ICNT Art. 217, para. 3; Art. 5, para. 2 of the 1973 MARPOL Convention, supra note 21, at 1322-23; and Regulation 19 of the 1960 SOLAS Convention, supra note 38, at 234. Compare Art. 4 of the 1976 ILO Convention concerning Minimum Standards in Merchant Ships, No. 147.

41 6 R. Int’l Arb. Awards 120.

42 Id. at 129-30.

43 Id. at 130.

44 Id. at 131.

45 See Report of the International Law Commission on the work of its thirty-first session, 34 UN GAOR, Supp. (No. 10) 261, UN Doc. A/34/10 (1979).

46 Note in this context that Article 31 of the ICNT imposes “responsibility”on the flag state for damage caused by a warship or other government ship operated for noncommercial purposes. As the flag state’s control over its naval and other noncommercial vessels remains unaffected by coastal state enforcementjurisdiction, and as consequently the former presumably continues to exercise “effective control,”it is also likely to be liable to third parties in the event of damage resulting from nonobservance of the latter’s laws and regulations concerning passage. See also Article 42(5) for a similar affirmation of the relevance of “effective control.“

47 This situation must be distinguished from the case where a joint venture is involved, which may entail joint and several liability of the states concerned. For further discussion, see Goldie, , General Review of International Environmental Law: A Survey of Capabilities, Trends and Limits, in Hague Academy of International Law, Colloquium 1973: The Protection of the Environment and International Law 25, 88–91 (Kiss, C. ed. 1975)Google Scholar [hereinafter cited as 1973 Hague Colloquium].

48 De Aréchaga, , International Law in the Past Third of A Century, 159 Recueil Descours 1, 272 (1978 I)Google Scholar; see also Hardie, in the discussions in the International Law Association on Legal Aspects of the Conservation of the Environment, ILA, Report of the Fifty-Fifth Conference, New York 1972 [hereinafter cited as ILA 1972 Report] 481,482 (1974); and Dupuy, , International Liability of States for Damage caused by Transfrontier Pollution, in OECD, Legal Aspects of Transfrontier Pollution 345, 357 (1977)Google Scholar.

49 See, e.g., Sohn,supra note 15, at 485-93; and Handl, , Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited, 13 Canadian Y.B. Int’l L. 156, 158–62 (1975)Google Scholar. Compare Dupuy, supra note 48, at 356-59.

50 While the general standard of international liability appears to be clearly based on fault—not in the sense of culpable negligence or malice on the part of the individual state agent but in the sense of a violation of an international obligation incumbent upon the state—the argument that, as a general principle of international law, a state’s strict liability flows from any infliction of significant transnational environmental damage lingers on. For a most recent resurrection of this view, see J. Schneider, World Public Order of the Environment: Towards an International Ecological Law and Organization 163-67 (1979); see further Stein, , Legal Problems and Institutional Aspects of Transfrontier Pollution, in OECD, Problems in Transfrontier Pollution 285, 290 (1974)Google Scholar; and Statement by the Canadian Delegation on State Responsibility in Cases of Transfrontier Pollution, OECD Doc. ENV/TFP/78.5 at 5 -6 (1978). Compare Hendewerk, , Liability for Transfrontier Environmental Damage in the Federal Republic of Germany, in Legal Protection of the Environment in Developing Countries 243, 262 (Pietro, Carrillo & Nocedal, eds., 1976)Google Scholar: “there exist no definite rules concerning the measure of liability (negligence or liability wihout fault) …“; and Jessup, in the ILA discussions, supra note 48, at 468, 472-73.

51 See UN Doc. A/CONF.48/P.C12, Ann. 15, para. 65 (1971).

52 Stockholm Declaration, supra note 11, at 1420.

53 See Handl, supra note 49, at 161; and Sohn, supra note 15, at 485-96.

54 See, e.g., Fauchille, in the debates in the Institute of International Law on Responsabilitédes Etats à raison des domrnages soufferts par des é trangers en cos d’emeute ou guerre civile, IDI, 18 Annuaire 233, 234-37 (1900): and G. Scelle, Droit International Public 695-702 (1944). For further details and ageneral review of this evolution, see P.-M. Dupuy, supra note 2, at 1 5 - 24; and J. Goldschmidt, Das Problem Der Völkerrechtlichen Gefäahrdungshaftung unter BerÜcksichtigung des Atom- und Weltraumrechts 123-42 (59 Studien zum Intern. Wirtschaftsrecht u. Atomenergierecht, 1978).

55 See, e.g., Goldie, supra note 47, at 70; J. Schneider, supra note 50.

56 For a detailed exposition, see Handl, supra note 49, at 167-68. See further Weiss, , Who Pays for Weather Modification Damage, 4 Environmental L. & Pol’y 22, 23 (1978)Google Scholar; Pacteau, , Les Problèmes juridiques internationaux de la pollution, in Les Aspects Juridiques De L’environnement 141, 166 Google Scholar (Actes du colloque de la section beige de l’lnstitut International de Droit d’Expression Francaise, Namur, October 25-26, 1974, 1975); Kiss, , Problèmes juridiques de la pollution de I’air, 1973 Hague Colloquium Google Scholar, supra note 47, at 145, 172; C. Kiss, Survey of Current Developments in International Environmental Law 46 (IUCN Environmental Policy & Law Paper No. 10, 1976); and G. Tesauro, L’inquinamento Marino Nel Diritto Internazionale 156-57 (1971). Contra, however, Jenks, , Liability for Ultra-Hazardous Activities in International Law, 117 Recueil Des Cours 99, 122 (1966 I)Google Scholar.

57 For details, see Handl, supra note 49, at 168-70.

58 Id. at 165-67.

59 See, e.g., de Arèchaga, , International Responsibility, in Manual of Public International Law 531, 537 (Stfrensen, ed. 1968)Google Scholar; Bleicher, , An Overview of International Environmental Regulation, 2 Ecology L.Q. 1, 28 (1972)Google Scholar; Levy, , La Responsabilitè pour omission et la responsabilitè pour risque en droit international public, 65 Rev. GÈn. Droit Int’l Pub. 744, 747 (1961)Google Scholar; Hostie, , The Corfu Channel Case and International Liability of States, in Liber Amicorum of Congratulations for Algot Bagge 89, 92 (1964)Google Scholar; L. Oppenheim, 1 International Law 343 (8th ed. Lauterpacht, 1955); I. Brownue, Principles of Public International Law 426 (2d ed. 1973).

60 See [1949] ICJ Rep. 22-23.

61 J. Schneider, supra note 50, at 165.

62 Id. at 166 (emphasis added). See also Schneider, in Joint Proceedings of the Canadian Council on International Law (6th Annual Conference) and Canada-United States Law Institute (1st Annual Conference), 1 Canada-United States L.J. 106 (1978).

63 The actual reference in the U.S. Secretary of War’s communication of approval to the Canadian Government—an essential part of the intergovernmental agreement permitting the construction of Gut Dam—was to “property owners of Les Galops Islands, or … any other citizens of the United States“; cited in report by the Chairman of the U.S. Foreign Claims Settlement Commission of May 4, 1965, reproduced in 4 ILM 473 (1965).

64 This follows clearly from Article 2 of the U.S. Secretary of War’s communication, supra note 63. See also J. Ballenegger, La Pollution en Droit International 207 (1975).

65 See report by the Chairman, supra note 63, at 474.

66 “They [the Canadian Government] had accepted liability in effect and were only arbitrating damages.”Beesley, 1973 Hague Colloquium, supra note 47, at 497. Specifically, the tribunal determined only which class of persons was entitled to compensation under the indemnity provision of the original agreement; whether a time limit applied to the Canadian obligation; and finally, questions of causation and of the quantum of damages relating to the outstanding U.S. claims under consideration. Decision of the Tribunal of Feb. 12, 1968, excerpted in Canada-United States Settlement of Gut Dam Claims (September 27, 1968): Report of the U.S. Agent Before the Lake Ontario Claims Tribunal, reproduced in 8 ILM 118, 133-40 (1969).

67 “Lawful per se,”as used here, denotes conduct that is not ab initio contrary to international law, because not violative of a specific conduct-related norm. Such conduct may, of course, become unlawful if it produces significantly harmful extraterritorial environmental effects. An activity lawful per se thus is not subject to a neighboring state’s veto in the absence of evidence of such effects. See the Lac Lanoux case, 24 ILR 101, 132. On the issue of the legality of creating transfrontier risks in general, see Handl, supra note 1.

68 For an exactly analogous treaty arrangement, see, e.g., the 1950 State Treaty between the Grand Duchy of Luxembourg and the Land Rhineland-Palatinate in the Federal Republic of Germany concerning the Construction of a Hydro-Electric Power-Plant on the Sauer (Sûre) at RosportyRalingen, reprinted in 11 Int’l Protection of the Environment (Rüster & Simma eds., 1977).

69 See, e.g.,]. Ballenegger, supra note 64, at 231-32; Morin, 1973 Hague Colloquium, supra note 47, at 325; Handl, supra note 49, at 170-77; and Lester, , River Pollution in International Law, 57 AJIL 828, 850–51 (1963)Google Scholar. This appears also to be the Canadian Government’s position: Under international law every State has a duty to prevent, as far as possible, its own nationals and foreign nationals within its territory from committing injurious acts against other States. A State which does not comply with this duty, either intentionally or maliciously or through culpable negligence is guilty of an international offence for which it has to bear original responsibility… . “[A] State must, according to international law, bear vicarious responsibility for such injurious acts of private individuals as it is unable to prevent.”This vicarious responsibility is unrestricted for official acts of administrative officials and military and naval forces; but for acts of private persons it is only relative. The sole duty of the State is to exercise due diligence to prevent internationally injurious acts on the part of private persons. Memorandum of the Legal Division of the Department of External Affairs, reprinted in J. Castel, International Law 1072 (3d ed. 1976) (emphasis added). For an unpersuasive reading of this memorandum as affirming the direct liability of the controlling state, see Weiss, supra note 56, at 24. The above Canadian position is further refined in the Statement of the Canadian Delegation, supra note 50, at 7, in which express reference was made to the exceptional extraconventional incidence of strict state liability.

70 See Art. II, together with Art. I l l, para. 1 of the resolution on “The Pollution of Rivers and Lakes ánd International Law,”adopted at the Institute’s Athens session, Sept. 4-13, 1979.

71 E.g., in Note by the Secretariat on the International Responsibility of States in Relation to Transfrontier Pollution, OECD Doc. ENV(76) 3, at 4 (1976); Dupuy, Due Diligence in the International Law of Liability, OECD Doc. ENV/TFP/76.11, also in OECD, Legal Aspects of Transfrontier Pollution 369 (1977); and Dupuy & Smets, International Liability for Damage Caused by Transfrontier Pollution, OECD Doc. ENV/TFP/77.14, at 2 (1977).

72 Article 23, “Breach of an international obligation to prevent a given event,”reads as follows: “When the result required of a State by an international obligation is the prevention, by means of its own choice, of the occurrence of a given event, there is a breach of that obligation only if, by the conduct adopted, the State does not achieve that result.”Report of the International Law Commission, supra note 45, at 245. For the Commission’s commentary, see [1978] 2 Y.B. Int’l L. Comm’n, pt. 2, at 81-86.

73 As to the theoretical legal implications of such a transnational compensation arrangement, see infra sec. VI.

74 See the 1967 Treaty on Outer Space, supra note 16; the 1972 Outer Space Liability Convention, supra note 18; and the 1962 Nuclear Ship Liability Convention, supra note 28; as well as the 1963 Vienna Nuclear Liability Convention, supra note 29.

75 Para. 1 of ICNT Art. 139.

76 The key section of Article 139, paragraph 1 reads: “Without prejudice to applicable principles of international law and article 21 of annex II damage caused by the failure o£ a State Party to carry out its responsibilities under this Part shall entail liability”(emphasis added). Article 21 of Annex II speaks of “liability for wrongful damage”of the contractor, an obvious indication of a fault standard.

77 Paras. 1 and 3, respectively.

78 GA Res. 2749 (XXV), reproduced in 10 ILM 220 (1971).

79 Id. at 223.

80 For further details, see, e.g., Ambassador-at-Large E. Richardson, at plenary meeting of UNCLOS III, September 15, 1979, cited in Oxman, , The Third United Nations Conference on the LawoftheSea: The Seventh Session(1978), 73 AJIL 1, 35 n.1 19(1979)Google Scholar; The Status of the ThirdUnited Nations Conference on the Law of the Sea: Hearing Before the House Comm. on Foreign Affairs, 96th Cong., 1st Sess. 58-60 (1979); and Vicuna, Orrego, Les Legislations nationales pour I’exploitation des fonds des mers et leur incompatibility avec le droit international, 24 Annuaire Franciais de droit Int’l 810 (1978)Google Scholar.

81 Oxman, note 80 supra, at 35 n.1 19.

82 UN Doc. A/AC.138/SC.II/L.7 (1972).

83 Provision 63, Formula B, Main Trends in the Second Committee, UN Doc. A/CONF.62/C.2/ WP. 1, at 39 (1974). See also the corresponding Provision 65 for overflight of foreign-registered aircraft; id. at 39-40.

84 For example, an earlier version of the responsibility and liability provision for damage from national activities in the seabed Area did not contain the qualifying rider of the present Article 139; text at note 76 supra. Instead, it simply stipulated that “[d]amage caused by such activities shall entail liability on the part of the State . . ‘ -. concerned, in respect of activities which it undertakes itself or authorizes.”Art. 17, para. 1 of Part I of the Informal Single Negotiating Text, UN Doc. A/CONF.62/WP.8 (1975), reproduced in 14 ILM 682, 687 (1975).

85 Note, for example, the view expressed by the French delegate: His delegation saw no reason to depart from the conventional rules on State liability in international law, particularly civil liability for acts of nationals in the performance of their activities. That problem should be dealt with in specific conventions, which, like the 1969 Brussels Convention, ensured victims the compensation they needed to repair the damage without implicating the State. Fourth meeting of the Third Committee, UNCLOS III, 2 Official Records 330, para. 33 (1975).

86 ld. at 321, para. 74.

87 As to this threshold notion, see the Trail Smelter decision, supra note 12; and generally, G. Handl, Hazardous Activities in Frontier Areas: International Legal Restraints on Significant Transnational Risk-Creation, OECD Doc. ENV/TFP/78.14, at 3, 6 -7 (1978). 88 Frequently, the reasonableness or due diligence standard is reduced to the notion that, as between polluting and polluted states, the resource allocation must be efficient, that is, that the costs of pollution prevention and of pollution damage should be in balance. While this goal of maximizing the aggregate utility of the resource remains an essential element of

88 reasonableness,”the latter implies additional relevant factors such as fairness and justice. For details, see Handl, , The Principle of “Equitable Use”as Applied to Internationally Shared Natural Resources: its Role in Resolving Potential International Disputes over Transfrontier Pollution, 14 Rev. Belge Droit Int’l 40, 46–47 (1978-79)Google Scholar; and OECD Doc. ENV/TFP/77.19.

89 See supra sec. III. Contra, but unpersuasive, Wildhaber, , Die Oldestillerieanlage Sennwald und das Völkerrecht der grenzuberschreitenden Luftverschmutzungen, 21 Annuaire Suisse De Droit Int’l 97, 117 (1975)Google Scholar; and Jenks, supra note 56.

90 According to the parliamentary statement, infra note 92, the offer extended only to payment of clean-up operations. In any event, a careful analysis of the reaction by the state to which the claim for compensation was addressed is crucial to determining the probative value of a given instance of state practice. Handl, supra note 1, at 14-15, and cases cited; and Kirgis, , Technological Challenge to the Shared Environment: United States Practice, 66 AJIL 290, 295 (1972)CrossRefGoogle Scholar.

91 See 3 International Canada 93 (1972); and N.Y. Times, June 10, 1972, at 36, col. 5.

92 Statement by the Secretary of State for External Affairs of June 8, 1972, in the House of Commons, summarizing the text of the note, quoted in 3 Internat’l Canada 93 (1972).

93 Statement of June 8, 1972, in the House of Commons, excerpted in 11 CANADIAN Y.B. Int’l L. 333, 334 (1973) (emphasis added).

94 Protokoll iiber die ausserordentliche Tagung der gemischten Murkommission vom 15. April 1959 [Memorandum concerning the Special Session of the Mixed Commission for the Mura], BKA [Federal Chancellery]: GZ 106.454-2a/59; BMfLuF [Federal Ministry of Agriculture and Forestry]: Zl. 46.709-IV/9/59.

95 Ibid.

96 396 UNTS 75.

97 The operators, though public legal corporations, represent clearly “private”entities for our purposes. This is also indicated by the very wording of the settlement: “Upon compliance with the obligations pursuant to para. 1 [the delivery of paper] and para. 2 [payment of 300,000 Austrian shillings], all Yugoslavian claims against the Republic of Austria as well as other Austrian legal entities shall be deemed satisfied and completely compensated.”Protokoll, supra note 94 (translation provided; emphasis added). In any event, in applying the activity test, supra note 2, one would have to conclude that whether or not the acting corporation must be considered an agency or instrumentality of the state, the conduct could not directly engage the state’s liability qua territorial sovereign. See also the ILC’s commentary on Art. 11 (conduct of persons not acting on behalf of a state) of its draft articles on state responsibility, [1975] 2 Y.B. Int’l L. Comm’n 71.

98 This resolution of the dispute clearly contradicts Prof. Berber’s draft resolution, Article 7 of which provides for state liability only in the case of negligence. Report on Flood Control, in ILA 1972 Report, supra note 48, at 43, 87-88 (1974).

99 As to the basic applicability of the “control-responsibility”function to flag statejurisdiction, see text at notes 14-15 supra ; Caflisch, , Some Aspects of Oil Pollution from Merchant Ships, 4 Annales D’etudes Internationales 213, 228 (1973)Google Scholar; Morin, 1973 Hague Colloquium, supra note 47, at 342-43; Fleischer, , Pollution from Seaborne Sources, in 3 New Directions in the Law of the Sea 78, 98 (Churchill, , Simmonds, , & Welch, eds., 1973)Google Scholar; and Stein, , Responsibility and Liability for Harm to the Marine Environment, 6 Ga. J. Int’l & Comp. L. 41, 53 (1976)Google Scholar. As to Canada’s invocation of port state liability for calling foreign vessels, see the Cherry Point incident, text at note 93 supra. By contrast, only 2 years earlier, in discussing the legal implications of the grounding of the Liberian-registered oil tanker Arrow off the coast of Nova Scotia, and the resulting pollution of adjacent Canadian waters, the Canadian Minister of Justice had noted: “The position is … that we have adequate controlling and remedial measures at our disposal. What we do not have … is a means through which to attribute liability in the event of accidents of this kind.”1 Internat’l Canada 46 (1970). This statement was made, however, before the 1972 Stockholm Conference expressly confirmed general state responsibility for transnational pollution damage.

100 Per telephone conversation with Arthur MacKenzie, director of the Tanker Advisory Center, New York.

101 See The (London) Times, Dec. 2, 1971, at 8, col. 1; and Rousseau, , Chronique des Fails Internationaux, 79 Rev. Gen droit Int’l Pub. 842 (1975)Google Scholar.

102 It should be noted, however, that in particular circumstances, for example, when inadequate compensation of transnational pollution victims might have had a detrimental impact on the flag states’ interests, e.g., on the right of navigation through international straits, flag states either have themselves indicated willingness to assume full liability for vessel-source pollution or have provisionally been termed “liable”therefor. An example of the former is the Japanese Government’s reported willingness to compensate for pollution damage caused by the grounding of the Japanese supertanker SAowaMaru in the Straits of Malacca in 1975. Reference in Star-News (Singapore), Jan.17, 1975, reprinted in Tankers and the Marine Environment: Hearings before the Nat’l Ocean Policy Study of the Senate Comm. on Commerce ﹛Part 1 ), 94th Cong., 1 st Sess. 140 (1975); and N. Mostert, Super Ship 351 (Warner Books, 1975). An example of the latter is the Malaysian Government’s initial reaction to the oil spill caused by the Philippine flag vesselDiego Silang upon collision with 2 other vessels in the Straits of Malacca. See Exhibit A: Tanker Advisory Center, New York, N.Y.: Worldwide Tanker Casualty Returns—Third Quarter 1976, in Recent Tanker Accidents, Hearings before the Senate Comm. on Commerce (Part 1 ), 95th Cong., 1st Sess. 239, 247 (1977).

103 Besides Dome Petroleum, Hunt International and Gulf Oil had requested drilling authorization. See N.Y. Times, June 7, 1977, at 59, col. 2; and talk by Martin Low, Department of Justice (Canada) on “International Conflict Avoidance: Canada-United States Co-operation in Matters of Transfrontier Pollution,”given at Cornell Law School, March 27, 1979.

104 7 Internat’l Canada 84-85 (1976); and Pimlott, , The Arctic Offshore Gamble, 38 Living Wilderness 16 (1974)Google Scholar. The U.S. Government’s intervention in this matter is explained not only by the threat of potentially disastrous transboundary effects on U.S. environmental resources, but also by the fact that any mishap suffered by Dome Petroleum in its offshore drilling operations, whose commencement the United States considered somewhat premature given the state of the technology, was likely to have a significantly adverse impact on public acceptance of similar offshore programs planned by the U.S. and the Alaskan Governments. As to the domestic controversy surrounding the auction of drilling rights in the waters off the North Slope of Alaska, see N.Y. Times, Nov. 26, 1979, at A18, col. 3, and Dec. 9, 1979, at 26, col. 1. As to the ensuing multiple litigation: 10 Environmental Rep. 1569(1979); and N.Y. Times, Jan. 23, 1980, A12, col. 4.

105 The Mestral, , Pollution Issues: Coopèration et règlement des diffèrends Canada-Etats Unis dans le domaine de la protection de I’environnement, in Joint Proceedings, supra note 62, at 78, 94 Google Scholar. See also statement by the Canadian Parliamentary Secretary to the Minister of Fisheries and the Environment, in the House of Commons, May 17, 1977, excerpted in 15 Canadian Y.B. Int’l L. 393-94 (1978); and compare de Mestral, , The Prevention of Pollution of the Marine Environment Arising from Offshore Mining and Drilling, 20 Harv. Int’l L.J. 469, 491 (1979)Google Scholar.

106 The resolution in 1973 of the longstanding Colorado salinity problem appears to have been characterized as another example of a controlling state’s acceptance of strict liability for private conduct causing transnational pollution. See Andrassy (1973 Hague Colloquium, supra note 47, at 496), who, in connection with a U.S. obligation to compensate Mexico (and Austria’s indemnification of Yugoslavia in the Mura case, text at notes 95-98 supra), noted that “[j]e crois qu’il faut dire que ces devoirs sont plus stricts que ce qui parassait être dit par certains orateurs.“

This view of the Colorado salinity settlement, however, is problematical. If one accepts that in the 1973 agreement the United States did indeed undertake to render compensation to Mexico—and evidence to this effect is persuasive; see Article 7 of Minute No. 242, Permanent and Definitive Solution to the International Problem of the Salinity of the Colorado River, TIAS No. 7708, reprinted in 12 ILM 1105 (1973)—there nevertheless remains the fact that Mexico’s view of the matter is that the United States had violated its obligations under the 1944 agreement. See, e.g., Gonzales-De-Leon, , The Mexican Position: National and International Considerations, 15 Nat. Resources L. 109 (1975)Google Scholar; and Lobato, Legal Considerations, Interpretations and Projections of Minute 242, id. at 35, 37—40. Compare Furnish & Ladman, The Colorado River Salinity Agreement of 1973 and the Mexicali Valley, id. at 83, 95-96; and generally, Brownell, & Eaton, , The Colorado Salinity Problem with Mexico, 69 AJIL 255 (1975)Google Scholar.

107 Text in 2 Legal Problems Relating to the Non-Navigational Uses of International Watercourses 243, UN Doc. A/CN.4/274 (1974).

108 Id. at 248.

109 Council of Europe, Committee of Ministers, Doc. CM(70) 134, reproduced in id. at 249-50.

110 Thus Hendewerk, supra note 50, at 265.

111 1974 Draft European Convention for the Protection of International Watercourses against Pollution, CECA Doc. 3417, at 3 (1974).

112 Thus, as to international liability, Article 21 merely defers to “rules applicable under general international law to any liability of States for damage caused by water pollution.” Id. at 11. And see Draft Explanatory Report on the European Convention for the Protection of International Watercourses against Pollution, CECA Doc. 3417 Addendum 27-28 (1974).

113 See Draft Explanatory Report, supra note 112, at 27-28.

114 Supra note 70. The International Law Commission’s study of the law of the nonnavigational uses of international watercourses, by contrast, has not yet proceeded beyond consideration of the very general organizational principles. Report of the International Law Commission, supra note 45, at 470-71.

115 Resolution of the Institute, supra note 70.

116 See Island of Palmas case, supra note 8, at 839, 840. Compare Brownlie, who refers to

117 relatively strict liability”as applicable, inter alia, to “situations not involving acts of officials but which a normal government [sic] would be expected to control.” Supra note 20, at 180. The liability standard thus advocated, of course, remains based on fault; the crucial test remains that of “due diligence.“ 117 As to the established notion of “objective responsibility”used in this quotation, see, e.g.. Note by the Secretariat, supra note 71, at 3-4: “the factor taken into consideration is no﹜ the (subjective) behaviour of a State, but the (objective) occurrence of damage outside the area under its jurisdiction.”This definition also approximates that of Anzilotti, who, it appears, first termed the consequence of a violation of international law “objective responsibility.”D. Anzilotti, 1 Corso di Diritto Internazionale 409-10 (4th ed. 1955).

118 Compare Note by the Secretariat, supra note 71, at 18, which commends the “need for special vigilance in regard to specially threatened areas and ultra-hazardous activities.“

119 De Arechaga.sM/wa note 48, at 273. For a similar view, see Virally, Review of Dupuy, P. -M., La Responsabilite des Etats pour les dommages d’origine technologique et induslrielle, 74 AJIL 218, 219 (1980)Google Scholar.

120 For example, Zourek strongly supported strict liability as an applicable standard of present international law. Rapport provisoire presents par Jean Salmon, Institut de droit International, 58 Ann. 215 (1979 I).

121 See text at notes 91-106 supra.

122 From the very beginning of the ILC’s work on state responsibility in 1969, an attempt was made to maintain a careful distinction between state liability resulting from a violation of an international obligation and liability originating in lawful activities. (For a criticism of Prof. Ago’s first report, which failed to reflect the 2 different origins of state liability, see [1969] 1 Y.B. Int’l L. COMM’N 105-17.) The latter, so-called responsibility for risk, was defined by Ago as “the guarantee which States must give against possible injury from certain ‘lawful’ activities.”[1973] 1 Y.B. Int’l L. COMM’N 14, para. 5. After the General Assembly urged it to take up consideration of the topic of “International liability for injurious consequences arising out of acts not prohibited by international law” (see GA Res. 3071 (XXVIII), 3315 (XXIX), 3495 (XXX) and 31/97), the Commission, in 1978, finally set up a working group. For further references, see Report of the Working Group on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/L.284 and Corr. 1; and [1978] 1 Y.B. Int’l L. COMM’N 284-89, 1527th meeting. As to the persuasiveness of the Commission’s work in this area as evidence of the existence of general international legal norms, see also Cahier, , Le Probleme de la responsabilié pour risque en droit international, in International Relations in a Changing World 411 (1977)Google Scholar.

123 For a detailed survey, see instead, M. Arsanjani, No-Fault Liability from the Perspective of the General Principles of Law (unpublished paper, Codification Division, UN, 1979). For a characterization of the principle that “absolute liability applies to fields of activities having in common a high degree of risk”as a general principle of law, see, e.g., the claim by Canada against the USSR in connection with the crash in Canada of the Soviet satellite Cosmos 954, Annex A(b) to the diplomatic note of March 15,1979, reproduced in 18 ILM 899,907 (1979).

124 Moreover, acceptance of the principle of strict liability for damage due to transnationally hazardous state activities is reflected in a number of international claims and counterclaims concerning such activities as nuclear weapons testing, military maneuvers in border areas, and the creation of transnational flood hazards.

125 See, in particular, Jenks, supra note 56, at 105; Kelson, , State Responsibility and the Abnormally Dangerous Activity, 13 Harv. Int’l L. J. 197, 243 (1972)Google Scholar; Hardie, , Nuclear Liability: The General Principles of Law and further Proposals, 36 Brit. Y.B. Int’l L. 223, 237 (1960)Google Scholar; G. Tesauro, supra note 56, at 179-80; Andrassy, supra note 106; Randelzhofer & Simma, Das Kernkraftwerk an der Grenze, in Festschrift F. Friedrich Berber 389, 428-30 (Blumenwitz & Randelzhofer eds., 1973); Wildhaber, supra note 89, at 117, citing Goldie, Jenks, & Kelson; and, of course, Goldie, supra note 47, at 70—74; Goldie, , Liability for Damage and the Progressive Development of International Law, 14 Int’l & Comp. L.Q. 1189 (1965)Google Scholar; J. Schneider, supra note 50; and Stein, supra note 50. For a recent affirmative view, see L. Frohler & F. Zehetner, 1 Rechtsschutzprobleme Bei Grenzuberschreitenden Umweltbeeintrachtigungen 125 (1979). For somewhat more qualified support, see J. Goldschmidt, supra note 54, at 269-75; R. M’Gonigle & M. Zacher, supra note 39, at 152; Weiss, , International Liabilityfor Weather Modification, 1 Climatic Change 267, 287 (1978)Google Scholar; Lang, , HaftungundVerantwortlichkeitimlnternationalen Umweltschutz, in Ius Humanitatis (Festschrift f.A. Verdross) 517, 527 Google Scholar (Miehsler, Mock, Simma, & Tammelo, eds., 1980); Teclaff, , International Law and the Protection of the Oceans from Pollution, 40 Fordham L. Rev. 529, 547 (1972)Google Scholar; Burchi, , International Legal Aspects of Pollution of the Seafrom Rivers, 3 Italian Y.B. Int’l L. 115, 122 (1977)Google Scholar; Mazov, , Liability for the Harmful Consequences of Lawful Activities, 8 Sovetskoe Gosudarstvo I Pravo 116 (1979)Google Scholar; D. O’Connell, 1 International Law 593 (2d ed. 1970); and Luzzatto, , Responsabilita e colpa in diritto internazionale, 51 Riv. Diritto Intern. 53, 102–04 (1968)Google Scholar. One of the more remarkable opposing views is that of P. -M. DUPUY, supra note 2, at 209-10. For a comment on one of his key objections, see infra note 140.

126 Public perception of the existence of such a phenomenon should have been considerably strengthened in the wake of such spectacular incidents as the Amoco Cadiz disaster, the crash of Skylab, and the Ixtoc-I blowout in the Gulf of Mexico. So should have public perception of the need for corrective international action to minimize the risks and to optimize the transnational compensation mechanisms in the event the risk should materialize. Note in this respect a recent Austrian initiative within the framework of the IAEA; its aim is an international convention that would give a substantial say to the neighboring state with regard to the siting and operation of nuclear power plants in border areas. See 19 Osterr. Zeitschrift F. Aussenpolitik 114 (1979). See also a recent headline in Le Monde, Dec. 29, 1979, at 20: “L’AUemagne federale reclame a la France des garanties d’indemnisation en cas d’accident a Cattenom [a French nuclear power plant located in an area close to the Franco-German-Luxembourg border].“

127 Jenks, supra note 56, at 177. An extreme example of an ultrapositivist view is provided by Vargas Silva who, by dismissing clear evidence of the international incidence of strict liability for ultrahazardous activities as a general principle of law and as an evolving customary legal standard, rejects any suggestion that Mexico might be internationally liable for oil pollution damage sustained in the United States as a result of the Ixtoc-I blowout. Silva, Vargas, La Contamination de las aguas maritimas más alia de las fronteras nacionales y el Derecho, in La Contaminacion de Las Aguas Maritimas Más Alla de las Fronteras Nacionales y El Derecho 4, 38–45 (5 Cuadernos del Instituto Matias Romero de Estudios Diplomáticos, 1979)Google Scholar. For a contrary position, see Blowout of the Mexican Oil Well Ixtoc I: Hearings before the House Comm. on Merchant Marine ઈFisheries and the Subcomm. on Water Resources of the Senate Comm. on Public Works ઈ Transportation, 96th Cong., 1st Sess. 258-63 (1979) (statement of Gűnther Handl).

128 Liability in this sense would be not vis-à-vis the victim state but vis-à-vis the foreign individuals affected. A situation of this kind arises when state liability is considered to be subsidiary to the private polluter’s primary responsibility for compensation. For details, see infra sec. VI.

129 More generally speaking, it is probably true “that most strict liabilities now recognized are illustrations of a single basis of liability—a principle that each activity is accountable for the distinctive risk it creates.”R. E. Keeton, Venturing to do Justice 162 (1969). Obviously, the notion of special danger closely relates to the question of knowledge—actual or presumed—of the existence of this element. Knowledge is, in turn, crucial to the question who might be the better cost avoider, hence which party ought to bear the costs of the accident; see supra note 32. For a more detailed discussion of the relevance of the concept of abnormal risk, etc., in the transnational context, see Handl, supra note 124.

130 Dupuy, supra note 48, at 365.

131 See text at notes 17-19 and 28-30 supra.

132 See the Juliana accident, text at notes 99-102 supra; the Cherry Point incident, text at notes 91-95 supra; and, of course, the international public and private agreements relating to oil pollution damage, all of which establish a regime of strict liability, supra note 4.

133 See the Beaufort Sea ad hoc arrangement for liability in the event of transnational oil pollution from exploratory drilling, text at notes 103-06 supra.

134 See the Mura case (Austria-Yugoslavia), text at notes 95-98 supra.

135 See also supra note 129.

136 For a classic definition, see Jenks, supra note 56, at 107: It does not imply that the activity is ultra-hazardous in the sense that there is a high degree of probability that the hazard will materialize, but rather that the consequences in the exceptional and perhaps quite improbable event of the hazard materializing may be so farreaching that special rules concerning liability for such consequences are necessary if serious injuries and hardship are to be avoided. And see (U.S.) Restatement (Second) of Torts §520, comment f (1976): [I]t is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. See further Handl, supra note 1, at 31-33.

137 Stallybrass, , Dangerous Things and the Non-Natural User of the Land, 3 Camp. L.J. 376, 386 (1927-29)Google Scholar.

138 Cahier, supra note 122, at 431; see also Sohn, & Baxter, , Convention on the International Responsibility of States for Injuries to Aliens, Final Draft with Explanatory Notes, in Garcia Amador, F., Sohn, L. & Baxter, R., Recent Codification of the Law of State Responsibility for Injuries to Aliens 133, 170–71 (1974)Google Scholar.

139 As to the threshold concept, see supra note 87; and Jenks, supra note 136.

140 There is no need here to review in detail the various possible factors that might be taken into consideration in evaluating a particular activity. Reference might instead be to the exemplary listing of such parameters to be found in section 56 of the Restatement (Second) of Torts (1976). In his excellent treatise, Prof. Dupuy appears to consider the difficulty in determining ex post facto the ultrahazardous nature of the injurious activity as the major stumbling block to the extraconventional existence of strict liability in international law. P.-M. Dupuy, supra note 2, at 206-09. However, and apart from his admission that some activities might prove to be so manifestly ultra hazardous as not to allow allegations to the contrary, the nature of the activity would more likely than not already have been subject to discussions between polluting and victim states on the occasion of the former’s compliance with its (previously activated) duty of prior information and consultation. For this reason, the countries concerned may well have reached an informal understanding concerning strict liability in the event of transnational damage. The absence of an a priori formal agreement on a particular activity as “ultrahazardous”thus appears to represent less than the formidable obstacle suggested by Dupuy.

141 As to the Canadian claim related to Cosmos 954, supra note 123, it should be noted that so far the USSR has not indicated a willingness to honor the Canadian claim for compensation. If settlement through negotiations between the two countries fails, compensation of the outstanding claim may have to be attempted through adjudication by a claims commission to be established pursuant to Articles XIV through XVI of the 1972 Space Liability Treaty, in/wo note 18.

142 As to the international legal duty of prior information, see Handl, supra note 88, at 55-63.

143 See, e.g., Jenks, supra note 56, at 182; and Scott & Bramsen, Draft Guiding Principles concerning Transfrontier Pollution, in Problems in Transfrontier Pollution, supra note 50, at 299, 304.

144 For a detailed exposition, see Handl, supra note 88.

145 See generally, Ruff, , The Economic Sense of Pollution, in Economics of the Environment 41 (Dorfman, R. & Dorfman, N. eds., 2d ed. 1977)Google Scholar; G. Calabresi, The Costs of Accidents: A Legal and Economic Analysis 24-33 (1970).

146 As evidenced in the recent OECD document identifying factors in determining activities calling for prior notification under a bilateral or multilateral agreement, Ann. II to OECD Doc. ENV/TFP/78.17, at 1-3; and see OECD Council Recommendation on the Assessment of Projects with Significant Impact on the Environment, OECD Doc. C(79) 116.

147 Supra note 122.

148 Id. at 432.

149 See supra sec. IV, “International Claims Situations.“

150 Cahier, supra note 122, at 431.

151 Jenks, supra note 56, at 178.

152 See, e.g.. Kelson, supra note 125, at 198; and Weiss, supra note 125, at 280-81. Compare Beesley, supra note 66; Kiss, 1973 Hague Colloquium, supra note 47, at 497; Andrassy, supra note 106; and Treves, supra note 35.

153 This will be particularly so in the aftermath of such well-publicized industrial accidents as Seveso and Three Mile Island.

154 See also Treves, supra note 35, at 781: “Ce régime [of strict international liability] pourrait etre appliqué non seulement aux dommages produits par les faits des Etats, et par les faits accomplis pour leur compte, mais aussi a ceux produits par des activites autorisees par les Etats.“

155 Title A of Principles Concerning Transfrontier Pollution, OECD Doc. C(74) 224. or G. Tesauro, supra note 56, at 192: “II fondamento della responsabilità[used in the sense of “strict liability“] … va identificato nella esigenza di ripristinare l’equilibrio e la stabilita almeno patrimoniale delle sfere giuridiche subbiettive dei singoli consociati.“

156 See Handl, supra note 87, at 17. As to the irrelevance of a specific attributability of such private conduct to the controlling state, see the ILC’s discussion of state responsibility for the conduct of persons not acting on behalf of the state. It was noted that if states were answerable for transnationally injurious acts,

irrespective of whether such acts, committed either by private persons or by organs, were attributable to the State or not, something entirely foreign to the sphere of responsibility for internationally wrongful acts would be involved… . What would be involved would be a guarantee given by the State at the international level against the danger of actions committed in its territory, under certain conditions, by private persons.

ILC Commentary on Art. 11 of the Draft Articles on State Responsibility, Report of the International Law Commission on the work of its twenty-seventh sess., [1975] 2 Y.B. Int’l L. COMM’N 73, para. 12 (emphasis added). Such a guarantee represents a direct, potential international legal obligation for the controlling state and is, of course, the very hallmark of a liability-for-risk, i.e., liability without fault, regime. Note, in particular, Ago’s characterization of such strict state liability as “the guarantee which States must give against possible injury from certain ‘lawful’ activities“; supra note 122. Thus, the argument is also unpersuasive that rejects the usefulness of the concept of direct state liability for private transnationally hazardous conduct on the ground that in most cases of transnational damage, the latter would be “attributable to conduct of the executive and so … capable of attracting consequential liability… .”In any event, so the argument runs, “an injured party … [would] still [be] adequately protected through personal liability in civil law, which exists independently of state liability.”A. Rest, International Protection of the Environment and Liability—The Legal Responsibility of State and Individuals in Cases of Transfrontier Pollution 123 (Beitrage Zur Umweltgestaltung, vol. A56, 1978) (footnote omitted). To begin with, attributability is not in issue, as it has been assumed that the controlling state has discharged its international legal duty of due care in respect of the injurious activity. The state’s liability flows instead from that fundamental notion of guarantee owed the international community as the tit for tat for international recognition of the state’s exclusive jurisdiction over its territory. Besides, it is increasingly obvious that the creation of certain kinds of transnational risk could result in liability well beyond the financial means of the private actor, so that the controlling state’s liability might very definitely be crucial to the satisfaction of transnational claims for compensation.

157 Apart from the more obvious goal of restoring as closely as possible the victim’s status quo ante, this may also be highly desirable on the grounds that only an internalization of the accident costs of a particular activity will make the choice among competing goods and services approximate a rational decision because the price of the items in contention will more truly reflect the costs of production.

158 For some pertinent thoughts, see instead Dupuy & Smets, supra note 71; du Pontavice & Cordier, Compensation for “Indirect or Remote”Pollution Damage in Individual Countries and at International Level, OECD Doc. ENV/TFP/78.6; and Note by the Secretariat, Compensation for Nuclear Damage in OECD Member Countries, OECD Doc. ENV/TFP/77.23.

159 Cases in point include such accidents as the wreck of the Amoco Cadiz, apparently the only asset of Amoco Transport Company, and—in some of its critical legal aspects analogous to transnational pollution—the dioxin pollution accident at Seveso involving the single-plant company Industrie Chimiche Meda, S.p.A. (ICMESA).

160 This is clearly the rationale that underlies the subsidiary state liability provisions of the nuclear liability conventions, text at notes 28-30 supra. State authorization of private construction and operation of nuclear power facilities necessarily entails subsidiary state liability as well, given the fact that most private operators could not possibly meet the potential transnational claims for compensation in the event of a major aerial release of radioactivity from a power plant located, say, in a border area. For details, see Handl, supra note 1, at 39-42; and Deutsche Risikostudie fur Kemkraftwerke (German reactor safety study), which suggests that accidents involving German plants—with regard to most of their consequences (one notable exception may be acute deaths)—would result in transnational damage similar in magnitude to that suffered within Germany itself. The Federal Minister of Research and Technology, The German Risk Study. Summary 29-30 (1979). See also Le Monde, supra note 126. Compare further Remond-Gouilloud, Leqons d’un naufrage (a propos de I’indemnisation des victimes de I’Amoco-Cadiz), D. 1979, Chron. 133.

161 While nationality of the victim has been a traditional condition, it may no longer be an absolute requirement for the “espousal”by a state of a private person’s claim for compensation for transnational pollution damage. Thus, it is entirely conceivable that the state in which the victim resides, and where he has suffered the injury, must nowadays be considered entitled to raise the issue of compensation internationally. For some interesting comments on this, see Dubois, , La Distinction entre le droit de I’Etat reclamant et le droit du ressortissant dans la protection diplomatique, 67 Rev. Critique Droit Int’l Prive 615 (1978)Google Scholar; and the ASIL debate on Nationality of Claims-Individuals, Corporations, Stockholders, in ASIL, 63 Proceedings 30 (1969).

162 1973 Hague Colloquium, supra note 47, at 507. “Responsibility,”as used here, obviously refers to “liability.“

163 That the dominance of states in transnational relations is not only being challenged by such “traditional”transnational actors as multinational corporations, international cartels, churches, etc., is indicated by a sample of recent New York Times headlines: “A Boycott of Nicaragua is begun by U.S. Unions,”March 18,1979, at 18, col. 1; and “N.A.A.C.P. is Seeking Foreign Policy Role,”Sept. 10, 1979, at A13, col. 1. As to the proliferation of actors and its implications for world public order, see McDougal, , Lasswell, , & Reisman, , Theories about International Law; Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188, 189–95 (1968)Google Scholar; Lasswell, , Future Systems of Identity in the World Community, in 4 The Future of the International Legal Order 3 (Black, & Falk, eds., 1972)Google Scholar; McDougal, Lasswell, & Reisman, The World Constitutive Process of Authoritative Decision in 1 id., at 73 (1969); Knorr, , Transnational Phenomena and the Future of the Nation State, in The Search for World Public Order 401 (Lepawsky, , Buehring, , & Lasswell, , eds., 1971)Google Scholar; and S. Hoffmann, Primacy or World Order 105-95 (1978).

164 Supra note 4.

165 Text at note 105 supra.

166 Referred to in 7 Internat’l Canada 276 (1976).

167 At present, the private operators of nuclear power plants in the United States, for example, are required to carry liability insurance of up to $160 million, with the federal Government’s intervention limited to a total of $560 million. However, under a deferred premium plan, each operator of a nuclear reactor exceeding a capacity of 100 MW (e) is required to contribute to defraying the cost of any nuclear incident to a maximum amount of $5 million; 10 C.F.R. §140.11(4) (1980). Accordingly, with 69 nuclear power plants operating in the United States as of August 1979, deferred premiums would amount to $345 million. With $160 million from insurance, the federal Government’s liability would be limited to $55 million. For a tabulation of the compulsory insurance coverage of nulcear plant operators and the ceiling of additional state interventions in OECD countries, see Note by the Secretariat, Compensation for Nuclear Damage in OECD Member Countries, OECD Doc. EN V/TFP/77.23, at 28 (1977). As to a clear affirmation of the principle of direct and subsidiary state liability, see Statement by the Canadian Delegation, supra note 50, at 7.

168 See Art. 7, para. 3 and Art. 8 of the draft convention, supra note 107, at 248.

169 See supra note 84.

170 Bouchez, 1973 Hague Colloquium, supra note 47, at 499, 500.

171 To this effect, Harabro, id. at 503. Another possible policy objective, namely, of providing a potential defendant in a situation of transnational pollution in which the individual polluter remains unidentified, would rarely be of relevance in the context of accidental pollution.

172 Review of such a scheme, which obviously calls for a detailed analysis, has been reserved for a separate study.

173 For some pertinent thoughts in this respect, see, e.g., Hargrove, 1973 Hague Colloquium, supra note 47, at 510-13, and Hargrove, , Environment and the Third Conference on the Law of the Sea, in Who Protects the Ocean? Environment and the Development of the Law of the Sea 191, 222–23 (Hargrove, ed. 1975)Google Scholar.

174 Draft Articles for a Convention on Liability and Compensation in Connection with the Carriage of Noxious and Hazardous Substances by Sea, Annex IV to Report of the Legal Committee on the Work of its Thirty-eighth Session, IMCO Doc. LEG XXXVIII/5 (1979); and Alternative IV, Annex II to Report of the Legal Committee on the Work of its Thirty-ninth Session, IMCO Doc. LEG XXXIX/5 (1979). See also the summary of the Legal Committee’s discussions of the draft articles, Report of the Legal Committee on the Work of its Forty-first Session, IMCO Doc. LEG XLI/5, 3-19 (1979).

Note that, by contrast, the draft convention on deterioration of the marine environment as a result of exploration and exploitation of the seabed and its subsoil in maritime areas under the national jurisdiction of states, adopted by resolution by the European Council of Environmental Law on April 1, 1978, while focusing on the (civil) liability of the operator of the offshore installation, expressly stipulates that this regime is not to derogate from the applicable international rules of state liability. Art. 18 of the draft convention, reproduced in 4 Environmental L. & Pol’y 137 (1978). For critical comments on the absence of provisions on controlling states’ liability in the 1969 CLC and the 1971 Fund Convention, see, e.g., R. M’Gonigle & M. Zacher.su/ira note 39, at 197.

175 See text at notes 31-47 supra.

176 See supra sec. IV.

177 See text at notes 142-146 supra.

l78 Text at notes 88-89 supra.

179 Supra sec. V. Implementation of this principle with regard to vessel-source pollution has been conspicuously lagging. Blix thus noted:

I wish it were possible to inflict … [strict liability] upon the flag State at least for ships which have a certain size, huge tankers and so forth… . [W]e all know that if the state allows space activities by private citizens, the state does carry a responsibility for it. In theory, I do not see any difference between the two cases. But in practice, I think the attitudes of governments would be different.

Supra note 162, at 507. As to the basic applicability of the “control-responsibility”function to flag state jurisdiction, see supra note 99. For the policy reasons discussed previously, it should thus be obvious that affirmation of the direct liability of flag states for transnational pollution due to, for example, a supertanker, is both consistent with existing international law and supportive of the fundamental goals of international environmental law.

180 See text at notes 171-173 supra.