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State Responsibility and the Marine Environment: The Rules of Decision. By Brian D. Smith. Oxford: Clarendon Press; New York: Oxford University Press, 1988. Pp. xviii, 281. Index. $65.
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 1989
References
1 A number of recent studies have called for redoubled efforts to protect the biosphere. See, e.g., GA Res. 42/186, 42 UN GAOR Supp. (No. 49) at 141, UN Doc. A/42/49 (1987), containing as an annex the “Environmental Perspective to the Year 2000 and Beyond” prepared under the auspices of UNEP; the report of the Brundtland Commission, World Commission on Environment and Development, Our Common Future (1987); and Time Magazine's report designating “Endangered Earth” as the “Planet of the Year,” Time, Jan. 2, 1989, at 24.
2 Brown, The Conventional Law of the Environment, 13 Nat. Resources J. 203, 221 (1973).
3 United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index 70, UN Sales No. E.83.V.5 (1983). Part XII of the Convention is entitled “Protection and Preservation of the Marine Environment.”
4 The quotation is from the author's “Acknowledgements” (unpaginated).
5 See I. Brownlie, Principles of Public International Law 436–41 (3d ed. 1979).
6 See Arts. 20, Breach of an international obligation requiring the adoption of a particular course of conduct, and 21, Breach of an international obligation requiring the achievement of a specified result, [1977] 2 Y.B. Int'l L. Comm'n, pt. 2 at II, UN Doc. A/CN.4/SER.A/ 1977/Add.l. Obligations of conduct and result are not discussed until part III, and then quite cursorily (p. 145, especially 145 n.87).
7 The closest Smith comes to addressing the question is to note that obligations of result are implicitly subject to a regime of strict responsibility under the draft on international responsibility for injuries to aliens prepared by Professors Sohn and Baxter. Sohn & Baxter, Convention on the International Responsibility of States for Injuries to Aliens (Final Draft with Explanatory Notes), reprinted in Recent Codification of the Law of State Responsibility for Injury to Aliens 135 (García-Amador, Sohn & Baxter eds. 1974).
8 The idea of considering the circumstances of the acting state is discussed later in connection with the obligation of due diligence (pp. 38–40).
9 Noyes & Smith, State Responsibility and the Principle of Joint and Several Liability, 13 Yale J. Int'l L. 225 (1988).
10 The index contains no entry for “environment.”
11 The Charter is cited repeatedly without evaluation of what Professor Franck might call its “legitimacy” (Franck, Legitimacy in the International System, 82 AJIL 705 (1988)). See, e.g., in addition to the reference in the text above, p. 78, text at n.56; and p. 81, text at n.76.
12 See note 11 supra.
13 While the discussion as a whole is sound, Smith's use of some authority is questionable. For example, he asserts that the reports of Professor Quentin-Baxter to the ILC on the law of international liability “attached state responsibility to conduct within the ‘territory or control’ of the state” (p. 89, emphasis added).
14 For example, Smith notes that the “ILC has gone so far as to identify as an ‘international crime’ … any ‘serious breach’ of the obligation ‘prohibiting massive pollution of the atmosphere or [of (sic)] the areas [sic—seas]’ ” (p. 94) but does not examine the legal consequences of treating such an act as “criminal.”
15 At least some of this analysis was presaged by an article written some fifteen years ago by Ian Brownlie. See Brownlie, A Survey of International Customary Rules of Environmental Protection, 13 Nat. Resources J. 179, 183 (1973).
16 Pp. 96–97. This dichotomy was suggested by New Zealand in its pleadings in the Nuclear Tests cases. Id. n.79. See also Brownlie, supra note 15, at 182–83. Smith concludes that the “actio popularis now enjoys no more than inchoate status as a functional principle of customary law” (p. 98).
17 The idea of making the Commission's draft articles on watercourses applicable to the “international watercourse system,” rather than simply to the “international watercourse,” has been somewhat controversial, both within the Commission itself and within the Sixth (Legal) Committee of the General Assembly.
18 This is true, e.g., of the discussion of the role of “wrongfulness” in the Commission's work on international liability (p. 122), and the fact that no distinction is drawn between prohibited acts and prohibited injuries (passim).
19 See Report of the International Law Commission on the work of its fortieth session, 43 UN GAOR Supp. (No. 10) at 15–16, UN Doc. A/43/10 (1988) [hereinafter 1988 ILC Report]; and the ILC's Report on the work of its thirty-ninth session, 42 UN GAOR Supp. (No. 10) at 111'13, UN Doc. A/42/10 (1987).
20 Compare, e.g., the analysis concerning pollution of internal waters resulting in injury of an adjacent state at pp. 182–83 with the debates in the ILC's 1988 session on the international watercourses topic. See 1988 ILC Report, supra note 19, at 64–69.
21 Citing and quoting from the 1982 tentative draft, §511 comment i (p. 225 n.58). An example of such a zone is that created by Canada's Arctic Waters Pollution Prevention Act of 1970.
22 For example, the frequently used abbreviation “CDEM” does not appear in the index (although the full expression does), nor is there an entry for “land-locked states.” See also note 10 supra.
23 Most of these are of the typographical variety (e.g., commas appear frequently in lieu of periods), but in some cases, words are left out, or changed, in quotations. Some citations and cross-references are incorrect. See, e.g., p. 5 n.2 (315 articles in part I of the ILC's state responsibility draft, rather than 35); pp. 9, 12 (punctuation); p. 75 n.38 (vol. 6 of Whiteman's Digest published in 1908 rather than 1968); p. 80, line 20 (grammar); p. 94, text at note 59 (misquotation); p. 122 (punctuation); p. 211 n.136 (incorrect cross-reference); and p. 238 n.141 (Vienna Convention on the Law of Treaties “not yet in force” [entered into force Jan. 27, 1980]). It might be added that the American Law Institute's Restatement (Third) of Foreign Relations Law is referred to as the “U.S. Restatement,” implying some official status.