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

Published online by Cambridge University Press:  07 July 2009

M.B. Akehurst
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Extract

When the International Law Commission adopted a plan for its future work on State responsibility in 1970, it decided to set aside for separate treatment “questions relating to responsibility arising out of the performance of certain lawful activities — such as spatial and nuclear activities… [o]wing to the entirely different basis of the so-called responsibility for risk.”

Type
Symposium on State Responsibility and Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law
Information
Netherlands Yearbook of International Law , Volume 16 , December 1985 , pp. 3 - 16
Copyright
Copyright © T.M.C. Asser Press 1985

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References

1. ILC Yearbook 1970 vol. 2 p. 178

2. ILC Yearbook 1973 vol. 1 pp. 13–4.

3. It may be wondered why the International Law Commission used the phrase “not prohibited by international law”, instead of saying, “permitted by international law”; in theory, everything which is not prohibited is permitted, and everything which is not permitted is prohibited. But in practice it may be unclear whether something is prohibited or whether it is permitted; the words “not prohibited” include these grey areas, and were apparently used in order to cover them, p. 251.

In 1982 Quentin-Baxter, R.Q. said: “The words ‘acts not prohibited’ in the title meant acts, whether or not prohibited” ILC Yearbook 1982 vol. 2 p. 227Google Scholar. This interpretation was criticized by M.L. Balanda, (ibid., p. 246), and rightly so; Quentin-Baxter's interpretation goes against the literal meaning of the title and makes nonsense of the International Law Commission's intention to separate discussion of State responsibility for wrongful acts from discussion of liability for lawful acts.

4. ILC Yearbook 1978 vol. 2 part 2.

5. ILC Yearbook 1980 vol. 2 part 2.

6. ILC yearbook 1981 vol. 1 p. 224. A danger of this approach is that precedents concerning the environment may not be suitable for extension to other contexts.

7. There are some exceptions, which are discussed below.

8. This has been pointed out by some members of the International Law Commission, particularly Reuter, P., ILC Yearbook 1980 vol. 1 pp. 253-4Google Scholar, Ushakov, N.A.ILC Yearbook 1981 vol. 1. p. 225Google Scholar and J. Barboza (ibid., p. 228).

Liability for abuse of rights is sometimes mentioned as an example of liability sine delicto, (Brownlie, I., Principles of Public International Law, 3rd edn. (Oxford 1979), pp. 443-5Google Scholar. However, if there is liability for abuse of rights, it exists because there is a rule prohibiting abuse of rights; such liability is liability ex delicto, not liability sine delicto, ILC Yearbook 1973 vol. 2 p. 182.

9. 3 RIAA (1941) pp. 1911, 1965. The tribunal also laid down a regime for the future operation of the smelter and said (p. 1980): “if any damage as defined under Question No. 2 … shall occur in the future, whether through failure on the part of the Smelter to comply with the regulations herein prescribed or notwithstanding the maintenance of the regime, an indemnity shall be paid …” (emphasis added). Quentin-Baxter, , ILC Yearbook 1981 vol. 2 part 1 pp. 110 and 112Google Scholar argues that the words in italics represent an example of liability sine delicto. However, that is probably not so; the type of damage which the tribunal was discussing was “damage as defined under Question No. 2”, and the tribunal's reply to Question No. 2 includes the quotation on p. 1965. The obligation to comply with the regime established by the tribunal did not exhaust Canada's wider duty not to cause damage, as stated on p. 1965.

10. ICJ Rep. (1949) p. 4 at p. 22 (emphasis added).

11. 11 ILM (1972) p. 1416. It is generally agreed that Principle 21 is an accurate statement of the present law, Harris, D. J., Cases and Materials on International Law, 3rd edn. (London 1983) p. 204Google Scholar, Dupuy, P.M., La responsabilité internationale des états pour les dommages d'origine technologique et industrielie (Paris 1976) p. 177Google Scholar; 54 BYIL (1983) p. 512.

12. 14 ILM (1975) p. 251.

13. Ibid., pp. 1292, 1307. See also International Law Association, Report of the Sixtieth Conference — Montreal, 1982 (London 1983) pp. 1–3 and 158.Google Scholar

14. 480 UNTS p. 43.

15. ICJ Rep. (1974) p. 253 at p. 256.

16. Ibid., p. 457 at p. 460. Treaties regulating the liability of operators of nuclear installations sometimes require States to enact municipal laws making the State liable sine delicto for nuclear accidents (either because the State is itself operating a nuclear installation, or because the treaty requires the State to pay compensation if the operator is unable to pay). But this liability in municipal law is not the same as liability in public international law: see Dupuy, op.cit., n. 11, pp. 98–128 (especially 127–8) and 190–2.

17. International Law Association, Report of the Fifty-Second Conference — Helsinki, 1966 (London 1967) pp. 484, 496-7.Google Scholar

18. D.J. Harris, op.cit., n. 11 pp. 208–9. See also Handl, G., “Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited”, 13 Can. YIL (1975) pp. 156, 183-4.Google Scholar

19. Jenks, C.W., “Liability for Ultra-Hazardous Activities in International Law”, 117 Hague Recueil (1966) pp. 105, 122-4Google Scholar; Dupuy, op.cit., n. 11, p. 193.

20. 58 Annuaire (1979) Part II, p. 196.

21. Ibid., p. 109.

22. Whiteman, M.M., Digest of International Law, vol. 6 (Washington 1968) p. 265Google Scholar. See also the International Law Association's Draft Articles on Flood Control, International Law Association, Report of the Fifty-Fifth Conference — New York, 1972 (London 1973) pp. xvi–xvii.Google Scholar

23. 6 ILM (1967) p. 386. But see infra n. 40.

24. 18 ILM (1979) p. 1434.

25. United Nations Juridical Yearbook (1965) p. 173.

26. See also 74 AJIL (1980) p. 545, the International Convention for the Prevention of Pollution of the Sea by Oil 1954 (327 UNTS p. 3) and the International Convention for the Prevention of Pollution from Ships 1973, United Nations Juridical Yearbook (1973) p. 81.Google Scholar

27. See also the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters 1972, 11 ILM (1972) p. 1291 and de Yturriaga, J.A., “Regional Conventions on the Protection of the Marine Environment”, 162 Hague Recueil (1979) p. 319.Google Scholar

28. 21 ILM (1982) p. 1308. See also Articles 195 and 235(3).

29. This has also been pointed out by Ushakov, ILC Yearbook 1980 vol. 1 p. 250; ILC Yearbook 1981 vol. 1 p. 225 and Brownlie, 75 ASIL Proceedings (1981) p. 39. See also Brownlie, I., System of the Law of Nations: State Responsibility, Part One (Oxford 1983) pp. 49–50.Google Scholar

30. Part of the misunderstanding is due to a terminological confusion between “acts” and “activities”. These two words do not have the same meaning, but the International Law Commission uses them as if they were interchangeable; for instance, the French version of “international liability for injurious consequences arising out of acts not prohibited by international law” is “responsabilité internationale pour les conséquences préjudiciables découlant d'activités qui ne sont pas interdites par le droit international”.

31. Indeed, most wrongful acts are committed in the course of lawful activities — for instance, war crimes committed during a defensive war. If the concept of international liability for injurious consequences arising out of activities not prohibited by international law is interpreted literally, it will cover most of the ground covered by State responsibility for wrongful acts; there is no logical justification for studying environmental damage as an example of liability arising out of a lawful activity while ignoring war crimes committed during a defensive war — both are examples of the same concept.

32. ILC Yearbook 1980 vol. 2 part 1 p. 251. See also ILC Yearbook 1973 vol. 1 pp. 7 (R.D. Kearney) and 110; ILC Yearbook 1974 vol. 1 pp. 6–7; ILC Yearbook 1980 vol. 1 pp. 253 (D. Thiam) and 254 (P. Reuter); ILC Yearbook 1981 vol. 1 pp. 217 (R.Q. Quentin-Baxter) and 220 (P. Reuter). But the International Law Commission was not unanimous on this point; Sir Francis Vallat said that Quentin-Baxter's draft articles should deal with liability for negligence (a form of fault) as well as liability for risk: ILC Yearbook 1980 vol. 1 p. 250 and ILC Yearbook 1981 vol. 1 p. 230.

33. Austria criticized the draft articles for passing over the question of fault in silence, ILC Yearbook 1980 vol. 2 part 1 pp. 89–90.

34. ILC Yearbook 1978 vol. 2 part 2 pp. 81–5; ILC Yearbook 1977 vol. 2 part 2 pp. 16 and 18–30.

35. Dupuy, op.cit., n. 11, pp. 15–22, mentions various authors and arbitral awards suggesting the application of the idea of liability sine delicto in various fields, but their ideas have not been generally accepted (ibid., pp. 22–5). Cahier, P., “Le problème de la responsabilité pour risque en droit international”, in International Relations in a Changing World (Alphen a.d. Rijn 1977), p. 409 at pp. 422-8Google Scholar, argues that liability for lawful acts is a general principle of law; but most rules of municipal law which he cites to support his contention (Rylands v. Fletcher, Article 1384 (1) of the French Code Civil) involve liability ex delicto sine culpa (strict liability in the law of tort).

36. The International Law Commission said in 1970 that its work on State responsibility for wrongful acts was not intended to codify “the rules of international law which … impose particular obligations on States, and which may, in a certain sense, be termed ‘primary’, as opposed to the other rules — precisely those covering the field of responsibility — which may be termed ‘secondary’, inasmuch as they are concerned with determining the consequences of failure to fulfil obligations established by the primary rules” ILC Yearbook 1970 vol. 2 p. 179 . However, the rarity of primary rules providing for liability for lawful acts has meant that much of the International Law Commission's work on such liability has been devoted to trying to identify those primary rules, as opposed to codifying secondary rules.

37. ILC Yearbook 1980 vol. 2 part 1 p. 251.

38. de Aréchaga, E. Jiménez, general course, 159 Hague Recueil (1978) p. 273Google Scholar; Ushakov, N.A., ILC Yearbook 1981 vol. 1 p. 225Google Scholar and ILC Yearbook 1982 vol. 1 p. 249.

39. 6 ILM (1967) p. 386.

40. United Nations Juridical Yearbook, (1971) p. 111Google Scholar. However, Article VI creates certain exceptions to Article II. Article III provides: “In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible”.

41. Oppenheim, L., International Law, Lauterpach, H., edn., vol. 2, 7th ed. (London 1952) pp. 759-66Google Scholar. For an example of what appears to be angary in a civil war, see the Le Phare case (La, Fontaine, Pasicrisie internationale (1902) p. 225).Google Scholar

42. ILC Yearbook 1980 vol. 2 part 2 p. 114. See also Ago's statement, ILC Yearbook 1979 vol. 1 p. 58.

43. ILC Yearbook 1980 vol. 1 pp. 168 (R.Q. Quentin-Baxter), 171 (S.M. Schwebel), 172 (J.J. Calle y Calle), 176 (J. Barboza), 177 (S. Tsuruoka), 178 (M.C.W. Pinto) and 181 (R. Ago).

44. Ibid., ILC Yearbook 1980 vol. 2 part 2 pp. 47–8. In the case of financial obligations, necessity justifies postponement of payment but not repudiation of the debt: League of Nations Conference for the Codification of International Law, Bases of Discussion Nos. 4 and 9.

45. The International Law Commission's commentary mentions only two cases to support the view that compensation is payable — the case concerning properties of the Bulgarian minority in Greece (ibid., p. 38) and the case of the General Company of the Orinoco (ibid., p. 40). The first case was settled by a political compromise, and the second case is merely an application of the rule that compensation must be paid when foreign-owned property is expropriated in the public interest.

46. A national of one State who acquires property in another State is to some extent subject to the sovereignty of the latter State, which is why some States say there is no duty to pay compensation for expropriating his property; but this argument does not apply when one State expropriates the right, not of a foreign national, but of another State — States are equal, and not subject to foreign sovereignty.

47. Some members of the Commission, while agreeing that force majeure and fortuitous event precluded wrongfulness, “still questioned whether it was right that, where an act committed in conditions of force majeure or fortuitous event nevertheless caused material damage, all of the burden should fall on the State which suffered the damage … They thought it unfair that the damage … should be borne solely by its victims, who were quite as innocent as those who caused it. In the opinion of those members, it would be proper to envisage at least some sharing of the burden. The Commission endorsed these views, pointing out that the article formulated here precludes the wrongfulness of an act of the State which… is committed as a result of force majeure or fortuitous event …; however, it does not exclude the possibility that different rules may operate in such cases and place upon the State obligations for total or partial compensation that are not connected with the commission of a wrongful act … [A] thorough study of such obligations could be made within the framework either of part two of the report on State responsibility for wrongful acts or of the report on liability arising out of acts not prohibited by international law” ILC Yearbook 1979 vol. 2 part 2 pp. 132–3; see also ILC Yearbook 1979 vol. 1 pp. 197–8 (W. Riphagen) and 203 (F.X.J.C. Njenga).

48. Payment of compensation ex gratia is not a good example of liability for lawful acts, although some members of the International Law Commission suggested or implied otherwise - e.g., S.M. Schwebel ILC Yearbook 1980 vol. 1 p. 252, R.Q. Quentin-Baxter (ibid., p. 258) and S. Sucharitkul ILC Yearbook 1981 vol. 1 p. 224.

49. Can an injured State claim any remedy other than the payment of compensation? Restitution of expropriated property is sometimes claimed, but this makes sense only if the expropriation is wrongful and therefore void. Western States have sometimes argued that an expropriation which is initially lawful becomes unlawful if compensation is not paid within a reasonable time. See Goldenberg v. Germany (1928), 2 RIAA p. 901 at p. 909; Hackworth, G.H., Digest of International Law, vol. 3, p. 662Google Scholar; Oppenheim, op.cit., n. 41, pp. 410–1.

50. PCIJ ser. A No. 13, pp. 46–8.

51. ILC Yearbook 1980 vol. 2 part 1 p. 263 (Quentin-Baxter). See also ILC Yearbook 1982 vol. 1 p. 286 (Quentin-Baxter).

52. Sometimes damage is a necessary element of responsibility for wrongful acts, for, as Ago himself noted, “in some cases the obligation violated was, precisely, an obligation not to cause damage, so that without damage there could be no violation”, ILC Yearbook 1973 vol. 1 p. 27).Google Scholar

53. ILC Yearbook 1974 vol. 1 p. 7. See also ILC Yearbook 1973 vol. 2 pp. 182–4.

54. 77 AJIL (1983) pp. 334–6 (cf., 78 AJIL (1984) p. 478). Article 6 of the Outer Space Treaty of 1967 makes States automatically liable for the acts of private individuals, but this cannot be applied by analogy to other cases of liability for lawful acts. If Quentin-Baxter's approach is too wide in one sense, it is too narrow in another — the requirement of ‘trans-boundary’ harm would exclude most of the true cases of liability sine delicto discussed above.

55. ILC Yearbook 1980 vol. 2 part 1 p. 253 (Quentin-Baxter).

56. ILC Yearbook 1976 vol. 2 part 2 pp. 95–122.

57. Ibid., pp. 97–8, 112–3 and 115–6. See also ILC Yearbook 1969 vol. 2 p. 233 (Ago); ILC Yearbook 1980 vol. 2 part 1 p. 119 (Riphagen); Riphagen's fourth report on State responsibility (UN Document A/CN.4/366/Add. 1), paragraphs 69 et seq.; Akehurst, M.B., “Reprisals by Third States”, 44 BYIL (1970) p. 1.Google Scholar