Scope and Future Development of Judicial Remedies
Scope and Future Development of Judicial Remedies
Abstract and Keywords
This chapter considers some of the suggestions that have been made for overcoming the limits to the role of state responsibility and recent developments in this area in the light of their possible impact on judicial remedies. Recent developments, particularly in the area of polluting and ultra-hazardous activities, highlight the limitations of the imposition of state responsibility and of traditional judicial remedies. Other suggested responses are the creation of actio popularis, international criminal responsibility, and liability for injurious consequences of lawful acts.
THE question of the limits on what can be expected from and achieved by the use of judicial remedies in international law has not received much attention. Writers have confined themselves to discussions of the political restrictions on the use of judicial settlement of disputes in international law; even discussion of the future role of the International Court of Justice tends not to include any examination of the use of judicial remedies. However, any proposal to extend the use of judicial settlement to new areas, and any discussion of its present role, must take account of the limitations of judicial remedies. Because judicial remedies are almost invariably retrospective, limited in the extent to which they can modify the status quo, dependent on a finding of state responsibility and the product of a bilateral process, their role is necessarily restricted.
This is not the place for a full discussion of the inadequacy of the imposition of state responsibility as a means of dealing with problems such as polluting and ultra-hazardous activities. Because the existence or content of rules of customary international law in these areas is controversial, and because anyway detailed regulation is necessary, states have begun to make treaties to deal with these problems. On the whole these treaties do not rely on the imposition of state responsibility. For where co-operation in preventing injury is more important than any subsequent remedy, where there is injury to areas beyond national jurisdiction or to states' interests not clearly protected by international law, bilateral claims do not provide an economically efficient or effective response.1 Writers have accordingly considered the possibility of a wider responsibility owed by states to the international community as a whole.2
Nor is this the place for a full discussion of the question of standing to request a judicial remedy in international law; one familiar type of proposal designed to increase the work and influence of the International Court of Justice is based on the extension of the right to bring contentious cases and request Advisory Opinions. But some of the suggestions that have been made for overcoming the limits on the role of state responsibility and recent developments in this area will now be considered in the light of their possible impact on judicial remedies.
(p.211) (i) Actio popularis and Judicial Remedies: standing in the World Court
In the European Communities a Member State may bring an action for a declaration by the European Court of Justice that another Member State is in breach of its obligations under Community law without having to show a direct legal interest apart from the general interest in the observance of Community law. Similarly a Member State may intervene in an action by the Commission against another Member State without having to prove it is directly affected by the breach.
In contrast the International Court of Justice has not yet made this step; the idea of a general right to secure the observance of international law is not established. This is another limitation on the declaratory judgment in the jurisprudence of the World Court: the International Court of Justice and its predecessor have not allowed locus standi to states except where they could show that they were directly affected by the actions of the defendant state. The Wimbledon case,3 however, shows a generous approach by the Court to this question. The British, French, Italian, and Japanese Governments instituted proceedings asking the Court to declare that,
1. The German authorities … were wrong in refusing free access to the Kiel canal to the steamship ‘Wimbledon’;
2. The German government is under an obligation to make good the prejudice sustained as a result of this action by the said vessel.
The Court has no doubt that it can take cognizance of the application instituting proceedings in the form in which it has been submitted. It will suffice to observe for the purposes of this case that each of the four Applicant Powers has a clear interest in the execution of the provisions relating to the Kiel Canal, since they ail possess fleets and merchant vessels flying their respective flags. They are therefore, even though they may be unable to adduce a prejudice to any pecuniary interest, covered by the terms of Article 386, Paragraph 1 of which is as follows:
‘In the event of violation of any of the conditions of Articles 380 to 386, or of disputes as to the interpretation of these articles, any interested Power can appeal to the jurisdiction instituted for the purpose by the League of Nations’4
Thus a generous interpretation of ‘any interested Power’ was given by the Court in this case; the applicant states did not have to show any actual harm to their interests, nor any definite immediate threat to these interests. It was enough that they had fleets and merchant vessels flying their flags. (p.212) This was a case of states suing another for breach of a treaty to which they were all parties; the question whether the type of interest possessed by the claimant states in this case would be enough to support an action for a breach of customary international law was left open.
This generous approach was continued in the first stage of the South West Africa case.5 Ethiopia and Liberia brought an action against South Africa for breach of its obligations under the Mandate for South West Africa. South Africa contested the jurisdiction of the International Court of Justice on several grounds including the argument that
This and the other arguments of South Africa against the jurisdiction of the Court were rejected. The Court held that it had jurisdiction under Article 7 of the Mandate, which provided:
The conflict or disagreement alleged by the governments of Ethiopia and Liberia to exist between them and the government of the Republic of South Africa is by reason of its nature and content not a ‘dispute’ as envisaged in Article 7 of the Mandate for South West Africa, more particularly in that no material interests of the governments of Ethiopia and/or Liberia or of their nationals are involved therein or affected thereby.
In its interpretation of this provision the Court went even further than had its predecessor in the Wimbledon case on the question of locus standi of claimant states. There states parties to a treaty had been allowed to bring a claim against another party for its breach even though no definite injury or threat of injury to themselves or their nationals had been shown. Now Article 7 of the Mandate, to which Ethiopia and Liberia were not themselves direct parties, was held itself to give them the right to bring a claim against the Mandatory without it being necessary for them to show that their own or their nationals' interests were affected by South Africa's behaviour. The Court said,
The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.
For the manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest in the observation by the Mandatory of its obligations both toward the inhabitants of the Mandated territory and toward the League of Nations and its Members.6
But this apparent acceptance of the possibility of an actio popularis for a declaratory judgment was abandoned by the Court in the second phase of its judgment.7 In a very controversial and much criticized decision the Court reopened the question of locus standi; it said that this had not been (p.213) settled by the Court's decision on its jurisdiction. Ignoring its discussion of the question whether the claimant states had sufficient legal interest to bring their case before the Court in its earlier decision, the Court now said that
This question of the existence of a legal right or interest was one on the merits of the case for it to decide now. The Court canvassed a series of arguments to support the view that individual Member States of the League of Nations had their own individual rights to call for the performance even of those provisions of the Mandates in which they had no material interest, and rejected them all. Finally it considered the force of Article 7(2) of the Mandate and the argument that this conferred on Member States a substantive right to claim from the Mandatory the carrying out of the Mandate. The Court in contrast to its earlier liberal approach now said,
To hold that the parties in any given case belong to the category of State specified in the clause [sc. the jurisdictional clause]—that the dispute has the specified character—and the forum is the one specified—is not the same thing as finding the existence of a legal right or interest relative to the merits of the claim.8
Here there was no special language, no clear indication that it was intended to give Member States of the League a substantive right to bring claims, nor was Article 7 comparable to the jurisdictional clauses of the Minorities Treaties which clearly gave states members of the Council of the League, a body with supervisory functions over the performance of the Minorities Treaties, the right to bring claims against states in breach of their obligations. Finally, the possible argument that the proper functioning of the Mandates system required the existence of a right on the part of individual Member States of the League of Nations to bring claims against Mandatories in breach of their obligations before the International Court was also dismissed.
It would be remarkable if this were the case, if so important a right having such potentially far reaching consequences … had been created indirectly and in so casual and almost incidental a fashion by an ordinary jurisdictional clause lacking … in any of the special features that might give it the effect claimed—and which would certainly be requisite in order to achieve that effect.9
The argument amounts to a plea that the Court should allow the equivalent of an actio popularis, or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present: nor is the court able to regard it as imported by the general principles of law referred to in Article 38(i)c of its statute.10
Thus, although the Court recognized, without any reference to the Wimbledon case, that a state might be able to bring a claim for breach of a (p.214) treaty to which it was a party even if its own interests were not directly affected by the breach, in general it took a restrictive view of the right to bring actions before the International Court. A right for a state not within the above category—the Wimbledon category—to bring a claim would not be lightly inferred from a jurisdictional clause of the type in the South West Africa case; according to the Court in this case a clear indication that such a right was intended must be present. It seems even more unlikely that a state would be able to bring a claim for a breach of customary international law that did not directly affect its own interests.
Apart from dicta in the Barcelona Traction case11 that
there has not been any advance from this position by the International Court of Justice.12 So there does not seem to be adequate justification for Judge Schwebel's argument in his Dissenting Opinion in the Court's decision on Nicaragua's request for interim measures;13 he goes too far when he suggests that the holding in the South West Africa case has been ‘decisively displaced’ by the Court's judgment in Barcelona Traction 14 and his conclusion that
An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another state in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved all States can be held to have a legal interest in their protection; they are obligations erga omnes,
The United States has, in the specific term of Barcelona Traction, ‘a legal interest’ in the performance by Nicaragua of its fundamental international obligations; even if it is not immediately and directly affected by the breaches of international law which it attributes to Nicaragua, the United States ‘should therefore be considered justified in invoking the responsibility’ of Nicaragua as the state which, the United States maintains, is at root responsible for the internationally unlawful acts which are at issue in this case,
And the Court's decisions on applications to intervene in contentious actions have (unlike those of the European Court of Justice which is untroubled by lack of compulsory jurisdiction) also been restrictive.15
So problems which do not involve any direct injury to a particular state but rather affect the international community as a whole cannot be dealt with by means of bilateral claims for a declaratory judgment. In the absence of an actio popularis such problems, and in particular regimes laying down rules for areas such as the deep sea-bed16 or outer space17 declared to be the common heritage of mankind will depend on organizational mechanisms of enforcement. For in so far as the concept of responsibility to the international community as a whole is a reality this is through (p.215) the functioning of international organizations rather than any formal judicial procedure. International organizations provide a partial substitute for the lack of any general action on behalf of the world community and also for the lack of compulsory judicial settlement.18
(ii) International crimes and judicial remedies
The inadequacy of the traditional bilateral procedure as a deterrent against breaches of international law and as a mechanism for dealing with such breaches has led some writers to advocate the development not only of an action on behalf of the international community, but also of the international criminal responsibility of states.19 They reject the idea that the only possible consequence of a breach of international law is the duty to make reparation. Clearly there are enormous problems with the transfer of the concept of criminal responsibility from municipal to international law. But it is possible to argue that the ideas of guilt and punishment have a place in state practice. Those General Assembly and Security Council resolutions that condemn the behaviour of states could be said to constitute punishment by disgrace, a means of declaring international criminal responsibility. An injured state may seek such a resolution as a remedy for itself; the resolution represents the response of the international community to the unlawful behaviour of states.
The organs of the League of Nations were less ready than their counterparts in the United Nations to pass such resolutions condemning the activities of Member States, perhaps because the idea of an international organization to deal with the fundamental problem of maintaining peace was new and so its organs were hesitant to risk causing offence and thus weakening the influence of the League. Anyhow there are very few unequivocal condemnations of state conduct by the League of Nations.20 The United Nations General Assembly and Security Council were more ready to pass such resolutions, few at first and then an increasing number.21 To a very limited extent these resolutions, representing the reaction of the international community to events, make up for the lack of compulsory third party settlement of disputes and for the limitations of bilateral claims, and also for the lack of an international legislature.22
These resolutions often state that certain activities are contrary to international law, or a breach of the United Nations Charter or of some other treaty, or of earlier resolutions of the political organs of the United Nations. The majority of them call on the offending state to alter its behaviour so as to comply with international law and also to restore the previously existing situation. Thus the Security Council and General Assembly often call for the withdrawal of troops from a state invaded in violation of international law or occupied illegally.23 The Security Council (p.216) has called for the release of prisoners24 and the return of property25 unlawfully taken. Also the Security Council and General Assembly have declared measures to be illegal and invalid.26
Most of the condemnations by the political organs of the United Nations are for the unlawful use of force, violations of territorial integrity, colonialism, and apartheid. Some condemnations are expressed in general terms unrelated to the behaviour of any particular state, such as General Assembly Resolution 1514 on the right to self-determination, which condemns alien subjugation of states, General Assembly Resolution 3514 condemning the corrupt practices of transnational and other corporations,27 General Assembly Resolution 2714 against the violation of human rights,28 General Assembly Resolution 2674 condemning aggressive wars, and General Assembly Resolution 3452 rejecting the use of torture.29 Other resolutions refer to specific behaviour of a particular state. Rhodesia, South Africa, Portugal, and Israel are the states most often subjected to censure by the United Nations organs. Recently regional organizations have begun to follow the United Nations practice of issuing condemnations.30
Occasionally the resolutions go further than condemnation and demand that the offending state should pay reparation to its victim. This goes beyond punishment by disgrace and represents an attempt to extract a remedy from the wrongdoer. Such resolutions are uncommon; none were passed by the organs of the League of Nations. The question of demanding reparation was first considered by the United Nations Security Council in 1955.31 The Security Council passed a resolution condemning Israel for its violation of the cease-fire, the armistice, and the United Nations Charter, but did not attach a demand for reparation. The representatives of the United Kingdom, France, and the USA discussed this issue: they all agreed that compensation was due for injury but France said that the Security Council was not the organ best equipped or legally competent to arrange for fair compensation in this instance.
In 1964 the Security Council actually demanded the payment of compensation for the first time. They deplored the incidents caused by the army of the Republic of Vietnam's invasion of Cambodia and requested that just and fair compensation should be offered to Cambodia.32 A few similar demands by the Security Council and, after 1974, by the General Assembly followed this.33 There is no evidence that any of these resolutions were ever acted on. The response of the President of Guinea to Security Council Resolution 290 shows the limits of such demands. He declined the offer made by the Secretary-General to send officials to help assess the damage caused by Portugal. He said that the moral and material damage could not be expressed in monetary terms especially as the aggressor persisted in denying the offence; the only reparation acceptable to Guinea would be (p.217) the immediate independence of Angola, Mozambique, and Guinea.34 The future conduct of the wrongdoing state is often more important to its victim than any award of compensation for past unlawful action. These brief demands for reparation for damage caused by unlawful actions do not convey much information about the nature of the reparation envisaged. It is not clear how the compensation is to be calculated; it is not obvious why reparation is demanded in some cases but not others. Certainly such requests are exceptional.
It might be argued that the activities—invasions, occupations, the practice of apartheid, colonialism, and the violation of human rights—that have been condemned by the political organs of the United Nations amount to international crimes. The two main elements involved in the suggested international criminal liability of states are, first, the idea that certain breaches of international law are particularly serious with the result that, second, responsibility to the international community as a whole is involved, for the interests affected are wider than those involved in injury to a particular state. But the concept of international criminal responsibility is not yet firmly established in international law, and when the International Law Commission in their current work on state responsibility accepted Article 19 on International Crimes they were engaged in progressive development rather than codification of the law:
Article 19—International Crimes and International Delicts
1 . An act of a state which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject matter of the obligation breached.
2. An internationally wrongful act which results from the breach by a state of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognised as a crime by that community as a whole, constitutes an international crime.
3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia from:
(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;
(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;
(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;
(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.
Apart from the obvious problems over the substantive definition, over which activities are to constitute international crimes,36 the most important practical problem is the implementation of this Article. How are such provisions to be given any practical effect? The International Law Commission is now working on this as part of the second part of its draft on the ‘content, form and degrees of international responsibility’, but progress is slow. The present draft Articles do not mention judicial proceedings as a possible response to international crime, and so are not concerned with judicial remedies. Questions as to whether an international crime should give a right to any state to bring an actio popularis for a declaratory judgment, and whether an international crime may create an obligation to pay punitive damages to injured states, are not resolved. For the International Law Commission in its consideration of the content, form, and degrees of international responsibility has understandably distinguished international judicial decisions (an exceptional response to alleged breaches of international law) from general state practice, and concerned itself with drawing up rules for the latter.37 The Rapporteur has found that international judicial decisions are not of much relevance for an understanding of general state practice, of non-judicial responses to breaches of international law. He has also stated that the role of the Commission is not to provide guidance to international tribunals.38
Thus draft Article 6 sets out the obligations of states when an international crime has been committed: obligations not to recognize, not to help, and to use United Nations procedures where applicable.39 Because not exhaustive Article 6 leaves open the possibility of special judicial remedies as a response to international crimes, but this possibility, like that of implementing a general regime for international crimes, appears very remote. There is little sign at present of state acceptance of, or enthusiasm for, international criminal responsibility. In fact it is not clear what the International Law Commission's proposals would add to existing United Nations procedures, and it is this question of the relationship between the two that is one of the main objects of concern of those members of the Commission not happy with the idea of creating a category of ‘international crimes’.
It is interesting to compare Article 19 with the work of the International Law Commission on ‘International liability for injurious consequences arising out of acts not prohibited by international law’. Whereas the former envisages international criminal responsibility for ‘a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive (p.219) pollution of the atmospheres or of the seas’, the latter proposes to deal with polluting activities by co-operation and as a last resort by imposing liability for harm caused by what are recognized as lawful activities.40 Of course there is no necessary conflict between the two but state practice in this area suggests that the latter is the more constructive and fruitful approach.
(iii) Municipal law remedies for breaches of international law
Better established than the international criminal responsibilty of states is the international criminal responsibility of individuals;41 under customary international law any state may exercise jurisdiction over an individual charged with slavery, piracy, war crimes, or crimes against humanity. More recently treaties have been made to bind contracting states either to prosecute or to extradite those allegedly guilty of offences such as hijacking and attacks on diplomats when found on their territory.42 This method of turning to municipal law mechanisms and remedies to deal with breaches of international law, of imposing municipal criminal liability on an individual rather than attempting to impose international responsibility on his state or to establish an international criminal tribunal, may be seen also in treaties on polluting and ultra-hazardous activities. Thus the 1954 Convention for the Prevention of the Pollution of the Sea by Oil43 (entered into force 26 July 1958) prohibits the discharge of oil within specified areas and says that the flag state is to make contravention of this prohibition an offence under its own law. Two Conventions on dumping, The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (entered into force 30 August 1975), Article VII, and the Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft44 (entered into force 7 April 1974), Article XIV, say that parties must take appropriate measures to prevent and punish conduct in breach of the Convention. The 1973 IMCO Convention for the Prevention of Pollution from Ships45 (entered into force 2 October 1983) and the Paris Convention for the Prevention of Marine Pollution from Land-based Sources46 (entered into force 6 May 1978) contain similar provisions. Two of these Treaties dealing with polluting activities include more detailed directions as to the type of punishment required. The 1954 Convention for the Prevention of the Pollution of the Sea by Oil, Article VI, says that penalties should be ‘Adequate in severity to discourage any such unlawful discharge and shall not be less than penalties which may be imposed under the law of that territory in respect of the same infringements within the territorial sea’. The 1973 IMCO Convention, Article 4(4), is similar: ‘Penalties specified under the law of a party pursuant to the present Article shall be (p.220) adequate in severity to discourage violations of the present convention and shall be equally severe irrespective of where the violations occur’, but the possibility of different states imposing sanctions of different degrees of severity remains. Finally the 1982 UN Law of the Sea Convention apparently also provides for the imposition of criminal liability by states in order to protect and preserve the marine environment.47
Treaties also provide for the imposition of civil liability under municipal law: several treaties on aviation, nuclear and maritime activities, and the utilization of river basins require that states parties ensure a municipal remedy for damage caused by certain defined activities. These treaties create uniform regimes; their implementation is left to states parties. The Preamble to the Paris Convention on Third Party Liability in the Field of Nuclear Energy48 (entered into force 1 April 1968) reflects this aim. The states parties are ‘convinced of the need for unifying the basic rules applying in the various countries to the liability incurred for such damage’, but it is possible, even probable, that the interpretation and application by the states parties of the provisions of these treaties will vary.49
In the field of maritime pollution the 1969 International Convention on Civil Liability for Oil Pollution Damage50 (entered into force 19 June 1975) states that the owner of a ship shall be responsible in municipal law for oil pollution produced by spillage from his ship, which causes damage on the territory of a contracting state. This responsibility is strict. This is a common feature of the treaties which provide for municipal law liability for polluting and ultra-hazardous activities, and obviously a practical necessity, as proof of fault would often be extremely difficult or impossible. It is not just deliberately caused pollution or other harm which these conventions are designed to control. The various conventions allow certain defences to the imposition of strict liability; the extent of these is not uniform in all the conventions.
The 1971 Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage51 (entered into force 16 October 1978) was designed to supplement the Civil Liability Convention, ‘Considering that this regime does not afford full compensation for victims of oil pollution damage in all cases while it imposes an additional financial burden on shipowners’. Accordingly it provided that oil cargo owners should bear part of the economic consequences of oil pollution damage resulting from the escape or discharge of oil carried in bulk at sea by ships. The 1976 London Convention on Civil Liability for Oil Pollution Damage from Offshore Operations52 (not yet in force) provides that the operator of an offshore facility shall be strictly liable under municipal law for damage covered by the Convention. The Tanker Owners Voluntary Agreement on Liability for Oil Pollution (TOVALOP),53 the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL),54 (p.221) and the Offshore Pollution Liability Agreement (OPOL)55 supplement these Conventions. These are all contracts subject to English law. TOVALOP is an agreement between tanker owners that they will clear up spills caused by their ships or compensate governments for the clean-up expenses they incur as a result of such spills. In CRISTAL the cargo owners set up a fund to reimburse the expenses of clean-up operations by tanker owners and to compensate victims who would otherwise receive only inadequate compensation. Finally, according to OPOL, the operators of offshore facilities used for the exploration or production of oil and gas agree to compensate the victims of pollution and also the state which incurs costs for taking remedial measures.56
Article 235(2) of the 1982 UN Convention on the Law of the Sea, which deals with maritime pollution also, requires contracting states to make provision for the imposition of municipal liability:
States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.
The multilateral Conventions on nuclear activities also provide for municipal liability as the main mechanism for enforcing obligations under the Conventions.57 Under the Vienna Convention on Civil Liability for Nuclear Damage58 and the Paris Convention on Third Party Liability in the Field of Nuclear Energy the operator of a nuclear installation is liable under municipal law for damage caused by a nuclear incident. Also the United States has concluded a series of agreements governing the entry of the Nuclear Ship Savannah into foreign waters in which it is stipulated that the United States will be liable under the law of the port state for damage caused by the NS Savannah.59 West Germany has made a similar set of treaties on the Nuclear Ship Otto Hahn.60 A final example of a treaty providing for municipal law liability is the 1974 Nordic Environment Protection Convention61 (entered into force 5 October 1976). According to this agreement between Denmark, Finland, Norway, and Sweden, anyone in the territory of a contracting state affected by a nuisance caused by environmentally harmful activities in another contracting state has the right to institute proceedings in a court of that state.
Many of the common characteristics of these Treaties providing for municipal liability may be explained by the requirements of the insurance industry. Thus liability is channelled to one person to make it clear who should insure against the risks involved.62 Also liability is limited. Under the 1969 Civil Liability Convention, fault on the part of the shipowner may prevent his relying on this limitation of liability, but other conventions do not follow this approach. Another common feature is the requirement that (p.222) the person potentially liable for damage should maintain insurance or some other form of financial security to cover his liability.63 All these treaties make express provision as to which courts are to have jurisdiction to decide on and assess liability. These provisions are not uniform.64
Thus several treaties require the imposition of municipal liability, civil or criminal, for breach of their terms or of regulations drawn up by states in accordance with the treaty. That is, municipal law procedures are used to enforce acceptable standards and modes of behaviour. The treaties create a uniform regime, binding on states parties under international law, and it is left to the parties to implement the regime under their own legal systems. Such treaties, designed to unify various municipal law rules, are well established in civil aviation and marine transport. Now the interesting development of increasing resort to such treaties to enforce international law standards may be observed. The adoption by international arbitral tribunals of municipal law remedies was discussed earlier; here a different policy may be seen. States have chosen to provide for remedies for behaviour made unlawful by treaties and for harm caused by activities defined by treaty at the municipal rather than at the international level.
(iv) Reparation for injuries caused by lawful activities
For states have on the whole, despite the famous Principles 21 and 22 of the Stockholm Declaration,65 chosen not to deal with ultra-hazardous and polluting activities by the imposition of state responsibility.66 And out of the many recent treaties establishing regimes to deal with these activities, the 1972 Convention on International Liability for Damage caused by Space Objects67 (entered into force 1 September 1972) remains exceptional in its detailed provisions on state responsibility. Often treaties, bilateral and multilateral, provide only or mainly for co-operation in the control of pollution.68 Such treaties do not contain any provisions on international responsibility or compensation for polluting activities; they aim at the prevention of harm through the improvement of each state's knowledge of the problem and co-operative efforts to cut down pollution. Some treaties require the imposition of municipal liability as described above. Those treaties that do provide for international responsibility generally do so in a single article69 or simply reserve the possibility of international responsibility.70
In fact in the outer space and nuclear Treaties liability is incurred only when certain defined activities cause harm; the activity itself is not unlawful. The International Law Commission is accordingly now working on a draft set of rules on international liability for injurious consequences arising out of acts not prohibited by international law as a separate project from its work on state responsibility.71 But there is a wide division of (p.223) opinion among writers as to the desirability of this approach and the members of the Commission are themselves divided on whether the project is worthwhile. The future of this project is uncertain: the scope of the draft articles and their ultimate status have still to be determined. There are those who argue that the principles of strict liability provide the appropriate means to deal with ultra-hazardous and polluting activities and that the International Law Commission approach is fundamentally misconceived, even a dangerous threat to the regime of state responsibility.72 But in so far as the existence of a genera! principle of strict liability in this area is not universally accepted, and as the emphasis in the practice of states appears to be on co-operation rather than the imposition of strict liability, it may be that they are fighting a losing battle.
However, the International Law Commission approach does raise several important questions concerning remedies. The scheme at present put forward by the Special Rapporteur envisages the payment of reparation as a last resort arising only when the other provisions have not prevented the occurrence of harm.73 Sections 4–7 govern assessment of compensation; these are very flexible guidelines: everything depends on their interpretation and application in a particular situation.74 Several members of the Commission have expressed reservations over these provisions;75 one member has doubted whether they would be viable in the absence of specific provision for a dispute settlement mechanism.76
These draft provisions are apparently intended to serve as guidelines both for states parties involved in negotiating a settlement and for a third party authorized to make recommendations or decisions on compensation. They certainly represent a marked departure from the traditional rules, such as they are, evolved by judicial and arbitral bodies, on the assessment of damages. The influence of McDougal is clear; the reparation due ‘shall be ascertained in accordance with the shared expectations of the States concerned’, ‘account shall be taken of the reasonableness of the conduct of the parties’; account may also be taken of listed ‘relevant factors’. These provisions have been attacked for not providing objective standards. But this is an area where objective standards and perhaps even general principles seem to be illusory goals. The attempt to balance interests, despite the obvious difficulties involved, is more likely to produce economically efficient and/or socially just results (and—more important—results acceptable to the states involved) than the simple imposition of strict liability with a consequent duty to pay damages assessed according to traditional rules.77 But the implementation of any new set of guidelines to supplement existing rules on the assessment of damages by more flexible rules on compensation for harm caused by lawful activities is hardly an immediate possibility.
Thus recent developments, particularly in the area of polluting and ultra-hazardous activities, highlight the limitations of the imposition of state (p.224) responsibility and of traditional judicial remedies. Most of the discussion in this chapter of possible responses to these limitations may seem of limited practical importance: apart from the move by states to municipal as opposed to international judicial remedies other suggested responses—the creation of an actio popularis, of international criminal responsibility, of liability for injurious consequences of lawful acts—still appear only remote possibilities. And a large part of the explanation for this lies in a relative lack of concern over mechanisms for implementing possible new regimes; the treatment of judicial remedies is one symptom of this lack of concern. For the question of what role, if any, they are to play has been largely ignored. But if new mechanisms to supplement that of traditional state responsibility are to be evolved the question of judicial remedies should not be left as an afterthought. Their relationship with the rules governing general state practice must be worked out; if there are fundamental changes in the law of state responsibility it does not seem possible that judicial remedies will remain unaffected.
(1) See K. B. Hoffman (1976) ICLQ 509. An indication of the inadequacy of state responsibility as a means of dealing with polluting activities may also be found in the International Law Commission's attempt to draw up rules on ‘International liability for injurious consequences arising out of acts not prohibited by International law’. See ILC Yearbooks from 1980.
(2) See, for example, P. C. Jessup (1946) Col LR 903; R. Y. Jennings (1967) 2 HR 323, at 511.
(3) PCIJ Ser. A no. 1.
(5) (1962) ICJ Reports 319,
(7) (1966) ICJ Reports 4.
(11) (1970) ICJ Reports 4, at 32.
(12) The question of locus standi was raised again in the Nuclear Tests cases (1974) ICJ Reports 253 and 457. One of the Australian claims was that ‘The interference with ships and aircraft on the high seas and in the superjacent airspace, and the pollution of the high seas by radioactive fallout, constitute infringements of the freedom of the high seas’. However, the Court, because of its decision that there was no longer a dispute in existence and therefore no need for it to give a judgment, did not have to discuss this point. It did not have to decide whether a state could bring a claim for breach of customary international (p.225) law—in this case the infringement of the freedom of the high seas—without showing harm to its own interests or those of its nationals.
(13) (1984) ICJ Reports 4, at 190.
(14) Nor does the passage in the 1976 ILC Yearbook, Vol. ii, Part I, 28–54 provide unequivocal support for his position as he claims. For the Rapporteur, Ago, says, ‘The position taken in the judgment on the Barcelona Traction case is perhaps still too isolated to permit the conclusion that a definite new trend in international judicial decisions has emerged.’
(15) See the application by Malta for permission to intervene in the Tunisia/Libya case (1981) ICJ Reports 4 and the application by Italy in the Libya/Malta case (1984) ICJ Reports 3.
(16) Article 136 of the 1982 United Nations Convention on the Law of the Sea declares that the deep sea-bed is the common heritage of mankind. But neither Article 139 on ‘Responsibility to ensure compliance and liability for damage’ nor Article 187 on the jurisdiction of the sea-bed disputes chamber make any clear provision for an actio popularis. There is, however, a provision for Advisory Opinions in Article 191. Moreover, one of the functions of the Sea-bed Authority is to ‘exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of this Part … States Parties shall assist the Authority by taking all measures necessary to ensure such compliance in accordance with Article 139.’ There is no comparable body set up to regulate the High Seas, another area beyond national jurisdiction. In Part VII of the Convention which deals with the High Seas there is no mention of any responsibility owed to the international community. But Part XII on the Protection and Preservation of the Marine Environment contains provisions on the prevention of pollution generally and on enforcement measures open to interested states to secure compliance with the rules in this Part of the Convention. However, the absence of an international body such as the Sea-bed Authority means that the protection given to the community interest, rather than that of any particular state, is less strong.
(17) The Treaty on Principles governing the Activities of States in the Exploration and use of Outer Space including the Moon and other celestial bodies (1967) ILM 386 (entered into force 10.10.67) provides in Article 1, ‘The exploration and use of outer space, including the moon and other celestial bodies shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development and shall be the province of all mankind.’ However, here again there is no specific provision for the protection of the community interest. Thus the statements quoted above that certain areas are the common heritage of mankind are not supported by provisions enabling states other than those directly harmed by breaches of international law concerning these areas to obtain judicial remedies against the wrongdoing state.
(18) See, for example, M. Lachs in K. Venkata Raman (ed.), Dispute Settlement through the United Nations (1977), at 283.
(19) See especially the work of the International Law Commission: R. Ago (1976) (p.226) ILC Yearbook, Vol. ii, Part I, 24; F. V. García-Amador (1954) ILC Yearbook, ii. 24. See contra Q. Wright (1974–5) Virg. JIL 561; P. M. Dupuy (1980) RGDIP 449.
(20) The Assembly of the League made a statement on 24 Feb. 1933 that Japan had violated the Covenant by its aggressive occupation of Chinese territory. The Council of the League passed a resolution on 17 Apr. 1935 condemning the actions of Germany in rearming itself in breach of its treaty obligations. Finally the Council condemned attacks on Spanish merchant ships by Germany and Italy as morally repugnant and a violation of the Nyon agreement on 29 May 1937. See F. P. Walters, A History of the League of Nations (1952), at 494, 609–12, 726 respectively.
(21) By 1960 there had been a significant increase in the number of these resolutions. There has been no large variation in this number since then.
(22) Obviously it would be unjustified to regard such decision-making by the General Assembly (or by the Security Council) as a purely judicial process, but the need for the state proposing or supporting a resolution to justify its position and secure support from other states means that legal considerations play an important part in the decision-making. That is, although it should not be inferred from the absence of condemnation by the Security Council and Genera! Assembly that certain behaviour is permissible under international law—for it is notorious that it is political factors that determine whether a particular state is to be condemned or not—where a state's activities are condemned then this condemnation will be legally justifiable. See O. Schachter (1964) AJ 960; R. Higgins (1970) AJ 1.
(23) For example, the Security Council has called on Belgium to withdraw its troops from the Congo: (1960) UN Yearbook 97. Security Council Resolution 268 requests Portugal to withdraw its troops after an unlawful attack on Zambia: (1969) UN Monthly Chronicle no, 8, p. 34. Security Council Resolution 264 demands an end to the presence of South African troops in Namibia: (1969) UN Monthly Chronicle, no. 4, p. 3. The General Assembly made the same demand in Resolution 2871. General Assembly resolutions up to Resolution 3049 have been collected by D. J. Djonovich in United Nations Resolutions, Ser. 1. Accordingly references for General Assembly resolutions will be given only for later resolutions. The General Assembly in Resolution 31/106D also condemned Israel's continued occupation of Arab territories and called for its withdrawal: (1977) UN Monthly Chronicle, no. 1, p. 20.
(24) As in Resolution 317 which deplores the fact that Israel has not yet given effect to the Security Council's strong desire that Syrian and Lebanese military and security personnel abducted by Israelis should be released as soon as possible, and calls on Israel for their return: (1972) UN Monthly Chronicle, no. 8, p. 3. See also (1948–9) UN Yearbook 216 and 217.
(25) For example, in 1970 it asked Portugal to release the Guinea civilian plane and barge it had taken: (1970) UN Monthly Chronicle, no. 1, p. 28.
(26) For example, the General Assembly in Resolution 2652 declared illegal measures by the racist regime in Rhodesia to deprive people of their legitimate rights and entrench the policies of apartheid: (1971) UN Monthly (p.227) Chronicle, no. i, p. 52. The General Assembly and Security Council have passed a number of resolutions saying that Israeli measures in Jerusalem were invalid, or null and void, See General Assembly Resolution 2253, Security Council Resolution 252 (1968) UN Monthly Chronicle, no. 6, p. 3, General Assembly Resolution 3525, (1976) UN Monthly Chronicle, no. 1, p. 30. On the domestic effect of resolutions see C. C. Schreuer, Decisions of International Institutions before Domestic Courts (1981).
(27) (1976) ILM 180.
(28) (1971) UN Monthly Chronicle, no. 1, p. 81.
(29) (1976) UN Monthly Chronicle, no. i, p. 55.
(30) Thus the Organization of African Unity has condemned South Africa's policy of apartheid, the attitude of the United Kingdom towards Rhodesia, and NATO's gift of aid to Portugal. The Organization of American States has condemned the Dominican Government for its violation of a treaty, and also the ties which Cuba has established with the Sino-Soviet bloc in contravention of the principles of the OAS Charter. See L. L. Randolph, Third Party Settlement of Disputes in Theory and Practice (1973), at 39a and 42a
(31) Whiteman Digest, xii. 164, The question was next discussed by the Security Council in 1960 in the context of the Eichmann case: (1960) UN Yearbook 196. See also Whiteman Digest, v. 208. The Security Council declared that the transfer of Eichmann from the Argentine was a violation of its territorial sovereignty and incompatible with the United Nations Charter. It requested Israel to make appropriate reparation in accordance with the United Nations Charter and the rules of international law. The Israeli foreign minister replied that his government had apologized for the violation of Argentine law and denied that there had been a violation of Argentine sovereignty. With regard to the request for appropriate reparation, he said that Israel's expression of regret was adequate, The representative of the USSR raised the question of whether Israel should be requested to make reparation in the more concrete form of handing back the illegally seized Eichmann. The representatives of France, the United Kingdom, and the USA agreed that the Argentine had received appropriate satisfaction from the debate in the Security Council, Israel's expression of regret, and the adoption of the resolution. The return of Eichmann was not necessary, Argentina and Israel finally issued a joint statement on 3 Aug. 1960 resolving ‘to view as settled the incident which was caused in consequence of the action of the citizens of Israel, which violated the basic rights of the state of Argentina’. Argentina thus tacitly dropped its claim for any reparation beyond this admission of responsibility by Israel.
(32) (1964) UN Yearbook 145.
(33) In 1969 the Security Council again suggested the payment of reparation. In Resolution 262 they condemned Israel's attack on Beirut airport as a violation of the cease-fire agreement and of the United Nations Charter and said that Lebanon was entitled to appropriate redress for the destruction it suffered: (1969) UN Monthly Chronicle, no. 1, p. 3. In Resolution 290 the Security Council condemned Portugal for its attack on Guinea and demanded full compensation by Portugal for the extensive damage to life and property (p.228) caused by armed attack and invasion. They requested the Secretary-General to assist the Government of Guinea in the assessment of the extent of the damage involved: (1971) UN Monthly Chronicle, no. 1, p. 3. in 1976, the Security Council deplored South Africa's invasion of Angola and called on South Africa to meet the just claims of Angola for full compensation for the damage and destruction inflicted on its state and for the restoration of the equipment and materials the invading forces had seized: (1976) UN Monthly Chronicle, no. 4, p. 5. Finally in 1981 the Security Council demanded the payment of reparation by Israel for its attack on the Iraqi nuclear reactor: (1981) ILM 963.
It was not until 1974 that the General Assembly in Resolution 3240C requested reparation: (1974) UN Monthly Chronicle, no. 11, p. 63. it said that Israel was responsible for the destruction and devastation of an Arab town in breach of the Geneva Convention, and requested the establishment of a special committee to survey the destruction and assess the nature, extent, and value of the damage. In Resolution 32/9 the General Assembly held that South Africa was liable to pay reparation to Namibia for the damage caused by its illegal occupation of the territory of Namibia and its acts of aggression against the Namibian people since the termination of the Mandate in accordance with General Assembly Resolution 2145: (1977) UN Monthly Chronicle, no. ii, p. 83.
(34) (1971) UN Monthly Chronicle, no. 1, p. 18.
(35) (1976) ILC Yearbook, Vol. ii, Part II, p. 117.
(36) On this see, for example, P. M. Dupuy (1980) RGDIP 449.
(37) See (1981) ILC Yearbook, Vol. ii, Part I, p. 79, at 83.
(38) See (1981) ILC Yearbook, i. 124.
(39) Article 6 provides:
ʻ (1.) An internationally wrongful act of a State, which constitutes an international crime, entails an obligation for every other state: (a) not to recognize as legal the situation created by such act; and (b) not to render aid or assistance to the author State in maintaining the situation created by such act; and (c) to join other States in affording mutual assistance in carrying out the obligations under (a) and (b).
(2.) Unless otherwise provided for by an applicable rule of international law, the performance of the obligations mentioned in paragraph 1 is subject mutatis mutandis to the procedures embodied in the United Nations Charter with respect to the maintenance of international peace and security.
(3.) Subject to Article 103 of the United Nations Charter, in the event of a conflict between the obligations of a State under paragraphs 1 and 2 above, and its rights and obligations under any other rule of international law, the obligations under the present article shall prevail.ʼ (1982) ILC Yearbook, i. 199. The Special Rapporteur has now replaced this by draft Article 14 ((1984) ILC Yearbook, i. 20) which is essentially unchanged.
(40) See ILC Yearbooks from 1980.
(41) But problems similar to those with the international criminal responsibility of states have arisen for the International Law Commission in its work on the (p.229) draft Code of Offences against the Peace and Security of Mankind. (See ILC Yearbooks from 1983.) The International Law Commission was originally asked to draft this code in 1947 but went ‘from enthusiasm to hesitation to procrastination’. At the request of the General Assembly it has now returned to the topic. One of the many difficulties facing the Commission is the problem of harmonizing its work on this topic with that on Article 19 on the international criminal responsibility of states. Another is the question of implementation. The Commission's request for guidance from the General Assembly as to whether its mandate extended to the preparation of a statute providing for an international criminal jurisdiction did not receive a specific reply (see (1984) ILC Yearbook, i. 5).
(42) For example, there are three conventions dealing with the problem of attacks on aircraft: the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (entered into force 4 Dec. 1969): (1962–3) ILM 104; the 1970 Hague Convention for the Suppression of the Unlawful Seizure of Aircraft (entered into force 14 Oct. 1971): (1971) ILM 133; and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (entered into force 26 Jan. 1971): (1971) ILM 1151. See discussion by E. McWhinney, The Illegal Diversion of Aircraft and International Law (1975); A. Abramovsky (1974) Col. JTL 381 and (1975) Col. JTL 451; C. S. Thomas and M. J. Kirby (1973) ICLQ 163. See also the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (entered into force 20 Feb. 1977): (1974) ILM 41; and discussion by L. M. Bloomfield and G. Fitzgerald, Crimes against Internationally Protected Persons: Prevention and Punishment (1975); C. L. Rozakis (1974) ICLQ 32, and M. C. Wood (1974) ICLQ 791; the Convention on the Suppression and Punishment of the Crime of Apartheid (entered into force 18 July 1976): (1974) ILM 50; the Convention on Torture as an International Crime (not yet in force); (1980) ILM 647; the Convention on the Physical Protection of Nuclear Material (not yet in force): (1979) ILM 1419.
(43) (1970) ILM 1.
(44) (1972) ILM 262.
(45) (1973) ILM 1319.
(46) (1974) ILM 352.
(47) Part XII (1982) ILM 1261, at 1308.
(48) (1961) A J 1082; Supplement in (1962) ILM 685.
(49) Thus the rules of the Warsaw Convention for the Unification of Rules relating to International Carriage by Air, Cmd. 4284, are not applied uniformly by the courts of the different contracting states. R. H. Mankiewicz has described how international conventions for the unification of private law tend to become disunified by the decisions of national courts: (1972) ICLQ 718. See also J. A. Cabranes (1966) ICLQ 660; A. Kean (1970) ICLQ 124.
(50) (1970) ILM 45, revised in 1976 Protocol: (1977) ILM 617. New proposals for revision in (1984) ILM 177.
(51) (1972) ILM 284, revised in 1976 Protocol: (1977) ILM 621. New proposals for revision in (1984) ILM 195.
(53) (1969) ILM 497.
(54) (1971) ILM 137.
(55) (1974) ILM 1409.
(56) See G. L. Becker (1974) 5 JMLC 609 for a detailed discussion of TOVALOP and CRISTAL.
(57) Even though the degree of state involvement in nuclear activities is not obviously less than that in operations in outer space, and for the latter international responsibility of the state is provided for in the 1967 Outer Space Treaty: (1967) ILM 386. See below at n. 67.
(58) (1963) ILM 727.
(59) See D. C. Piper in De lege pactorum, Essays in Honour of R. R. Wilson (1970), 233 for a detailed discussion of these agreements.
(60) See B. Rüster and B. Simma (eds.), International Protection of the Environment (1975), i. 482.
(61) (1974) ILM 591.
(62) In the 1969 Civil Liability Convention it is the shipowner who is liable, partly because the registered owner is perhaps the easiest person to identify of those involved in the carriage of oil by sea. In the 1976 London Convention on Civil Liability for Oil Pollution Damage from Offshore Operations and in the conventions on nuclear activities it is the operator of the installations who is liable.
(63) It is left to the national state of such a person to specify the type and terms of this security. Thus in the 1969 Civil Liability Convention, Article VII says that a ship registered in a state party to the Convention is obliged to maintain insurance or other financial security to cover its liability of the type and on the terms specified by the competent public authorities, and it must obtain a certificate from its state of registration that it has complied with this. The Paris, Brussels, and Vienna Conventions on nuclear activities contain similar provisions. Under the Supplement to the Paris Convention, Article 3, if the operator is not able to provide adequate security then public funds will be used for this purpose. Likewise the Vienna Convention, Article 7, says that the installation state is to ensure payment of compensation to the extent that the insurance available is inadequate. The 1976 London Convention differs from the other agreements in its provisions on the question of security. It is not possible at present to obtain insurance to cover the amount set under this convention for the limit of liability. Therefore the convention stipulates a minimum insurance requirement. The controlling state (that is, the state with jurisdiction over the offshore operations) has the power to specify the amount of security it requires, and this may be above the minimum set by the convention, as well as the type and terms of the security.
(64) In the 1969 Civil Liability Convention it is the courts of the state where damage occurred that may exercise jurisdiction (see The Times, 13 Nov. 1978 on the Amoco Cadiz). The Fund Convention also accepts this where such a state is party to both the Civil Liability Convention and the Fund Convention. Where it is a party to the former only, then it is the courts of the state of (p.231) the fund headquarters that have jurisdiction. Of the nuclear conventions, the Vienna Convention, Article II, assigns competence to the courts of the state where damage is suffered, or if this is outside state territory then jurisdiction rests with the courts of the state of the installation. Under the Brussels Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear material (entered into force 15 July 1975): (1972) ILM 277, the claimant has the right to choose the court in which he will bring his action. The Paris Convention provides jurisdiction for the courts competent in accordance with the law of the contracting state in whose territory the installation causing the harm is situated. The Savannah agreements give jurisdiction to the state of the port where damage is suffered. The 1976 London Convention allows a choice as to which courts are to have jurisdiction: it may be either those of the state where damage occurs or else those of the state which controls the offshore installation.
(65) The Stockholm Declaration made at the end of the 1972 United Nations Conference on the Human Environment ((1972) ILM 1416) apparently seeks to establish the principle of international responsibility for transboundary pollution. Principle 21 lays down that ‘States have in accordance with the Charter of the United Nations and the principles of international law the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’. Principle 22 continues, ‘States shall co-operate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of states to areas beyond their jurisdiction’. Probably this should be construed as a statement of aspiration rather than of existing law.
(66) This is not the place for a lengthy consideration of the question of the role of state responsibility in polluting and ultra-hazardous activities, but what is particularly striking from a study of state practice is the lack of instances of payment of damages for polluting activities on the basis of state responsibility in customary international law. States choose to deal with the problem by making treaties or, increasingly, by co-operating with other states to work out satisfactory regimes. There are apparently no clear instances of one state acknowledging that it has incurred liability under customary international law for injury caused to another state by polluting or ultra-hazardous activity conducted on its territory or by its nationals. Although the recent claim by Canada against the USSR for six million dollars for damage caused by a nuclear-powered satellite in 1978 was based not only on the Convention on International Liability for Damage caused by Space Objects but also on ‘general principles of international law’, it is not clear that the Russian payment of three million dollars represents an acknowledgement that the latter basis of claim was well founded. See the claim at (1979) ILM p. 899, the settlement at (1981) ILM 689, and C. Q. Christol (1980) AJ 346, In the case of the Torrey Canyon ((1970) ILM 633), compensation was paid to the French and (p.232) British Governments by the shipowners, not by any state. The issue of the international responsibility of flag states was not raised. See also the Sedco blow-out. ((1983) ILM 580). The United States Government paid compensation to Japan for injury caused to a group of islands and their fishing industry by the Marshall Islands nuclear test, but they made it clear that this did not constitute an admission of international liability but was merely an ex gratia payment (237 UNTS 197). Similarly certain Swiss farmers were compensated for damage resulting from air pollution caused by a factory in German territory (H. Smets in The Avoidance and Settlement of International Environmental Disputes (1974)) and in 1974 Liberia paid compensation to Japan for Japanese fishermen injured by pollution from a Liberian tanker ((1975) RGDIP 842). No doubt there are other similar cases not widely reported. Nor does international arbitral practice give much guidance on the question whether there is international responsibility for polluting and ultra-hazardous activities. The two cases most often relied on by writers as support for their assertion of the existence of international responsibility for polluting activities—the Trail Smelter arbitration (3 RIAA 1905) and the Corfu Channel case ((1949) ICJ Reports 4) —are not convincing precedents. See A. P. Rubin (1970–1) Oregon LR 259, It is doubtful whether it is possible or desirable to extrapolate from the rules of state responsibility for injury to a foreign national by a state within its own territory a rule imposing responsibility on a state for injury caused by an activity within its territory to a foreign national outside its territory or to the interests of another state. See K. B. Hoffman (1976) ICLQ 509. A similar objection applies to any attempt to derive a rule prohibiting harmful transboundary pollution from the rules governing the activities of armed bands. See contra I. Brownlie (1973) Int. Rel. 240.
(67) (1972) AJ 702; see C. Q. Christol (1980) AJ 346.
(68) For example, the Bonn Agreement for Co-operation in dealing with the Pollution of the North Sea by Oil (entered into force 9 Aug. 1969): (1970) ILM 359; The Agreement between the United States and Germany on Co-operation in Environmental Matters: (1974) ILM 598; The Convention for the Protection of the Mediterranean Sea against Pollution (entered into force 12 Feb. 1978): (1976) ILM 290.
(69) The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (entered into force 30 Aug. 1975), Article X: (1972) ILM 1294 and (1979) ILM 516; The Convention for the Protection of the Mediterranean Sea against Pollution (entered into force 12 Feb. 1978), Article XII: (1976) ILM 290; The Convention on the Protection of the Marine Environment of the Baltic Sea (entered into force 3 May 1980), Article 17: (1974) ILM 544. Article 235 of the UN Convention on the Law of the Sea (not yet in force): (1982) ILM 1261, definitely refers to international responsibility for activities which violate Part XII of the Convention which deals with the Protection and Preservation of the Marine Environment. This says, ‘States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with the international law’.
(p.233) However, it is recognized that the law on this area is still not fully developed. Paragraph 3 adds, ‘With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall co-operate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation such as compulsory insurance or compensation funds.’ See also the Final Act of the Conference of Plenipotentiaries on the Protection and Development of the Marine Environment of the Wider Caribbean Region, Article 14: (1983) ILM 22; Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Article 15: (1981) ILM 729; Agreement governing the Activities of States on the Moon and other Celestial Bodies, Articles 14 and 18: (1979) ILM 1434.
(70) Two of the treaties on nuclear activities expressly reserve the possibility of international responsibility: The 1963 Vienna Convention on Civil Liability for Nuclear Damage (entered into force 12 Nov. 1977), Article XVIII: (1962–3) ILM 727, and the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy, Annex II, (entered into force in 1968): (1961) A J 1082. The International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (entered into force 6 May 1975), Article VII: (1970) ILM 25 also leaves open the possibility of an international claim. The 1973 Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil (entered into force 30 Mar. 1983): (1974) ILM 605 incorporates this Article by reference. Certain of the bilateral agreements made by the United States to govern the entry of the Nuclear Ship Savannah into foreign ports provide for settlement of claims under international law as an alternative to the main remedy under municipal law. Thus in the agreements with Greece, Norway, and Spain (TIAS 5099, 5576, 5626 respectively) it is provided that the states parties may negotiate a lump sum settlement, each state claiming on behalf of its own nationals and resident aliens. ‘In such negotiations, the question of liability and the amount of damage shall be subject to the mutual agreement of the two governments in accordance with the general principles of international law.’ Also in the agreement between the United States and Ireland (TIAS 5651), the Government of Ireland expressly reserves the right under international law to settle the claims under generally accepted principles of law and equity. Finally, a few of the many treaties concluded to deal with non-navigational uses of international waterways provide, with little elaboration, for the payment of compensation for damage caused where this is required by international law. See W. M. Bush, ‘Compensation and the Utilization of International Rivers and Lakes’ (1978), Cambridge (unpublished dissertation), at 164.
(71) ILC Yearbooks from 1980.
(73) (1982) ILC Yearbook, i. 224.
(1) If any activity does give rise to loss or injury, and the rights and obligations of the acting and affected States under the present articles in respect of any such loss or injury have not been specified in an agreement between those States, those rights and obligations shall be determined in accordance with the provisions of this section. The States concerned shall negotiate in good faith to achieve this purpose.
(2) Reparation shall be made by the acting State to the affected State in respect of any such loss or injury, unless it is established that the making of reparation for a loss or injury of that kind or character is not in accordance with the shared expectations of those States.
(3) The reparation due to the affected State under the preceding article shall be ascertained in accordance with the shared expectations of the States concerned and the principles set out in section 5; and account shall be taken of the reasonableness of the conduct of the parties, having regard to the record of any exchanges or negotiations between them and to the remedial measures taken by the acting State to safeguard the interests of the affected State. Account may also be taken of any relevant factor including those set out in section 6, and guidance may be obtained by reference to any of the matters set out in section 7.
(4) In the two preceding articles, ‘shared expectations’ include shared expectations which:
(a) have been expressed in correspondence or other exchanges between the States concerned or, insofar as there are no such expressions,
(b) can be implied from common legislative or other standards or patterns of conduct normally observed by the States concerned, or in any regional or other grouping to which they both belong, or in the international community.
(1.) The aim and purpose of the present articles is to ensure to acting States as much freedom of choice in relation to activities within their territory or control as is compatible with adequate protection for the interests of affected States.
(2.) Adequate protection requires measures of prevention that as far as possible avoid a risk of loss or injury and, insofar as that is not possible, measures of reparation; but the standards of adequate protection should be determined with due regard to the importance of the activity and its economic viability.
(3.) Insofar as may be consistent with the preceding articles, an innocent victim should not be left to bear his loss or injury; the costs of adequate protection should be distributed with due regard to the distribution of the benefits of the activity; and standards of protection should take into account the (p.235) means at the disposal of the acting State and the standards applied in the affected State and in regional and international practice.
(4.) To the extent that an acting State has not made available to an affected State information that is more accessible to the acting State concerning the nature and effects of an activity, and the means of verifying and assessing that information, the affected State shall be allowed a liberal recourse to inferences of fact and circumstantial evidence in order to establish whether the activity does or may give rise to loss or injury.
Factors which may be relevant to a balancing of interests include:
(1.) The degree of probability of loss or injury (i.e. how likely is it to happen?);
(2.) The seriousness of loss or injury (i.e. an assessment of quantum and degree of severity in terms of the consequences);
(3.) The probable cumulative effect of losses or injuries of the kind in question—in terms of conditions of life and security of the affected State, and more generally—if reliance is placed upon measures to ensure the provision of reparation rather than prevention (i.e. the acceptable mix between prevention and reparation);
(4.) The existence of means to prevent loss or injury, having regard to the highest known state of the art of carrying on the activity;
(5.) The feasibility of carrying on the activity by alternative means or in alternative places;
(6.) The importance of the activity to the acting State (i.e. how necessary is it to continue or undertake the activity, taking account of economic, social, security or other interests?);
(7.) The economic viability of the activity considered in relation to the cost of possible means of protection;
(8.) The availability of alternative activities;
(9.) The physical and technical capacities of the acting State (considered, for example, in relation to its ability to take measures of prevention or make reparation or to undertake alternative activities);
(10.) The way in which existing standards of protection compare with:
(11.) The extent to which the acting State:
(12.) The extent to which the affected State shares in the benefits of the activity;
(13.) The extent to which the adverse effects arise from or affect the use of a shared resource;
(15.) The extent to which the interests of:
(16.) The extent to which assistance to the acting State is available from third States or from international organizations;
(17.) The applicability of relevant principles and rules of international law.
Matters which may be relevant in negotiations concerning prevention and reparation include:
(I) Fact-finding and prevention
(1.) The identification of adverse effects and of material and non-material loss or injury to which they may give rise;
(2.) The establishment of procedural means for managing the activity and monitoring its effects;
(3.) The establishment of requirements concerning the structure and operation of the activity;
(4.) The taking of measures to assist the affected State in minimizing loss or injury.
(II) Compensation as a means of reparation
(1.) A decision as to where primary and residual liability should lie, and whether the liability of some actors should be channelled through others;
(2.) A decision as to whether liability should be unlimited or limited;
(3.) The choice of a forum in which to determine the existence of liability and the amounts of compensation payable;
(4.) The establishment of procedures for the presentation of claims;
(5.) The identification of compensable loss or injury;
(6.) The test of the measure of compensation for loss or injury;
(7.) The establishment of forms and modalities for the payment of compensation awarded;
(8.) Consideration of the circumstances which might increase or diminish liability or provide an exoneration from it.
(III) Authorities competent to make decisions concerning fact-finding, prevention and compensation.
At different phases of the negotiations of [sic] the States concerned may find it helpful to place in the hands of their national authorities or courts, international organizations or specially constituted commissions, the responsibility (p.237) for making recommendations or taking decisions as to the matters referred to in I and II.ʼ
(77) Various writers have suggested that economic efficiency should be the aim of international and national law on the environment. The lack of any helpful international arbitral precedents and the inadequacy of traditional doctrine in this area of the law has led writers to turn to economic theory for guidance as to how to deal with the problem of pollution. But the application of the theories of R. H. Coase (see his seminal work in (1958–61) 3 Journal of Law and Economics 1) and his more extreme follower R. Posner (Economic Analysis of Law (1972)) to this problem involves difficulties and shows clearly some of the weaknesses of the theories.
To obtain an optimal allocation of resources in this area demands that any activity whose benefit is greater than the costs it causes should be allowed to continue. Whatever mechanisms are employed to control polluting activities should be designed to secure this end. This approach to the problem of pollution has been much criticized and on several different grounds.
First the theory is open to attack as inadequate in terms of economic theory. It has been convincingly argued that Coase and Posner's theory rests on assumptions not realized in fact; the market often fails to achieve an optimal allocation of resources and not only because of the existence of transaction costs. It is not obvious that in the event of market failure the best means to achieve an economically efficient solution is to mimic the market. (Much has been written on this topic. See, for example, A. M. Polinsky (1973–4) Harvard LR 1655; A. A. Leff (1974) Virg. LR 451; A. Randall (1974) Natural Resources Journal 35.) Also, it is well known that where injury is caused to an interest or resource not in anyone's ownership then the operation of the market will not lead to an efficient allocation of resources. Thus on the national level injury to the environment, and on the international level injuries to areas beyond national jurisdiction or to unprotected interests, are not included in the cost of the activity that causes these injuries. As the polluter does not have to pay for all these injuries the market does not operate efficiently, the polluter is not charged with the full costs of his enterprise. A more fundamental problem is that of evaluating any injury to the environment. Any assessment of the costs and benefits of a polluting activity demands a consideration of factors not normally or easily expressed in monetary terms.
Secondly, it may be argued that economic efficiency in the sense of an optimal allocation of resources should not be the overriding consideration in policy making. It ought to be subordinate to the requirements of justice. Or, more fundamentally, it could be argued that economic efficiency is not a value at all, that it is not a standard by which situations are assessed as good or bad. Because of the many uncertainties involved in this area the decision as to which method of pollution control should be employed—to leave it to (p.238) the market, to try to mimic the market, to introduce regulations imposing liability or standard setting—is ultimately a question of faith. There are great difficulties involved in any attempt to decide which means of control would lead to economic efficiency, and if we abandon economic efficiency as the overriding goal the situation seems even more difficult. It was perhaps this desire for an apparently objective principle by which to assess the acceptability of a particular course of action that constituted the main attraction of economic efficiency as an aim. In fact in their treaties on polluting and ultra-hazardous activities states rely on a combination of these methods—the imposition of liability, prohibition, and standard setting.
The peculiar nature of the problems involved clearly makes it undesirable to rely on judicial remedies alone as a means of dealing with polluting and ultra-hazardous activities. Proof of causation and damage is likely to be difficult, as is any assessment of the extent of the damage. If the imposition of damages is to bring about an economically efficient solution and also to constitute an effective deterrent then it is necessary that the award should include all the costs involved including injury to the public good both on the national and international levels. An accurate calculation of the value to be given to public goods not usually assigned a monetary value is difficult, but if all costs are not included in damages and consistently calculated the deterrent effect will be weakened. The idea that the award of damages will deter, based partly on the theory that it is the aim of the polluter to maximize his profits, may not always be accurate. Sometimes outright prohibition may be necessary. In the area of polluting and ultra-hazardous activities the prevention of harm will often be more important to the victim than any subsequent award of damages.
H. Smets in The Avoidance and Settlement of International Environmental Disputes (1974) lists certain other weaknesses of damages as a remedy in this area. He discusses the problem of non-monetary loss, of inextensive loss, of slow procedure, heavy burdens of proof, and the desire of governments to make immediate compromises, to avoid the repetition of polluting activity rather than demand damages.