The Confusion About State Responsibility and International Liability

The variety of notions of responsibility and liability, used by many publicists, continues to be a source of confusion. It would, therefore, be very clarifying to introduce one meaning for one concept and, thus, use the notions as the ILC defines them. The survey of the several 1LC reports on responsibility and liability shows that the concepts have become more and more interrelated. A different approach might be needed on the subject of international liability in order not to diminish the usefulness these rules can have within the environmental fiel.

Type Student Contributions Information Leiden Journal of International Law , Volume 4 , Issue 1 , April 1991 , pp. 47 - 74 Copyright © Foundation of the Leiden Journal of International Law 1991

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References

1. Draft Articles on Slate Responsibility, II-2 Y.B. Int'l L. Comm'n, U.N. Doc. A/35/10 (1980); First Report on State Responsibility Special-Rapporteur R. Ago, II Y.B. Int'l L. Comm'n, U.N.Doc. A/CN.4/217 (1969).

2. E.g. Grotius, who was in favour of the fault concept referring to Roman culpa notion, see Bedjaoui , M. , Responsibility of Stales: Fault and Strict Liability, in R. Bernhardt (ed.), 10 EPIL 358, 359 ( 1987 ); see also for a thorough study on the culpa notion, the 2nd Report on State Responsibility by the new special rapporteur, G. Arangio-Ruiz, U.N. Doc. A/CN.4/425/Add. 1 (1989) at 4.Google Scholar

3. This approach was launched by Anzilotti and has been followed by writers like Brownlie, Jiménez de Aréhaga, O'Connell and Schwarzenberger, see e.g. I. Brownlie, State Responsibility, Part 1: System of the Law of Nations 39 (1983); this doctrine of objective responsibility has also been applied by the General Claims Commission in the Neer claim 4 U.N.R.I.A. A. 61–62 (1926); the Roberts claims id. at 80; see also the Caire claim 5 U.N.R.I.A.A. 529–531 (1929).

4. See Borchard, Theoretical Aspects of the International Responsibility of States, l Zaö VR 223,226 (1929); see also Starke, Imputability in International Delinquencies, 19 Brit.Yb.Int'l Law 104 (1938).

5. Draft Article 3 of the Draft Articles on State Responsibility, II-2 Y.B. Int'l L. Comm'n, U.N.Doc. A/35/10 (1980) states: “There is an internationally wrongful act of a State when; a. conduct consisting of an action or omission is attributable to the State under international law; and b. that conduct constitutes a breach of an international obligation of the State.”;.

6. E.g. L. Goldie has stated: “liability connotes exposure to legal redress once responsibility and injuryarising from a failure to fulfill that legal responsibility have been established”;, Goldie , L. , Concepts of Strict and Absolute Liability and the Ranking of Liability in Terms of Relative Exposure to Risk, 16 Neth. Yb.I.L. 175 , 176 ( 1985 ); see also OECD, Legal Aspects of Transfrontier Pollution 306 (1977).Google Scholar

7. Article 139 and see also Arts. 235 and 263 of this Convention, 211.L.M. 1261 (1982); See L. Goldie, supra note 6, at 180; Quentin-Baxter concludes that “liability, no less than responsibility refers in this Convention to the content of a primary obligation”;, II-1 Y.B. Int'l L. Comm'n 170 (1984).

8. H. Lauterpacht, 1 International Law 400–402 (1970); Benrubi , G. , State Responsibility and Hazardous Products Exports: A Solution to an International Problem, 13 Calif.W.I.LJ. 135 ( 1983 ).Google Scholar

9. A direct application of absolute liability is made in Article II of the Convention on International Liability for Damage caused by Space Objects, which provides that a launching state “is absolutely liable to pay compensation for damage caused by its space objects on the surface of the earth or to aircraft in flight”;, New York, Nov. 29,1972,101.L.M. 965 (1971). This is the first example of an international agreement imposing such absolute liability on States in their capacity as states, New York, November 29,1972,10 I.L.M. 965 (1971).

10. Jiménez de Aréchaga , E. , International Responsibility, in M. Sorensen (ed.), Manual of Public International Law 531 ( 1968 ).Google Scholar

11. Smith , B. , State Responsibility and the Marine Environment 115 ( 1988 ).Google Scholar

13. Convention on the International Liability for Damage Caused by Space Objects, New York, Nov. 29, 1972,101.L.M. 965 (1971).

14. 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy; 1962 Brussels Convention on the Liability of Operators of Nuclear Ships; 1963 Vienna Convention on Civil Liability for Nuclear Damage; 1969 Convention on Civil Liability for Oil Pollution Damage, with 1984 Protocol.

15. See Art. 4( 1) of the Convention on Civil Liability for Nuclear Damage, Vienna, May 21,1963,21.L.M. 727(1963).

16. See, e.g., Handl , G. , State Liability for Accidental Transnational Environmental Damage by Private Persons , 74 AJIL 525 , 541 ( 1980 ).CrossRefGoogle Scholar

17. Quentin-Baxler wrote in his Preliminary Report that: “[i]t remains to notice that the contrasted descriptions ‘fault’ and ‘no-fault’, or ‘fault’ and ‘risk’, often employed as a shorthand method of distinguishing the regime of responsibility for wrongful acts and that of liability in respect of acts not prohibited by international law. The antinomy of ‘fault’ and ‘no-fault’ may be regarded merely as labels – and unsuitable ones for the Commission's purpose, because the great unruly concept of ‘fault’ has been to some extent sublimated in modem international law.”;, see II-l Y.B. Int'l L. Comm'n 215, Para. 15 (1980); But see also Akehurst , M. , International liability for injurious consequences arising out of acts not prohibited by international law , 16 Neth.Yb.I.L. 9 ( 1985 ), where he submits that this analysis is wrong.Google Scholar

18. Jiménez de Aréchaga , E. , International Responsibility, in M. Sorensen (ed.), Manual of Public Inter-national Law 569, 579 ( 1986 ).Google Scholar

19. A due care obligation is an obligation of a state to take all reasonable measures regarding the circumstances to prevent an event (an individual from committing a wrong) while it is shown that the state was capable of preventing it; see B. Smith, supra note 11, at 34–44; see infra Para. 2.2..

20. Arangio-Ruiz in his Second Report on State Responsibility, II Y.B. Int'l L. Comm'n Para. 163, U.N. Doc. A/CN.4/425/Add.l (1989).

21. II Y.B. Int'l L. Comm'n 169, Para. 39 (1973).