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Responsibility and Liability in General Public International Law and
in the Law of Outer Space
Sabine Lowe Institute of Air and Space Law McGill University, Montreal
July 1991
A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Law
@Sa1:>ine Lowe, 1991
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To Monifa and Nyako
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A\!knowledgements
The thesis on hand was prepared under the direction and supervision of Profs. W.
F. Foster and 1. A. Vlasic. 1 am grateful for their constructive criticism and the
patience they have had with me over the years.
1 am indebted to Ms. Ulrike Kühncl, who carefully made the fair copy of my
manuscript.
Thanks are due to the Deutscher Akademischer Austauschdienst, through which 1
received the scholarship that enabled me to stay in Canada, attend the classes, and
do the research for this thesis.
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Abstract
Just as the actions of individu aIs often cotmflict with the legally protected interests
of others, States may embark on activities which jeopardize the integrity of other
States' rights. The new relationship evolv,vlg between the risk-creators and the
potential victims is governed by social respomibilities as weIl as mIes of law.
ln the first part of the thesis, the concept of responsibility for internationally
wrongful acts is contrasted with that of liability '.Iine delicto. The examination seeks
to define the principles upon which each is bas~~d and to determine the respective
legal significance, scope and applicability. The al'lalysis of both concepts is guided
and influenced by the work of the International UlW Commission.
The second part focusses on the law of outer space. A scrutiny of the relevant
norms reveals which stage of development this fairly new subdivision of
internationallaw has reached with regard to responsibility and liability .
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Résumé
Dans la même mesure que les actes d'in:lividus peuvent porter atteinte aux justes
intérêts d'autrui, les Etats peuvent s'engager dans des activités qui mettent en péril
les droits d'autres Etats. Le nouveau rapport alors établi entre l'auteur et la
victime est gouverné par des obligations de type social ainsi que par des
obligations de droit.
Dans un premier temps, cette thèse met en relief la responsabilité pour faits
internationalement licites en la comparant à la re5ponsahilité pour faits
internationalement illicites. Nous tâcherons de soulever les principes qui sont à la
base de ces différents concepts ainsi que de déterminer leurs champs d'application.
Les travaux de la Commission de Dro!t International nous serviront de guide.
Le droit de l'éspace est au centre de la deuxième partie de cette étude. Un examen
détaillé des normes pertinentes qui régissent cette nouvelle branche du droit
international faira état du degré de développement quant à la responsabilité
internationale.
Table of Contents
1 Table of Contents
1 Introduction ...................................................................................................................... 1
2 International Responsibility sud Liability in General Public International Law ................................................................................ 4
2.1 The Classical Concept of State Responsibility ...................................................... 4
2.1.1 The Phenomenon of Responsibility in Public International uw ................ , .................... ,. .............................................................................. 4
2.1.2 The Concept as Established in Public Internationall.aw ............................ ., ............................................................... 5
2.1.2.1 The Intern~tionally WrongfuI Act ................................................... 6
2.1.2.2 Attribution ............................................................................................ 9
2.1.2.3 The Notion of Fault .......................................................................... 12
2.1.2.4 The Standard of Due Diligence ...................................................... 19
2.1.2.5 Circumstances Prec1uding Wrongfulness ...................................... 20
2.1.2.6 The Legal Consequences of an Internationally WrongfuI Ai:t ........................................................ 21
2.1.2.6.1 Basic Principles and Modes of Reparation .................. 21
2.1.2.6.2 Reparation ~o.r Damage Caused to Prlvate IndlvJdual..; ........................................................... 26
2.1.2.7 The Settlement of Disputes ............................................................. 28
2.1.3 The International Law Commission's Draft Codification .................. ~ ................................................................................. 31
2.1.3.1 Significance of the Project ............................................................... 31
2.1.3.2 The Commission's Approach to the Topie ............................................................................................ 33
2.1.3.3 The Origin of State Responsibility ................................................. 36
2.1.3.3.1 General Principles ............................................................ 36
2.1.3.3.2 The Act of the State under International Law ............................................................ 38
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Tab1e of Contents ij
2.1.3.3.3 The Breach of an International Obligation ......................................................................... 40
2.1.3.3.4 The Implication of a State in the Internationally Wrongful Act of Another State ................................................................... 43
2.1.3.3.5 Circumstances Prec1uding Wrongfulness ...................... 44
2.1.3.4 The Content, Forms and Degrees of State Re~ponsibility; The Implementation of the Norms and the Settlement of Disputes ........................................ 46
2.2 The Concept of Liability for Risk .......................................................................... 48
2.2.1 The Origin of the Concept ............................................................................ 48
2.2.2 Liability as an E~tablished Concept in Public International uw .......................................................................................... 50
2.2.2.1 Liability as a Conventional Regime ............................................... 50
2.2.2.2 Liability as a Rule of Customary International Law ............................................................................. 51
2.2.2.3 Liability as a General Principle of Law ......................................... 54
2.2.2.4 Liability as Described in Legal Doctrine ...................................... 55
2.2.2.5 Concluding Remark .......................................................................... 57
2.2.3 The International Law Commission's Project of Drafting a Codification ............................................................................ 57
2.2.3.1 The Commission's Aoproach to the Topic .................................... 57
2.2.3.2 International Liability for Injurious Consequences Arising out of Acts not ProhibJted by International Law .................................................... 59
2.2.3.2.1 General Provisions ........................................................... 59
2.2.3.2.2 Principles ........................................................................... 60
2.2.3.2.3 Notificati ~n, Information and Warning by the Affected State ...................................... 62
2.2.3.2.4 Concluding Remark ......................................................... 62
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Table of Contents üi
3 International Responsibility and Liability in the Law of Outer Space ................................................................................................................. 64
3.1 Genesis of the Norms ................................................................................... , .......... 64
3.1.1 Space l.aw at its Embryonic Stage .............................................................. 64
3.1.2 The Outer Space Treaty ................................................................................ 66
3.1.3 The Struggle towards the Adoption of a Draft Agreement on Liability and the Adoption of the Rescee Agreement ................................................................................. 68
3.1.4 The Liability Convention .............................................................................. 71
3.1.5 The Registration Convention ....................................................................... 74
3.1.6 The Moon Tr~aty ........................................................................................... 74
3.1.7 The Leve] of Development Presently Reaehed ......................................... 75
3.2 International Responsibility and Liability Pursuant to the Liability Convention .................................................................................... 78
3.2.1 The Seope of the Convention ....................................................................... 78
3.2.2 Liability ......................... 1 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 81
3.2.2.1 The Basis of Liability ........................................................................ 81
3.2.2.2 Exoneration from Liability .............................................................. 81
3.2.3 Responsibility ...... 1 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 83
3.2.3.1 The Basis of Responsibility ............................................................. 83
3.2.3.2 Exoneration from Responsibility .................................................... 84
3.2.4 Presentation of a Claim .................. ", ............................................................. 85
3.2.4.1 The Claimant ....................... 11 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 85
3.2.4.2 The Respondent ................................................................................ 87
3.2.4.3 Presentation through Diplomatie Channels .................................. 88
3.2.4.4 Time Limitation for the Pres.entation ............................................ 88
3.2.4.5 Exhaustion of Local Remedies ....................................................... 89
3.2.5 Compensation for Damage ................... , ............................................... , ........ 90
Table of Contents IV
1 3.2.5.1 The "AppHcable Law" ....................................................................... 91
3.2.5.2 The Measurement of Damages ....................................................... 94
3.2.5.3 Compensable Damage ..................................................................... 98
3.2.5.3.1 Direct Damage .................................................................. 98
3.2.5.3.1.1 Loss of Life, Personal Injury, and Other Impairment of Health ....................................................... 98
3.2.5.3.1.2 Loss of Property and Damage to Property ................................................... 99
3.2.5.3.2 Indirect, Consequential or Remote Damage ............. 101
3.2.5.3.:, Moral or Immaterial Damage ...................................... 103
3.2.5.4 The Payment of Compensation ..................................................... 104
3.2.6 The Settlement of Disputes ........................................................................ 104
3.2.6.1 The Establishment of a CIaims Commission .............................. 106
3.2.6.2 The Composition of the Claims Commission ............................. 106
3.2.6.3 The Cbims Commission's Procedure .......................................... 107
3.2.6.4 The Claims Commission's Competence ...................................... 107
4 Conclusion ..................................................................................................................... 109
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AbbrcviatÎons
Periodical Abbreviations
Am. J. Infl L.
Ann.Dig.
Ann. Fr. Dr. In1'l
Annuaire 101
ArchVR
Austr. L. J.
BGBI.
Brit. Y. B. InCl L.
Clunet
Germ. Y. B. Int'I L
Hum. Rts L. J.
l.eJ. Reports
ILM
1. Space L.
OZôffR
P.c.I.J. Reports
RdC
Rep.lnCI Arb. A.
Rev. Bel. Dr. Int'l
Rev. Egypt. Dr. Int'l
Rev. gén. dr. int'l
v
American Journal of International L::!v ..
Annual Digests and Reports of Public International Law Cases, H. Lauterpacht (ed.)
Annuaire Français du Droit International
Annuaire de l'Institut de Droit International
Archiv für Vôlkerrecht
Australian Law Journal
Bundesgesetzblatt
British Yearbook of International Law
Journa! du Droit International
German Yearbook of International Law
Human Rights Law Journal
Reports of the International Court of Justice
International Legal Materials
Journal of Space Law
Osterreichische Zeitschrift für ôffentliches Recht
Reports of the Permanent Court of International Justice
Recueil des Cours
Reports of International Arbitral AWr.\rds
Revue Belge du Droit International
Revue Egyptienne de Droit International
Revue général du droit international
Abbreviations
UNGAOR
UNTS
Vertragssammlung AA
Y.BJ.L.C.
Za6RV
ZLW
ZôR
'1
United Nations General Assembly Official Records
United Nations Treaty Series
Vertrage der BlIndesrepuhlik Deu' schland, Auswartiges Amt (ed.)
Yearbook of the International Law Commbsion
Zeitschrift für auslündisches üffentliches Recht und V6lkerrecht
Zeitschrift fur Luft- und Weltraurnrecht
Zeitschrift für bffentlichcs Recht
Ail other abbreviations used in this thesis are either general usage or can be round in A Uniform System of Citation; Forms of Citation and Ahhreviation, HarJard Law Review Association (ed.).
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International Responsibility and Liability
1 Introduction
Thirty-six years ago, on July 29, 1955, the White House announced its intention of
launching a football-sized vehicle in a rocket and putting it into a path that would make
it circle the Earth in a period of rather less than two hours. The launching of what was
intended to be the first man-made Earth satellite was scheduled for sorne time between
rnid-1957 and the end of 1958. Le. during the so-called International Geophysical Year1•
In October 1957, the Soviet Union orbited Sputnik 1; in January 1958, the United States
fuHowed with Explorer 1.
The first missions beyond the Earth's atrnosphere marked the beginning of the
developrnent of a new field of public internationallaw, the law of outer space2• Between
1967 and 1979, five international agreements covering legal aspects of top priority were
concluded: The Outer Space Treatyl, the Rescue Agreement4• the Liability ConventionS,
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See Moore, Patrick, The Next Fifly Years in Space (New York: Taplinger Publishing, 1976) at 20. Compare Rauchhaupt, Friedrich Wilhelm von, "A Short Report on the Law of Outer Space", published paper presenlcd al the Scventh CoUoquium on the Law of Outer Space, September 9/10, 1%4, Warsaw, Poland; Haley, Andrew G. and Mortimer D. Schwartz, eds, ProceedinKS ofthe Seventh ColloQuium on the Law or Outer Space (Norman, Oklahoma: University of Oklahoma Research Institute, 19(5) 30)-314 at 301: ·Spaec lawappcars as a braneh of law sinee the foundation of tbe Intcrnational Aslronautical Federation ... or lat est since 1957/58 with the success of the rtrst flight into outcr space. Il is still very young, eveo in its ehildhood, and scarcely enjoys complete indepeodence." Treatyon Principlcs GQvernjn~ the Activities of States in the Exploration and Use of Outer Space Includini the Moon and Other Celestial Bodies, adopted in UNGA-re!.. 2222 (XXI) of December 19, 1966, (1%7) 610 UNTS 206-301. The Treaty was opened for signature on January 27. 1967, and signed by 64 States. Il entcrcd into force on Odober 10, 1967. As of December 31, 1990, it was in force for 87 States, see BGBI. Tei12, Fundstclleoverzeichnis B. A",eemcnt on the Rescue of AstTQnauts. the Return of Astronauts and the Return of Objeels Launched into Outer S[!ac~, adoPlcd in UNGA-res. 2345 (XXII) of December 19, 1967~ text in (1969) 672 UNTS 119-189 and (1968) 19 UST 7570-7631. The Agreement was opcned for signature at Washington, London and Moseow on April 22, 1968, and signed by 81 States.lt entered into force on December 3, 1968. As of Dcccmber 31, 1990, it was in force (or 80 States, see BGBI. Teil 2, Fundstcllenver7..eichnis B. Convention on International Liahilily for Damage Causcd by Space Objects, adopted in UNGA-res. 2n7 (XXVI) of February 8, 1972, UNGAOR, Tweoty-Sixth Session, Suppl. No. 29, Agenda Item 33. The Convention was opened for signature on March 29, 1972, and signed by 69 States. Il entered into force on Scptembcr l, 1972. As of December 31, 1990, il was in force for 75 States, see BGBI Teil 2, Fundstellenverzeichnis B.
International Responsibility and Liability
the Registration Convention6, and the Moon Treaty7.
Today, artificial satellites are used for a variety of civilian and military purposes8• The
space shuttle is about to pass the stage of experimentation9; space stations and spacc
laboratories are no longer mere science fiction. As space technology advances, more
extensive activities in outer space are rendered feasible 1o• The number and the size of
6
7
8
9
10
Convention on Re&istration of Objects Launched into Outcr Space, adopted in UNGA-res. 3235 (XXIX) of November 12, 1974, text in (1976/1977) 28 UST 695-790. The Convention was opencd for signature al New York on January 14, 1975, and signed by 160 States. Il entercd ioto force on Septembcr 15, 1976. As of December 31, 1989, it was in force fm 31 States. AlUeement Govçrninl: the Activities of States on the Moon and Other Celestial Bodies, adopted in UNGA-res. 3468 of Decembcr 5, 1979, UNGAOR, Thirty-Fourth Session, Suppl. No. 46; teX! also in (1979) 181LM 1434-1441. The Agreement was opened for signature on December 18,1979, and signed by 11 States. It entered into force on July 11, 1984. As of Decembcr 31, 1989, il was in force for 7 States, neither the U.SA. nor the U.S.S.R. had ratified the Agreement. There are domestic communications satellites, mobile communications satellîles including marilime and aeronautical satellites, broadcasting satellites, satellites used for spa cc research, satellites involved in the observation of the Earth's surface for ecological, agricultural, industrial or other reasons, and satellites performing the task of weather observation or weather modification. Mililary uses include the observation of military objects for the verification of arms control agreements. In the Strategie Ocfcn!.c Initiative Programme, satellites are to destroy enemy weapons. The fU'st shuttle was launched on April 12, 1981. 40 shullies have been launched since then. While the shuttle programme undoubtcdly slarted a new era, the initial enthusiasm has vanishcd. Ten years after the firsllaunch, if has become obvious lhat unmanned rockets arc a chcapcr way of transporting satellites and that extraterreslic research done by robots is more effective and less costly. See Rademacher, Horst, "Ein tcures, aber nùtzliches Spielzeug", Frankfurter AlIgemeine Zcitung, April 12, 1991, al 16. On the issue of production and construction and related problems sec Grey, Jerry, ed., ~ Manufacturin~ Facilities (Space Colonies), Proceedings of the Princeton/ AlAA/NASA Conference May 7-9, 1975 (Including the Proceedings of the May 1914 Princeton Conference on Spacc ColonÏufion), (No~w York: American Institute of Aeronautics and Astronautics, 19n) and Grey, Jerry, cd., Svace Manufacturini Facilities JI, Proccedings of the Third Princeton/ AIAA Conference, May 9-12, 1977 (New York: American Institute of Aeronautics and ASlronautics, 19TI); on the perspectives with regard to the use of permanent facilitics in space see Smith, Dclberl D., Space Stations. International Law and Policy (Boulder, Colorado: Westview Press, 1919) at 1-61 and Billingham, John, William Gilbreath and Brian O'Leary, eds, Space Resources and Space Settl~, Technical Papers derived from the 1917 Summer Study at NASA Ames Research Center, Moffett Field, California, NASA SP-428 (Washington, D.C.: Government Printing Office, 1979).
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International ResPQnsjbility and Liability
space objecLIi increases, and so does the risk of accidents1).
Space objects, masterpieces of intricate micro-technology, are manufactured and
handled with utmost care, their missions are plarmed in detail and carried out under
strict supervision. However, ail these precautions cannot guarantee the venture's
success. Whenever and wherever a "human factor" is involved, the potential failure of a
human being cannot be eliminated. It is equally impossible to take into account
unpredictable natural forces and circumstances, which may affect a space object's
journey or position. Thus, aState that chooses to engage in space activities cannot avoid
creating risks for others.
However improbable the occurrence of an accident may be or seem, the integrity of
foreign people, property and interests is put at stake.
11 As of January 1986, the total number of objects that had been placed into space was 16,542. 11,406 of them had decayed back into the Earth's atmosphere. 5,936 objects were still being tracked by the North American Defense Command (NORAD); see United S:ates Air Force, NORAD Space Surveillance Center Catalog (1986). On the risk of accidents, espccially sucb caused by space debris, see Viu, Elmar, "Aur Kollisionskurs im Ali- Die Gerahren der Weltraumtrümmer" (1986) 35 ZLW 31-42 at 38, "Die Gefahren der Wehraum-Trummer 1:] Neue Entwicklungen und Erkenntnisse" (1987) 36 'ZLW 249-260; Heard, Kevin D., ·Space Debris and Liability: An Overview" (1987) 17 Cum.L.Rev. 167-203 at 202; Broad, William J., ·Orbiting Junk Threatens Space Missions", The New York Times, August 4, 1987, Cl and C3 al C3.
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International Responsibility and Liability Paac4
2 International Responsibility and Liability in General Public International Law
2.1 The Classical Concept of State Responsibility
2.1.1 The Phenomenon or Responsibility in International Law
"Les règles de r:sponsabilité sont en quelque sorte les règles-clefs de tout ordre
juridique. On peut affirmer que la valeur pratique d'un ordre juridique determiné
dépend de l'efficacité et de l'étendue des règles sur la responsabilité."12
Being responsible means to think about the ronsequences of one's conduct on others
and to act accordingly. The need for such an altruistic apvroach derives from the co
existence of individuals or groups amongst which there is equality. Any member of a
society or community has to limit its egoistic st rive for the realization of ilS own interests
in order to allow other members to achieve their goals13•
States, too, have to accept responsibility for the consequences of their activities on other
members of the international community, which is characterized by the principle of the
sovereign equality of States14• In inœrnational law, as in any domestic legal system, the
invasion of the legal interest of one subject of the law by another legal person creates
12
13
14
From a speech made by Jules Basdevant, quoted from Furgler, Kurt, Grundvrohlcme der vôlkerrechtlichen Verantwortlichkcil der Slaale" unler hcso"dcrer Bcrücksichtil:-unl:- der Haül:-er Kodifikationskonfere"z sowie der Praxis der Vercini"tcn Staatcn und der Schwciz (Dissertation, Winterthur: Konkordia, 1948) at 3. For an elhical and philosophical treatise on the phenomcnon of responsibilily sec Goodin, Robert E., Protectinl: the Vulnerable - A Reanalysis of Our Social Responsibilities (Chicago: The University of Chicago Press, 1985), who advocales a victim-oriented concept of wlnerability. See also Furglcl' Kurt, supra note 12, at 3. See art. 2 para. 1 of the Charter of the United Nations, signed at the United Nations Conference on International Organization. San Francisco, JUDe 26,1945. Il became effective on Octobcr 24,1945, (1945) UNCIO Docs XV, 335. Sec also Furglcr, Kurt, supra note 12, at 4 and Brierly, J. L., -"l'he Shortcomings oflnternational Law" (1924) 5 Bril. Y. B. InCl L. 9-16 al 12-13.
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International Rcsponsibility and Liability
the responsibility of the "intruder", The new relationship between the latter and the
victim State is governed by the law of international responsibility15,
2.1.2 The Concept as Established in Public International Law
The concept of State responsibility can be traced back to Grotius16 and Vattel17,
However, the discussion on the questions conceming this area of law is still highly
controversial18, Part of the reason for the on-going debates is the inconsistent and
15
16
17
18
The implicd definilion of "international responsibility" can be considered as generally accepted. See Cavaglieri, Arrigo, "Règlcs générales du droit de la paix" (19291) 26 RdC 315·583 at 539; Dahm, Georg, Volkerrecht, vol. III (Stuttgart: Kohlhammer, 1961); Goldschmidl, Jürgen, Pas Problem einer vblkcrrcchtlichen Gerahrdungshaflun" unter Berücksichtigunglles Atom- und Weltraumrechles (Kain: Carl Heymanns, 1978) at 12; Starke, J. G., Introduction to International Law, 9th cd. (London: Butterworths, 1984) al 283; Delbez, Louis, "La responsabilité internationale pour crimes commis sur le territoire d'un Etat et dirigés contre la sure té d'un Etat étranger" (1930) 37 Rev. gén. dr. int'I461-4'75 al 464-465; Ago, Roberto, "1 e délit international" (1939 Il) 68 RdC 416-554 at 441. ln this thesis the terms "responsibility" and "liability" will be us~d according to the dermitions chosen by the International Law Commmission (ILC) - "responsibility" as th,,: consequence of a breach or an interi'lational obligation (a wrongful act), ~liability" for injurious cor.sequences arising out of acts not prohibilcd by internationallaw, i. e. ror Iiability sine delielo, see Ago, Roberto, (1973 1) Y.B.I.L.C. at 13 para. 13; Ushakov, Nikolai, (19831) Y.B.I.L.C. al 14 paras 4 to 7: Qllentin.Baxter, Robert Q., (1980 1) Y.B.I.L.C. al 8:! para. 14; Thiam, Doudou, (1980 1) Y.B.I.L.C. al 86 para. 3; Oucntin·Baxter, Robert O., Preliminary Report, UN Dacs A/CN.4/344 and Add. 1 and 2, lext in (1980 Il part 1) Y.B.I.L.C. at 247-266. The lerm "responsibiliIY" will he used in ,he above-mentioned sense as weU as in the broader sense of "social re!>ponsibility", which is Dot the consequence of an internationally wrongful act, but ralher the consequence of endangering the interests of others or of Clealing risks 10 people or goods. On the dil>tinction betweell "responsibility" and "Iiability" see aIso Boyle, Alan E., ·State Responsibility and International Liability ror Injurious Consequences of Acts Dot Prohibited by International Law: A Nece~sary Distinction?" (1990) 391nt'I & Comp. L. O. 1-26 at 8-10; Zemanclt, Karl, ·Causes and Forms of International Liability" Cheng, Bin and E. D. Brown, cds, ContemporaQ' Problem!> of International Law; Essays in honour or GeorK Sehwar7enber~er on his eiKhtieth birthday (London: Stevens & Sons, (1988) 319-332 at319. See Grotius, Hugo, De Jure Belli ac Pacis. Lib. Il (London: John W. Parker, 1853), Cap. XVII, § 2 al 188-199 and 341-346 respectively. See Vattel, Emerich de, Le droit des Kens. ou Principes de la loi naturelles, vol. II (Paris: Janet et Cotelle, 1820), Chapitre l, § 18 and Chapitre VI, §§ 71-78, al 141·142 and 161-163 respectively. For an extensive Rnd fairly recenl bibliography see ·State responsibility for internationally wrongful acls (part 1), Principal works dted in the reports of Mr. Ago·, UN Doc. A/eN. 4/318/Add. 8 in (1980 Il part 1) Y.B.l.l.C. 71-86.
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International ResnonsihiIity and Liahility PUiC 6
confusing us&ge of the terminologyl9. In order to avoid a further contribution to this
problem, the terminology used in this study is basically that of the International Law
Commission20•
2.1.2.1 The InternationaJly Wrongful Act
In spite of ail the disagreements with regard to the details of the concept, there is a
common understanding among international lawyers on the basic definition of State
responsibility as the consequence of an internationally wrongful act committed by or
attributable to a subject of internationallaw21•
Capability of commiting or being responsible for an international delict and subjectivity
under internationallaw being intertwined, it is the responsibility of States as the classical
subjects of international law that has traditionally been the focal point of the discussion
concerning international responsibility. Nowadays, governmental international
organizations may also qualify as subjects of international law and thus be held
accountable for violations of internationallaw22. With regard to the status of individuals,
concepts approaching something similar to a limited subjectivity have been proposed2J•
However, but a few international agreements on the protection of human rights
recognize the right of individuals to file petitions and communications in proceedings
19
20 21
22
23
Intemalionallawyers may have serious communication problcms for the simple reason that they speak different l.mguages and come from differenl municipallegaJ systems. See supra note 15. See supra note 15. ':he occunence of damage is not a constituent clement; see Reuter, Pau~ "Le dommage comme condition de la responsabilité internationale", Esludios de derccho internacional bomenruc al Professor Miaja de la Muela, vol. H (Madrid: Ed. Technos, 1979) at 837-846. See a1so Tanzi, Attila, "Is Damage a Distinct Condition for the Existence of an haternationally Wrongful Act?, Spinedo, Marina and Bruno Sim ma, cds, United Nations Codification of Statç ResponsibililY (New York: Ocean a, 1987) 1-33, especiaUy at 2. On the subject of responsibility of international organÏ1.ations for international dclicts see Munch, Ingo von, Das vQlkerrechtliche Delikt in IkLmodernçn Entwicklun, der VQlkçr~meinsçharl (Frankfurt a. M.: Kepplcr, 1963) at 250-278. On the "passive" responsibility of international organizations see Garcia Amador, F.V., ·State Responsibility, Sorne New Problems" (195811) 94 RdC 369-491 al 422-425. See Quoc Dinh, Nguyen, Patrick Dailler and Allain PeUet, DrQit international Public, 3rd cd. (Paris: Librairie Génerale de Droit et de Jurisprudence, 1981) at 513-575.
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International Respoosibility and Liability Paae7
before international tribunals, invoking norms of international law24. Responsibility of
individu aIs for acts contrary to international law is a very exceptional phenomenon,
limited to particular "crimes under international law". Offences to he c1assified as such
are genocide2S, war crimes, and crimes against humanity as defined and prosecuted
under the Nuremberg Charte rU, as weil as the acts of the hostis humani &eneris, the
pirate27• Internationallaw neither recognizes the responsibility of individuals for human
2S
26
27
Sec art.2 of the Qptional Protocol to the International Cc,;enant on Civil and Politiçal Riahts (1976) 999 UNTS 302-346. 1 he Prolocol enlered ioto force on March 23. As of January 1, 1987, it had been ratified by 38 States - see Marie, Jean-Bernard, "Inlernationallnstruments Relatiog to Human Rights, Classification and Chart Showing Ratifications as of 1 January 1987" (1987) 8 Hum. Rts L. J. 217-244 at 226. Sec also art. 25 of the European Convention for the Protection of Human Riihts and ~mental Freedoms of November 4, 1950, Coundl of Europe, European Treaty Series, No. S, also reproduced in Council of Europe, Directorate of Human Rights, ed., Hl!!!Ian RiiWts in InternJilimru Law, Basic Texts (Strasbourg: Coundl of Europe, Publications Section, 1985) 101-139; art. 55 ,'lf the Arrican Charter on Human and Peoples' Riihts, signed al Nairobi in June 1981, OAU Doc. CAB/LEG/67/3/Rev.5, Reproduced in Council of Europe, Directorale of Human Rights, ed., ibid., at '1IJ7-225. On the right of petition see Vasak, Karel, "Toward a Specific Human Rights Law", Vasak, Karel, ed., The International Dimensions of Human Ri~hts, voJ.2 (Paris: UNESCO, 1982) 671-679 at 676-6n. See art. 1 of the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, (19 .. ~) 78 UNTS 277-313 at 280. The Convention entered into force on January 12, 1951. As of January 1, 19~ 1,96 States had ratificd il. Sec M.trie, Jean-Bernard, supra note 24, at 228. Confirmed by art. 7 of the European Convention for the Protection of Human RiWts and Fundamental Freedoms, supra note 24; art. 15 of the International Covenant on Civil and Political Ri~hts. adopted on December 16, 1966, in UNGA-res. 2200 (XXI), UNGAOR, Twenty-First Session, Suppl. No. 16, Agenda Item 52; sec. 11 (g) of the Canadian Charter of Ri2hts and Freedoms, contained in Part 1 of the Constitution Act, 1982, which was enacted as Schedule B to the Canada Act, 1982, passed by British Parliament (U.K., Elizabeth Il., 1982, c.ll); as weU as municipal court decisioDS, see Attorney-General of the GQvernment of Israel v. Adolf Eichmal), judgment of the District Court of Jerusalcm of Dcccmbcr ]2, 1961, and judgmcnl of the Supreme Court of Israel of May 29,1962, (1%8) 36 Int'I L. Rep. 5-276 and 2n-342 respectively, Case a~ainst Klaus Barbie, decision of October 6, 1983, Cour de Cassation. Chambre Criminelle, (1983) 110 Clunet 779-786; decision of January 26,1984, Cour de Cassation, Chambre Criminelle, (1984) 111 Clunet 308-315; decisioD of December 20, 1985, Cour de Cassation, Chambre Criminelle, (1986) 113 Clunet 127-143. See Quoc Dinh, Nguyen, Patrick Dailler and Allain PeUet, supra note 23, at 580-584.
1
1
International Responsibility and Liability PucS
rights violations in general, nor does it assume the accountability of individuals in any
other field of public internationallaw2B.
An internationally wrongful act, or an international delict, is the violation of a norm of
internationallaw - be it a provision in an international agreement or a mIe of customary
international law - by a subject of international law29. The infringement may take the
form of an active commission or of an omission, it may be an flct not extending in time
or one having a mntinuing characte~.
Theoretieally, there are two basic criteria that may render an aet or omission wrongful:
- The law prohibits a specifie kind of conduet. The adoption of sueh a eonduet
constitutes a violation of the law.
- Certain persons, rights or goods are legally protected and may not be interfered with.
Any act affecting them is iIIicit unless circumstances precluding wrongflllne~s are
invoked and proven3l•
While in domestic legal systems clearly defined objects of legal protection have evolved
from the social developments and historical processe:; that have taken place32, the
international legal order lacks their existence. Public international law is characterized
by the interdependence of States and the reciprocity of obligations rather than the
28
29
30
31
32
On the responsibility of individual:,. undcr intcroationallaw sec Eag1cton, Clyde, ftMcasure of Damages in International Law" (1929-1930) 39 Yale LJ. 52-75 at 54; Tomuscbat, Christian, "GrundpOichten des Individuums nach Vôlkerrecht" (1983) 21 ArchVR 289-315; Hangartoer, Yvo, 'Volkerrechtlicbe Grundpflichten Privater", Hangartner, Yvo and S. Trechsel, eds, VQlkcrrecht im Dienstc des Menschen, Festschrift fur Hans Haug (Bern: Haupt, 1986) 109-122. The question '.'·hether individuals can he subjects of intcrnationallaw and the problem of the international responsibility of individuals were already considered during the preparations for the 1927 Lausanne session of the Institut de Droit International, see Bourquin, M., "Observations" (19271) 33 Annuaire IDI 501-509 clt 509. On this sec also Eustatruades, Constantin Th., "Les sujets du droit international ct la responsabilité internationale -NouveUes Tendances· (1953 III) 84 RdC 397-633 at 410-415. Sec Goldschmidt, Jurgen, supra note 15, al 13. See arts 3 (a), 24 and 25 of the ILC's "Draft Articles on State Responsibility", as adopted by tbe Commission on lirsl reading on July 25,1980, (1980 Il part 2) Y.B.I.L.C. 30-34. See also Ago, Roberto, "Le délit international", supra note 15, al 447 and 499-531. Sec Deutsch, Erwin, Haftun&sreçhl, vol. 1 (Koln: C. Heymanns, 1976) al 199 witb furtber references. Sec Goldschmidt, Jilrgen, supra note 15, at 95-104 and Ago, Roberto, "Le délit international", supra 15, at 500.
i
•
t
International Rcsponsibility and Liahility Pue 9
protection of particular objects33• Thus, the adoption of a course of action inconsistent
with an obligation is the typical case of an internationally wrongful act; only a minority
of norms provides for State responsibility as the consequence of the interference with an
object of legal protection34•
2.1.2.2 Attribution
The law of international responsibility has developed in analogy to provisions and
doctrins concerning individual responsibility in domestic civil and criminallaw. Subjects
of international law do, however, have specifie characteristics that differ considerably
from those typical of human beings as the classical subjects of civil and cri minaI
responsibility on the national piane. This has led to a variety of problems.
Only an individual can in practice act eontrary to an obligation or fail to act where the
law requires il. Therefore, in international relations, a link between the individual and
the subject of international law has to be established, allowing the aet or omission to be
attributed to the latter. Public international law reeognizes such a link where the act or
omission in question is the conduet of a State organ having that status under the
domestic law of the State eoncerned, provided the respective organ aets in that eapacity
33 On the primacy of ohligations of conduct in internationallaw see Kelsen, Hans, "The Draft Declaration 00 Rights and Duties of States - Critica1 Remarks" (1950) Am. 1. lot'I L. 259-276 at 265.
34 See Goldschmidt, Jürgen, supra note 15, al 95-104.
r 1
InternatiQnal Responsibility and Liability PA&e 10
in the case in question3S• Whether the respective organ acts within its competences and
in accordance with internaI directives and regulations, or whether its conduet is llltr.a
~ does not affect the imputability36.
3S
J6
See the arbitral award Affaire des réclamatiQns des sujets italiens résidant au PerQu, No. 2 and No. 4 of September 30,1901, (1966) XV Rep. InCl Arb. A. 399-453 at 401: •... un principe de droit international universellement reconnu veut que l'Etat SQit responsable des violatiQns du droit des gens commises par ses asents ..... The Qrgan May belong to the legislature, the executive or the judiciary. See Dahm, Georg, Volkerrecht, vol. I(Stuttgart: Kohlharnmer, 1958) at 183; Oppenheim-Lauterpacht, International Law, vol. l,8th cd. (London: l.ongrnans, Green and Co.,1955) at 341; Goldschmidt, supra note 15, al 13; Munch, Ingo von, supra 22, al 171-172; Dumas, Jacques, "la responsabilité des Etats à raisQn des crimes et délits cQmmis !lur leur terriîoire au préjudice d'étrangers" (1931 Il) 36 RdC 182-261 al 247-253; BQuvé, C. L., "The National Boycott as an International Delinquency" (1934) 28 Am. J. Int'I L. 19-42 at 37; Cavaglieri, Arrigo, supra note 15, at 546; Ago, Roberto, "Le délit international", supra note 15, at 459-476; Amerasinghe, Chittharanjan F., ·Imputability in the Law of State Responsibility for Injuries to Aliens (1966) XXII Rév.Egypt. dr.int'I 91-130; StarIce, J. G., supra note 15, at 294; Verdross, Alfred and Bruno Simma, Universelles Volkerrecht - Theorie und Praxis, 3rd cd. (Berlin: DuncIcer und Humblot, 1984) at 855. See also art. 1 of tbe draft on State responsibility prepared by the Institut de Droit International at its 1927 Lausanne session, (1927 1) 33 Annuaire IDI 557-562 at 557. In the ILC's drafl on State respon!libility, supra note JO, this principlc is laid down in art. 5: "For tbe purposes of the present articles, conduct of any State organ having that status undcr the internallaw of that S~ate shall he considered as an act of the State conccrned under internationallaw, prQviding that Qrgan was acting in that capacity in the case in questionM
• On the topcis of attribution and the responsibility of States for the conduct of their Qrgdns sec Ouéneudec, Jean-Pierre, Id responsabilité internationale de l'Elat pour les fautes personnelles de ses al:elllS, (Paris: R. Pichon et R. Durand-Auzias, 1966). See the arbitral award in the case Thomas H. YQumans (U.SA.) v, United MClCican States. Novernbcr 23,1926, (1952) IV Rep.lnl'I Arb. A. 110-117 at 116: •... we do not considcr that the participatiQn of tbe soldiers in the murder at Angangueo cao be regarded as acts of soldiers committed in thdr privatc capacily wben il is clear that al tbe time of the wmmissiQn of thcM! aCls the men were on dut Y under the imrnediate supervision and in the presence of a commanding officer. Soldiers innicting personal injuries or cornmiuing wanton destruction Qr looling always acl in disobcdiencc of sorne rules laid dQwn by superior aUlhority. There could he no liability whatever for such misdeeds if the view were taken tbat any aets committed hy soldiers in cOI.travention of instructions must always be considered as personal aets." Sec also the arbitral award in the case ,[çan-Balltiste Caire. Estalc Qf (France) v, United Mexiçan States, June 7, 1929, (1952) V Rep. In!'1 Arb. A. 516-534 at 531: .... il ne reste aucun doute que les deux officiers .. , ont engagé la responsabilité de l'Elat, wmme s'étant couverts de leur qualité d'Qfficiers et servis des moyens mis, li rJ! titre, à leur disposition". Sec also Freernan, Alwyn V., ·Responsibility of States for Unlawful Aets of Thcir Armed Forces· (1955 II) 88 RdC 267-416 at 290; Meron, Theodor, "International Responsibility of SIates (Qr UnauthQrized Acts of Their Officiais· (1957) 33 Brit. Y. B. Int'I L. 85-114 at93-112; Accioly, Hildebrando, ·Principes généraux de la responsabililé internationale d'après la doctrine ellajurisprudel1cc· (19591) 96 RdC 353-431 at360-363. See also art. 10 of lhe ILe draft articles on Stale responsibilily, supra note 30, at 31.
, International Rcsponsibility and Liability Puee 11
ln general, States cannot be held responsible for the acts of private individuals37•
However, a Hnk between a deHct committed by a l'riva te person and aState may be
established if State organs do not exercise the necessary due diligence in the prevention
of the occurrence of such a wrongfu1 act or in the punishment of the responsible
37 See the I.CJ.'s judgment of May 24, 1980, in the Case Concerning United States Diplomatie and Consular Staff in Tehran !United States of Amerira v. Iran), (1980) I.CJ. Reports 3-65 at 28-33; Mossner, Jorg Manfred, "Privatpersonen aIs Verursacher volkerrecbtlicber Delikte. Bemerkungen zu Art. 11 des Entwurfs der ILC lur Staatenverantwortlichkeil", (1981) 24 Germ. Y. B. Int" L. 63-91; Dunn, Fredcrick S., The Protection of Nationals - A Studf in the Application of International L~, (Baltimore: John Hopkins Press, 1932) at136; Verdross, Alfred and Isruno Simma, supra note 35, at 863. Privale acts of State organs, even if eommitted on duty, do not incur the responsibility of tbe State either, unless powers or measures conneeted witb the official char acter of their position are made use of. Inlcresting in this contcxt is the arbitral award in the case Francisco Mallén (United Mexican States) v. United States of America, April 27, 1927, (1952) IV Rep. Int'I Arb. A. 173-190 at 177: the fact tbat Franco, an American policeman, had iIIegally takeD Mallén to prison, was attributed to tbe State on the grounds that "Franco could not have takcn Mallén 10 jail if he had not been arting as a police officer". See also the arbitral award in the case Jean-Baptiste Caire. Estate of (France) v. United Mexican States, supra note 36, al 529-530. Sec al~o Evalt, Herbert V., "The International Responsibiüty of States in the Case of Riots or Mob VioleDce, A Study of the Kalgoorlie Riots Case, 1934" (1935) 9 (Suppl.) Auslr. L. J. 9-28 al 13; Amerasinghe, Chiuharanjan F., "Imputabilily in the Law of Stale Responsibility for Injuries to Aliens", supra note 35, at 93, and De!bez, Louis, supra note 15, at 470. In the opinion of Wolf and Hofmann, the adequacy of the priDciple in present-day international law is questionable; sec Wolf, Joachim, "Zurechnungsfragen bei Handlungen von Privatpersoneo" (1985) 45 ZaôRV 232-264; Hofmann, Rainer, "Refugee-Generating Policies and lhe Law ofState Responsibility" (1985) 45 ZaoRV 694-713 at 702.
International Responsibility and Liahility P+\&e 12
individuals38• Subsequent approval of delicts or crimes commiued by individuals may
also incur a State's international responsibility39.
Also, if aState is under an objective obligation to prevent the occurrence of a specifie
event or to achi~ve a particular resuIt, it is responsible for any situation not in
conformity with the obligation, irrespective of its being oecasioned by an act or omission
of a priva te individual or by the failure of a State organ.
2.1.2.3 The Notion of Fault
A c1assical and vociferous debate among international lawyers concems the role and the
notion of fauIt in the concept of State responsibility40.
38
39
40
or fundamental importance in this conteXl i!. Max Hubcr's arbitral award in Affaire des biens britanniques au Maroc espa&"ol, May 1, 1925, (1949) Il Ref.'. Inl'I Arb. A. 615-742 al 642 and 645: .... l'Etat n'est pas responsable .. de ce que les aulorilé!. fonl ou ne fonl pas, pour parer, dans la mesure possible, aux sui les ... (L)a re!.pon<;ahilité de l'Elat peut être engagée ... non seulement par un manque de vigilance dans la prévention des actes domm,lgeables, mais au<;si par un manque de diligence dan~ Id poursuite pénale des fauteurs, ainsi que dans l'application des sanclion<; civiles voulues: See also the I.CJ.'s judgrnent of May 24, 1980, in the çill'.ç Conccrnini: United Slitlcs Diplomatiç.Jml!Consular StafT in Tehran (Uniled Slate~ of America v IrarJ, supra noIe 37, at 31-33. For more dcci~ions and Stale practice sec the ILC's commentary on art. 11 of the draft article~ on Slale re<;pomibl!lty (1975 Il) Y.B.I.L.C. 70-83 at 74-80. See a150 Akehurst, Michael, 'State Resp()n~ibihly for the Wrongfu) Act!. of Rebels - An Aspect of the Soulhcrn Rhodcsian Problcm· (1968/69) 43 Bri!. Y. B. Inl'I L. 49-70 at 50-56 and 61, and Brierly, J. L., "The Theory of Implied State Complicity in InternatIOnal Claims· (1928) 9 Brit. Y. B. Int') L. 42-49. See the I.CJ.'s judgmenl of May 24, 1980, in the Case Conccrnin.: United S!atç~ Div1(Jmdtiç and Consular Staff in Tehran (United States of America v. Ir:Jn), supra JaJte 37, al 33-37, espccially at 35: "The approval givcn 10 Ihese facts by the Ayatollah Khomeini and other organs of Ihe Iranian Stale, and the decisiün to perpetuale them, translaled continuing occupation of the Emba~y and detention of the hoslagefi into acts of the Stale The militants, aUlhors of the inva~i()n and jai!ers of the hostages, had now become agent'i of the Iranian Stale for whose acts Ihe State ilM:1f was internationally responsible." See a1so Akehurst, Michael, supra note 38, at 61. See, fOf example, Cavaglieri, Arrigo, supra note 15, at 550-552; Cohn, MG, ·La théorie de la responsabilité" (1939 II) 68 RdC 209-325, at 240-256; Borchard, Edwin M., "Thcoretical Aspects of the International Pesponsibility of States· (1929) ] ZaoRV 223-250 at 224-227; Dumas, Jacques, supra Dote 35, at 211-217. See also Verdross, Alfred (1957 1) Y.B.! L.C. at 154, para. 39 and Zcmanck, Karl, "Causes and Forms of International Liability", supra note 15, al 327-328.
l
International Rcsponsibilily and Liability
"Where there is no fauIt, no omission of duty, there can be nothing whereupon ta
support a charge of responsibility or justify a complaint. .... 1
For centuries, this was a valid axiom of public internationallaw42•
Going back to the very beginnings of international law, Grotius' idea of the concept of
State responsibility was that an illicit act committed by a citizen would entail the
responsibility of the head of State, if he had either al10wed it to happen aIthough he had
had knowledge of it and in spite of having had the possibility to prevent it, or if he had
subsequently showed approval43• With such a conception of international delicts, State
responsibility and the role of fault, it was not necessary to differentiatc between
obligations requiring the adoption of a particular course of conduct and obligations
requiring the achievement of a specifie resuIt or the prevention of a given event. No
delict could incur the responsibility of the State, if there had not been any negligence,
intent or subsequent approval by the head of State.
Grotius' approach44, which seems ta fictitiously assign human characteristics to aState,
may have been founded on a conception of the institution State very different from the
one we have today. In the era of absolutism, the head of State was more or less
41
42
43
Sec the arbitral award of 1798 of the British/ American Claims Commission in the Jamaica Case, Moore, John Basselt, International Adjudications - Ancient and Modern Hic;tO!:y and Document~ ~thcr wilh Medialorial Reports. Adyisory Opinions. and the Decisions of Domeslic Commissions on International CI4im~, Modern Series IV (New York: Oxford University Press, 1931) 489-518 al 499. See also Ago, Roberto, "Le délit international", supra Dote 15, al 477-478. ln 1625, Grotius Mote: w ... Qui in cutpa non est. natur~ ad nihil tencturW • see Grotius, Hugo, supra note 16, Cap. XVII, §21, at 199. As to the significanc.e and development of the principle sec Ago, Roberto, WFourth Report on State Responsibility", UN Doc. A/CN. 4/264 and Add.l of June 30, 1972, and April 9, 1973, respcctive1y, in (197211) Y.B.I.L.C. 71-160 at 120-124 with many references. See also Brownlie, lan, Principles of Puhlic International Law, 3rd ed. (Oxford University Press, 1979) al 431, and Garcia Amador, f. V., supra note 22, al 382-392. Grotius, Hugo, supra note 16, Cap XVII, §20 and Cap. XXI, §2, at 196-198 and 341-346 respcctively. On Grotius' concept see Cohn, MG., supra note 40, at 241-246. Internationallawyers supported it for centuries. Sec Padilla-Nervo, Luis, (19571) Y.B.I.L.c' 155-156 al 156, para. 55; Strisower, M. L .. "Responsabilité internationale des Etats à raison des dommages causés sur leur territoire à la personne ou aux biens des étrangers·, Rapport pour l'Institut de Droit International, Travaux préparatoires de la se~ion de Lausanne (1927 1) 33 Annuaire IDI 455-498 at 465-471; Eagleton, Clyde, Thc Rc"ponsibility of Statcs in International La~ (New York: New York University Press, 1928) al 1.ü9, Accioly, Hildebrando, supra Dote 36, al 364-370. Sec also Judge Krylov's insistence that Slale responsibility presupposes ~ in bis dissenting opinion in the judgment of April 9, 1949, in The Core\! Channel Case (Merits), (1949) I,CJ. Reports 4-169 at 68-77, especially al 71-72.
International Responsibility and Liability P!I&C 14
equivalent to the State itself, and it was thus consistent to think of a State as having a
personality4s. Nowadays, however, the role of a head of State is no longer such that one
would even consider regarding him or her as the personification of the State. Therefore,
the older, subjective theory of fauIt cannot be upheld any more.
A more mod"!rn approach focuses on the personal fauIt of the acting individua1.46 White
sorne authors advocating it hold the view that State responsibility only arises if falllty
behaviour on the part of the acting organ can be proven47, others regard a general
statement that human fallibility caused the damage as sufficient48• In cases in which the
4S
46
47
48
Louis XVI remarked: "L'Etat c'est moi". On the influence the absolutistir conception of the relationship betwecn a State and its ruler had on internationallaw see Cohn, M.G., supra note 40, at 217. Triepel, Heinrich, Volkerrecht und Lande<;recht (Leipzig: C. L. HirschfelJ, 1899) at 337-355; Oppenheim-Lauterpacht, supra .lote 35, al 343; Slrisower, M.L., supra notc 44, at 4<>S-472; Bourquin, M., supra note 28, at 502-.503; Hershey, Amor S., The Essentials of International Puhlic Law and Organizations (New York: Macmillan, 1927) at 254; Eaglcton, Clyde, The Re<;vonsihililY of Stalçs in International Law, see supra note 44, at 213; Calvo, Carlos, !& droit international théQrctiQUC...k1 pratiQue, vol. III, 4th ed. (Paris: Guillaumin Cl cie, 1888) al 135-138; Phillimore, Robert Joseph, Commentaries upon International Law, vol. l, 3rd cd. (London: Bulterworlh~, 1879) al 328; Ago, Roberto, "DoiS Verschulden im valkerrechtlichcD Unrccht" (1910) 20 ZoR 449-554 al 465. Supporter!. of this concept are of the opinion that fault is a prcrequisite for State responsibility. Since, bowever, both, the psychcalogical, (sec Thon, August, Fcstrcde. ~ehallcn in der Uni"crsitatc;kirchc zu knA zur Akademischen Preisverleihung vom 16. Juni 18()4 von AU~U51 Thon (Jcna' UniversitatsBuchdruck G. Ncuenhahn, 18941) and the lagical (see Frank, Reinhard, cd., Das Straf~csç.!Z.hYçhlyr das Deutsche Reich nebst dem Einfuhrungc;geset?:, 5th to 7th ed. [Tubingen. Mohr, 19(8) al 103) notion of fault arc inextricably linked to the conduct of an individu al, the term fauIt will, when uscd in the context of internationallaw, have to denote the faulty bcha\iour of an indlvidual which 15
attribut able to a State. Sec Welzcl, Hans, Das dcutsche Strafrççht. Eine sy~tematic;che Dars!cllun~ von Hans Welzel, llth ed. (Berlin: de Gruyter, 19(9) al 121: 'Schuldig kann sich dllein der mit eincm Willen begabte Ein7..clmcnsch machen, nkht cine Korpcrschaft oder ein sonstiges Kolldtlv. Eine andere Frage ist es, ob und inwieweit eine Korperschaft fur dk durch ihre Organe begangenen Dcliktc baftel.". Adhering ta the abovc-mentioned concept is, for instance, Guggenheim. S'!e Guggenheim, Paul, Traité de Droit international vuhlic. avec Mention de la PratiQue internationale ct suisse, vol 2, 2nd ed. (Geneva: Georg & Cie, 19(7) at 553. A similiar train of thougbt underlies two provisions in the law of the Federal Rcpublic of Germany: § 839 Burgerliches Geset7buch (BGB), Art. 34 Grundgescll (GG) provide thal the State or the respective governmental authority arc generally responsible for damage caused by a civil servant acting in his or hers official capacity. § 839 1 1 BGB. "Verlet"'l cÎn Beamter vorsatzlich oder fahrlassig die ihm einem DriUtn gegenubcr obliegende Amt<;pllichl, 50 hat cr dem Dritten den daraus cntstchendcn Schadcn zu erscl7.cn. "Art. 34 1 GG: "Vcrlcllt jcmand in Ausubung eines ihm anvertrautcn offentlichen Amtes die ihm einem Drillen gegenubcr obliegcnde Amtspflicht, 50 trirft die Verantwartlichkeil grundsatzlich den Staat oder die Korpcrschaft, in deren Dienst er steht." Sec Goldscbmidt, Jurgen, supra note 15, at 17-18.
1
J
,
International Besponsibility and Liability PiI&" 15
defendant c1aimed that the State organ in question had not been at fault, arbitral
tribunals as weil as the International Court of Justice have supported the position that
proof of sorne kind of fault, be it culpa levissima, was necessary for State responsibility
10 arise49• Mere bona fides of the responsible organ, however, does not suffice as an
exoneration if a more diligent conduct had prevented the occurrence of the error and
there was no mistake in the internaI regulationsso. Writers in support of tbis theory,
which combines subjective and objective aspects, distinguish between two types of
obligations under internationallaw: such requiring the adoption of a particular course of
conduct and such requiring the achievement of a specifie resuIt or the prevention of a
given eventSl• As far as the breach of an obligation requiring the aehievement of a
specifie result or the prevention of a given event is concerned, the view that fault is a
condition for Stale responsibility is maintaineds2• With respect to the breach of an
obligation requiring the adoption of a particular course of conduct, on the other hand,
49
50
S1
S2
ln tbe Naulilaa Case, for example, tbe German-Portugese arbitral tribunal denied the responsibility of Portugal Cor a killing, because the Portugese officer concerne<! had lhought he acted in self-defence, Responsabilité d'A"çma~ne à raison des domma~es causés dans les colonies porty&aises du Sud de l'Afrique (sentence sur le princive de la responsabilité), Portugal contre Allemagne, arbilral award oC June 30, 1928, (1949) Il Rep. Int'I Arb. A. 1011-1033 at 1025; see also the award ofthe Italo-Ethiopian Commission of Conciliation and Arbitration of Scptember 3,1935, concerning the Wal Wallncidept. (1949) III Bep. Inl'I Arb. A 1~c;7-1667 al 1666. See the award of the British·American arbitral tribunal in the case Owners of the Jessie, the Tbomas f, Bayard and the Pcscawha (Great Brilain) v. Uoitcd Stales, Oecember 2, 1921, (1955) VI Rep, Int'I Arb, A. 57-60 at 59: "It is unquestionable thatthe United Stales naval authorities acted bona fide, but ... any Government is responsible .. , for errors in judgment of its officiais purporting to aet within tbe scope of their duties and vested with power lo enCorce lheir duties". Sec supra 2,1.2.1. Sorne authors hold the view that in cases where tbe act in question consÎsts of an omission, fault in the form of Cailure lo ael with due diligence should he a prerequisite for State responsibility; see, for example, Strupp, Karl, Eléments du droit international public: universel. européen et américain, vol. l, 2nd cd. (Paris: Edilionr. internationales, 1930) al 330 and Guggenheim, Pau~ "Les principes de droil international public" (1952 1) 80 BdC 1-189 al 147-148. Tbe standard of due diligence Îs, however, an objective clement of the primary norm rather lban a criterion within the notion of fault; see infra al 2.1.2.4, On the distinction bctween commission and omission and ils influence on the requircmcnts Cor Stale rcsponsibility to arise sec Brownlic, lan, System of the Law of Nations. SI ale Responsibilily, Part 1 (Oxford: Clarendon Press, 1983) at 42-43, especially al 43: "Not only is Ihe distinction between commission and omission ineleganl bul there is here a fundamental error which oonsists in lhinking lhat the existence of a duly 10 act (by way of control or prevention), and a degree of advertence consistent with the concept of a dut y of control or prevention, are consistent .Q!!]y with the principle of fault."
1
International Responsibility and Liability Pil&e 16
the majority of legal scholars today are of the opinion that the occurrence of an
attributable iIIicit act al one gives rise to State responsibility53.
The late nineteenth century brought about yel a third approach to the concept of State
responsibility and the role of kWl!il. Purporters of positivism opposed the view that ideas
stemming from domestic civil law should or could he transferred into international law.
To them, public internationallaw was a legal system sui ieneris, which was to develop ils
own specifie norms and structure. Thus, the notion of fault, which clearly originated
from a system of relations between individual human beings, was considered to be alien
to the conditions of international life, involving relations between highly complex
communities, acting through a variety of institutions and agenciesS4•
The theory of objective responsibility, which has the pragmatic advantage of avoiding
the often complicated proof of fault, has gained considerable acceptance5S•
Whiehever theory they adhere to, scholars cite State practice and decisions of
international tribunals to support it. Since eus tom in this area of law is not uniform,
S3
54
55
See especially AnziJotl~ Dionisio, Tçoria &encraI della responsabilità della Stalo nel diritlo inlernazionale (Firenze: Lumachi, 1902); Guggenheim, Paul, supra note 47, al 50-53. See Goldschmidt, Jürgen, supra note 15, at 19. See Kelsen, Hans, "Unrecht und Unrecbtsrolgen in Vôlkerrecht" (1932) 12 ZoR 481-608 at 3n and 544; Guggenheim, Paul, Traité de Droit international public, avec Mention de la PratiQue internationale çl suisse, supra note 47, at 553; Déccncière-Ferrandière, A., La responsabilité de~ Etats à raison des dom maies subis par des étran~crs (Paris: Rousseau, 1925); Basdcvant, Jules, "Règles générales du droit de la paix" (1936 IV) 58 RdC 470-692; Borchard, Edwin, supra noie 40 at225; Starke, J. G., supra noIe 15, at301-302; Bourquin, M., supra note 28, at503·508; An7jlolli, Dionisio., "Observations· (19271) 33 Annuaire IDI 499-501 at 500; Fauchille, Pau~ Traité de droit inlernalional 1tlIhJk, vol. l, part 1 (Paris: Rousseau, 1922) at526-528. The last author regards "faute" as bcing synonymous with the illicit nature or a particular conduct. He disagrees with lhose that sec rault as a subjective element in the concept of Slale responsibility. On the concept of objeclive responsibililyand the tendency to widen the range or responsibility see EagJeton, Clyde, "International OrganÏ7.ation and the Law or Responsibility" (1<)50 1) 76 RdC 32.1-425 al 381-384. See also "League or Nations Conference for the Codification of International Law, Provisional Minutes or the 12lh Meeting of the Third Commission, Responsibility of Stales, April l, 1930M
, at39; "Responsibilily involves ror the Slatc concerned an obligation to make reparalion for the damage suffered in 50 rar as it results rrom failure to eum .... ,. wilh the international obligation: Favre's definition or objective respmlsibility as any international responsibility resulting rrom the attribution or an agent's illicit aet to a Stale is inconsistent with the general USé\ge of the term and very misleading. He al~ distinguishes bctween subjective and objective fault, the former denoting what has traditionally been ca1led rault, the JaUer describing a Stale's railure to aet with due diligence. See Favre, Antoine, "Fault as an Element oC the Illicit Act" (1964) 52 Geo. L. J. 555-570 al 560-562.
t
f
International Responsibility and Liability
cases are presented in su ch a way that aspects seeming to favour the respective author's
theoreticaJ concept are emphasized. As a result, the same incident or quote is at times
referred to as proof for diametric viewpointsS6• However, a general trend towards a more
56 Thus, for example, tbe case Jean Baptiste Caire. Estale of (France) y. United Mexican States, supra note 36. Verdross, Alfred, Vôlkerrecht, 5th ed. (Wien: Springer, 19(4) at 378 cites it as an example for fault-based responsibility, white Schwarzcnberger, Georg, International Law as applied by International Courts and Tribunals, vol. l, 3rd ed. (London: Stevens, 1957) at641 cites it as supporting the cOllcept of objective responsibility. Otber cases frequently cited by purporters of aU three arc the Alabama Case, Moore, John Basselt, History and Dil:est of the Intel national Arbitrations to which the United States has been a Party, vol. 1 (Washington: Government Printing Office, 1898) 495-682, and the CorCu Channel Case (Mcrits), supra note 44, at 37. On tbis topic see also Graefrath, Bernhard, Edith Oeser and Peter S. Striniger, Vblkerrcchtliche Verantwortlichkeit der Staaten, (Berlin: Staatsverlag der Deutschen Dcmokratischen Republik, 19n) al 68-72, and Müoch, Ingo von, supra note 22, al 154, foot note 1043.
~,
f
-,
International Responsibility and Liability Paac 18
objective standard of responsibility has become apparents7, Often, judgments and awards
of international tribunals declare States responsible stating but the occurrence of an
internationally wrongful ac~, Not ail these decisions are evidence of the tribunal's
conviction that international responsibility should be objective, since the question of
fault may not be dealt with only because the defendant never l'aised il. Nevertheless, a
57
58
Sec the studies by Kuhn, Margarete, Verschuldens- oder Verurliachun~shaftuni der Staaten im allKemeinen Vdlkcrgcht (Dissertation, Genf, 1961) and by Perret, Robert-Louis, Dc la faute et du devoir en droit international. Fondement de la responsabilité (Dis. .. ertation, Zùrich: Perret, 19(2). I<uhn examines e1even dcci!>ions prior to the creation of the Permanent Court of Arbitralion (at 14-25), eight decisions prior to the establishment of the P.C.IJ. (at 37-51), five çases decided by the P.C.lJ. (at 57-58) and one cast' decided by the I.CJ. (at 58). Of the first group. one was decided on the basis of fauJt-based respomibility. the second and the third group contained four dccisions foundcd on responsibility based on fault. the decisions of the last two groups ail showed adherence 10 the concept of objective respom.;bility. Perret cites lhe Corfu Channel Case (Mcrits) supra nole 44; the Rcparation for Injuries Suffered in the Service or the United Nations. AdvisoO' Opinion (1949) I.CJ. Reports 174-220; the Cheverau Case, France v. United Kingdom, award of June 9, 1931. (1949) JI Rep. Inl'I Arb. A. 1113-1143; the case of Jean-Bapti<;te Caire, Estate of (France) v, United Mexican Stales, supra note 36; the Alabama Case. supra note 56, the çase Qwner!> of the Jessie. the ThQm~ F, Bayard and the Pescawha. supra note 50; the Samhiaggio Case, Italy v. Venezuela, Claims Arbitration. 1903, Venezuelan Arbitrations of 1903. Senate Doc. 316, 58th Congo 2nd ~ess. 1904.4620 Report of Jackson H. Ralston, at 666; the case Gcrtfllde Parker Masscy V. Mcx'.::2, opinion rendcred on April 15. 1927, (1927) 21 Am. J_ In!'1. L. 783-791; the dccisiù.l of May 22.1933. in the çase yust Adamli (United States) v, Panama, (1955) VI Rep Int'I Arb. A, 308-312; the award of June 21. 1933. in the case YiJ.lW: A. NQyes (United States) v. Panama. (1955) VI Rcp. Inl'I Arb. A. 321-324 at 322-323, and the arbitral award of April 16, 1938, and March 11, 1941, in the Trail Smeltcr Case, (1949) III Rep. Int'I Arb. A. 1905-1982, as exarnples for decisions adhering to the theory of objective responsibility (at 147). He cites the case Affaire de l'Indemnit~ Russe. (1961) XI Rep. Inl'I Arb. A. 419-447, the ChaUin Case. United States V. Mexico, General Claims Commission. 1927, Opinions of Commissioners. 422, sec Brigg. ... Herbert W., :fhe Law of Nations. Cases. Doçuments. and Notes. 2nd cd. (New York: AppletonCentury-Crofts, 1952) at 666; the case Thomas H. Youmans (U.SA.) v. United Mexiçan S'&Ç1. supra note 36. the Tribolct Case, United States (Trj'.x>let Claims) V. Mexico, General Claims Coml1lissioners, Opinions (1931),68, (1929-1930) 95 Ann. Dig., and the Peleus Case, War Crirr.es Court, Hamourg 1945, see Green, L. G .• lnternational Law thrOUKh Cases, 2nd cd. (London: Stevens & Sons, 1959) al 674. as examples for decisions following the theory of fault-based responsibilily (at 147). According to Perret, both theori(:s have been used in the case HarO' Roberts (U.SA) v, United Mexiçan States, opinion and decisioD of November 2, 1926, (1927) 21 Am. J. Int'1. L. 351-361 and in Affaire des biens britanniques au Maroc espan~Ql, supra noIe 38. See Verdross. Alfred and Bruno Simma. supra noie 35, al 852.
1
International Responsibility and Liability PilKC 19
variety of cases, including sorne of the classical and often cited ones, do reveal the
court's or arbitra] tribunal's adherence to the concept of objective responsibilityS9.
2.1.2.4 The Standard or Due Diligence
ln many decisions, a State's international responsibility is declared to be founded on a
failure to act with due diligence60• Such a statement suggests subjective elements in the
tribunal's examination of responsibiIity and may easily be confused with the notion of
fault.
The obligatiod to act with due diligence caUs upon aState to adjust its conduct to a
legally defined standard of care. Similar to the tort of negligence in the Anglo-American
legal system61 and the "Sorgfaltspflichtverletzung" in the civil law of the Federal
S9
60
61
See the case of kan-Ba[lliste Caire. Estate of (France) v. United Mexiçan States, supra note 36. See also the award in L'Affaire de la Mer du Nord ou du DOiier Bank entre la Russie et la Grande Breta~ne, in Scott, James Brown, Les travaux de la Cour permanente d'arbitra" de la HalWe (New York: Oxford University Press, 1921» at 427-434; the Trail Smelter Case, supra note 57, and the:r.ru: Corfu Channel Case (Merils), supra note 44. See the case of the Mexican Shevher~, in Moore, John Bassett, ~ .. t of internationallaw as embodicd in divlQmatic discussions. treaties and other international a",eements. international awards. the decisions of municipal courts, and the writin~ of jurists (Washington: Government Printing Office, 19(6) at 787-790; see also the case Representatives of Elizabeth Cildenheild (Great IIritilin) v. United ~ (1955) VI Rep. Int'l Arb. A. 40-41 at 41 and the award toncerning the Will Wallncideot, supra note 49. The "standard of tonduct" enlails an objective obligation to adopt a certain conduct. Failure to do 50 is considered to be a "breach of dut y" • See Prosser, William Lloyd, Handbook of the Law of Torts, 4th ed. (Sl.Paul, Minnessota: West, 1971) at 146. See also Caemmerer, Ernst von, "Wandlungeo des Deliktsrechts·, Ernst von Caemmerer, Ernst Friesenhahn, Richard Lange, cds, "und,rt Jilhre Dculsches Rcchtslebcn. Festschrifl rom hundertiàhri"en Bestehen Jes Dcutschen Juristentaies 1860: J.22Q, vol. 2 (Karlsruhe: C.F. MueUer, 1960) 49-136 at 71: ·Die negligence-FaUc machen die Hauptmasse der Deliktsfalle aus. Dabei wird negligence nicht ais Schuldform aufgefaBt, 50ndern als objektiver Tatbestand von Verstô8en gegen Sorgfaltspflichten, die zur Schiidigung anderer Cûhren. Etwa seil der H.Ufle des Jahrhundcrts ist negligence ais besonderer Deliktstalbestand anerkannt.-
International Resnonsibility and Liability P;w;20
Republic of Germany62, the failure to act with due diligence is not a subjective element
of the individll".1 fault a subject of law can be reproached of. The standard of due
diligence can thus rather be de~cribed as an objective aspect of a primary norm of
international law the breach of which constitutes an internationally wrongful act and
entails State responsibility63.
2.1.2.5 Circumstances Precluding Wrongfulness
Certain exceptional circumstances given, a State's non-compliance with an obligation
under international law m(ty not be regarded as an internationally wrongful act64•
Traditional1y, exoneration has been granted where the victim had consented6S, where a
State acted in self-defence66, in a state of necessity67, or where there was proof of force
62
63
64
6S 66
See § 276 BGB: * ... FahrJassig handcll. wer die im Verkehr erforderliche SorgCalt auBer acht Ja8 ...... On tbis provision in tbe German civil code see PaJandt-Heinrichs, Burecrliches Gesct7buch, Kommcntar, 49th cd. (München: C.H. Bcck'schc Verlagsbuchhandlung, 1990), § 276 4b: "Abweichend yom Strafrecht gilt im BGB kein individueller. sondern cin auf die allgemcinen Vcrkehrsbedürfnisse ausgerichtcter objektiver, abstrakter Sorgfaltsma8stab .. .". See aJso Deutsch, Erwin, Fahrlasc;i~kcil und erforderliche SOfifalt (Kbln: Carl Hcymanns, 19(3). According to Verdross, Alfred and Bruno Simma, supra note 35, at 853-854, the standard of due diligence is approaching the level of objeclivity. This does, however, nol exculde the right of a Stale having suffered harm 10 daim damages from the State that has caused it. See art. 35 of the J.L.C. draft articles on State responsibilily, supra note 30. On the volcnti non fit iniuria-rule see Ago, Roberto, "Le délit international", supra note 15, at 533-536. The first elaboration of self-defence dates back to July 27,1842, when Daniel Webster, American Secretary of Stale, sent a 1cUer to Lord Ashburton regarding The Caroline and Mcleod Cases. In a formula that has become famu.ls, he called upon the British Government to show a· ... necessity of selfdefence, instant, overwhclming, leaving no choice of means, and no moment for delibcration ... ft will be for il 10 show also, that the local authorities .. , did nothing unreawnablc or excessive; sin ce the aet, justified by the necessity of sclf-defence, must he lirnited by lbal necessity, and kept clearly within it..:; sec J('nnings, R. V., "The CalOtine and Mcleod Cases" (1938) 32 Am. J.lnt'I L. 82-99 at 89. See also Beyerlin, Ulrich, *Die israclische Befreiungsaktion von Entebbe aus volkcrrcchtlicher Sicht" (1977) 37 ZaôRV 213-243 al 221-222. Self-dcfencc bcing an institution present in ail Icgal systems, it is a general principle of law as described in art. 38 para. 1 lit. c of the I.CJ.'s Statute; sec Delivanis, Jean, La lémtime défense en droit international public moderne (Paris: Librairie Générale de Droit et de Jurisprudence, R. Pichon el R. Durand-Aunas, 1971) al 3-7.
1
t
lDillDational Responsibility and Liability Page 21
majeure68 or an intervening act of a third party69, or if the act constituted a legitimate
reaction to a wrongful act previously committed by another StateiO, In addition to these
grounds, which excIude the wrongtulness of an act of aState not in conformity with
international law ab initio, an act may be rendered lawful if the State having suffered
damage subsequently approves of the act, waives the right to daim reparation71, or if the
availability of an action is limited due to estoppel by inaction 72,
2.1.2.6 Legal Consequences of an Internationally Wrongful Act
2.1.2.6.1 Basic Principles and Modes of Reparation
Once aState has been held responsible for damage caused by an internationally
wrongful aet, it is under an obligation towards the victim State to make reparation 73, As
early as 1927, the Permanent Court of International Justice stated that reparation must,
67
68
69
70
71
72 73
See Affaire du Nçptun" Décision de la Commission mixte de l'article VII du Traité de jay du 19 novembre 1794 entre les Etats-Unis et la Grande-Bretagne, in Moore, John-Basselt, HistOly and pi&est of the International Arbitrations ta which th, United Slat,s bas he,n a Party, vol. IV (Washington: Government Printing Office, 1898) 6; La Pradelle, Albert de and Nicolas Politis, ~ d,s arbitri!ies internationaux, vol. 1 (Paris: Les Editions Internationales,1957) 137-178; Cavaglier~ Arrigo, supra note 15, at 557-559; Ago, Roberto, ·Le délit international" supra note 15 at 540-545. See Beyerlin, Ulrich, supra note 66, at221-222. See the arbitral award of November 11, 1912, in the case Affaire d, l'Indemnité Russe, supra note 57 at 443: ·L'exception de la force majeure ... est opposable en droit international public aussi bien qu'en droit privé; le droit international doit s'adapter aux necessités politiques,· See also Max Huber's decision in the case Affaire des biens britanniQue au Maroc espaif1ol~ lIupra note 38, at 642: • ... Ie principle de la non-responsabilité de l'Etat pour les dommages causés par les émeutes populaires, les révoltes, et les guerres, ... ces evénements doivent être considérés comme des cas de force majeure.". See the arbitral award of June 30, 1928, in the Naulilaa Case, supra note 49, at 1026: ·[La représaille] a pour effet de suspendre: momentanément, dans les rapports des deux Etats, l'observation de telle ou telle règle du droit des gens ... Elle serait illégale si un aele préalable, contraire au droit des gens, D'en avait fourni Je motif." 0.., lawful reprisais see Ago, Roberto, "Le délit international", supra note 15, at536-54O, and Tomuschal, Christian, "Repressalie und Retorsion - Zu einigen Aspekten ihrer innerstaatlichen Durchfùhrung· (1973) 33 ZaôRV 179-222. See Verdross, Alfred and Bruno Simma, supra note 35, at872-873. Sec King, B. E., ·Prescription of Claims in International Law", (1934) 15 Bril. Y. B. Int'l L.82-97. See Reuter, Paul, ·Principes de Droit International Public·, (196111) 103 RdC 423-656, at 595.
1
International Responsibility and Liability PJI&C 22
as far as possible, wipe out all the consequences of an iJIicit act 74. If the actual
restoration of the situation as it was before the occurrence of the delict, restitulliLin
inte~rum7S, cannot be achieved, monetary compensation and satisfaction as subsidiary
forIllS of reparation may be resorted t076.
With regard to physical damage, the status QUo.J.\I!k should be re-established17• If
restitutio in intei:rum is wholly or partially impossible or if the victim State has
requested it78, damages amounting to an equivalent of the value of restitutio in inte&rum
are to be paid79• The obligation to make reparation includes lucrum cessans as far as it
74
75
76
T7
78
79
See the judgment of July 26, 1927, in the ~ase CQnccrnin& the Factory al Chor76w (Claim for Indemnity) (Merits). (1929) P.C.lJ. Reports, Series A, No.17 at 47: "The essential principle containcd in the actual notion of an iIlegal aCl - a principle which seems to be estabUshcd by international practice and in particular by the decisions of arbitral tribunals • is that reparation mu~t, as far as possible, wipc out aIl the consequences of the illegal acl and re-establish the situation which would, in aU probability, have existed if that acl had not been committed. • See also the I.CJ.'s advisory opininn of April Il, 1949, in the case Reparation for Injuries Suffcrcd in the Service Qf the United Stales, supra nQte 57, at 184. On lhis lopic see Lais, R., Die Rccht~fcl~!èn volkerrechtlichcr Deliktc, Institut fûr internationales Recht an der Universitat Kiel, Vortrage und Einzelschriften, Erste Reihe, No. 18 (Berlin: Stilke, 1932); Personnaz, J., La réparation du prrjudicç en droit international public (Paris: Sirey, 1939); Reitzer, L., La réparation comme conséquence de l'acte illicite en droit international (Paris: Sirey, 1938); Bollecker-Stern, Brigitte, Le préjudice dans la théorie de la reswn~abilité internatiollill.ç (Paris: Pédone, 1973). On the concept of restitutio in intearum in international law sec Brownlie, lan, ~m of the Law of Nations. State Responsibility, supra note 52, at 210-222. Sec also Vâsârhelyi,lstvan, Restilution in International Law (Budapest: Akadémiai Kiad6, 19(4) - with special regard to the restitution of propcrty wrongfully removed from temporarily occupied territory of an enemy. See Schwarzenherger, Georg, supra note 56, at 653; Brownlie, lan, supra note 42, at 457-464; Eagleton, Clyde, "Measure of Damages in International Law", supra note 28, at 53. See the award of October 13, 1922, in the case Norwegi.m Shiw",:oers' Claim, Norway v. United States, (1948) 1 Rep. Int'I Arb. A. 307-346, at 338: ·Just compensation implies a complete restitution of the stalus QyQ ante .... and at 334: • ... such compensation is measured not only by: (a) the fair value of tbe propcrty taken, but also (b) at the lime and place it was taken, and (c) in view of ail the surrounding circumstances ...... See the awards of Septembcr 2, 1920 in Affaire des propriétés reliiPcuscs, France, Royaume-Uni, Espagne contre Portugal, (1948) 1 Rep. Int'I Arb. A. 7-57 al 15-16. See the decision of the I.CJ. in the Case çonçernini the Factor:)' at Chor16w (Claim for Indcmnity), supra note 74, at 47:" Restitution in kind, Qr, if this is not possible, payrncnt of a sum corresponùing to tbe value which a restitution in kind would bear; the award if Deed be, Qf damages for loss sustaincd which would not he covered by restitution iD kind or payment in place Qf it - such are tbe principles which shQuld serve to determine the amount of compensation due for an ael conlrary to international law." See also the decision of September 2, 1920, in the case Affaire des propriétés rcli~cuscs. France, RQyaume-Uni, Espagne contre PQrtugal, supra note 78.
International R1<sponsjbility and Liability Pa&e 23
could reasonably be expected to have been gainerl8O• l.oss sustained by the victim State
because reparation was not made immediately after the damage occurred is considered
as lucrum cessans and has to be compensated. Thus, unless the court or arbitral tribunal
already took damnum emereens into account when assessing the damage, interest on the
amount due is to be paid not only for the time pursuant to the judgment or award, but
also for the period between the occurrence of the damage and the tribunal's decision81•
Cases of non-materiaJ Joss still confront tribunals with Many unresolved questions, the
most difficult one of them being that of the assessment of damages82• Where the
international deJict consists of an ilJicit act not causing physicaJ harm, as, for exampJe, a
breach of sovereignty by intrusion, the role of the payment is more or less that of
providing pecuniary satisfaction. However, the purpose of the award of compensation is
not that of pecuniary satisfaction or punitive damages, but rather to provide what is by
80 See the Case concerninK the faclOO' at Chorz6w (Claim for Indemnitrl. supra Dote 74, at 56. See a1so the arbitral award of July 24. 1930 in the case Shufeldt Claim, (1949) JI Rep. Int') Arb. A. 1079-1102 at 1099: "(T)hc lucrum cessans must he ... not 100 remote or speculative .... Sec also the AmericanVenezuelan Claims Commission's decision of December 31, 1903 in the RudlQff Case, (1959) IX Rep. Int'I Arb. A. 244-261 at 258: "Damages to be recoverable must he shown wilh a reasonable degree of
81
82
certainty, and can not he recovered for an uncertain loss.". Sec the dccision of January 16, 1923, in the case The S.S. "Wimbledon", (1923) P.C.U. Reports, Series A, No.l, at 32. See a1so Accioly, Hildcbrando, supra note 36. at 416-419. See Wolf Joachim, "Gibl es im Volkcrrecht einen einheitlichen Schadenshegrifr?" (1989) 49 ZaoRV 403-444; Quoc Dinh, Nguyen, Patrick Daillier and Allain Pellet, supra note 23 at 709-710.
1
l
International Responsjbility and Liabilil)' Pa&c 24
custom recognized as a recompense83• International tribunals have so far taken a very
cautious approach to the issue of reparation for non-material damage84•
Satisfaction can be defined as any measure that the author of an illicit act is bound to
take under customary international law or under an agreement by the parties to a
dispute, apart from restitutÎo in inte~rum or monetary compensationss. Not only formaI
apologies and ceremonial honours to an insulted flag are phenomena of this mode of
reparation86, but also the effective punishment of responsible State organs or other
83
84
SS B6
An extensive elaboratioD on why the notion of punitive damages should he alien to public international law cao he found in the opinion of November 1,1923, in the Lusitania Cases. (1956) VII Rep.lnt'. Arb. A. 32-44 al 38-44. On the punitive element in the award of damages to relatives of victims of criminal aets in cases where aState failed to adequately prosecute and punish the eulprits see Riec, William Gorbam, ·State Responsibility for Failure to Vindicate the Public Peace·, (1934) 28 Am. J. Int'I L. 246-254~ Garcia Amador, F. V., supra noie 22, at 477-478. See Dumas, Jacques, supra note 35, al 192, on tbe incompatibility of the notion of Stale, characterized by sovereignty, with the assumption of criminal responsibility - ·Vniversilas delinQucre non potes!". Eagleton and Briggs argue in favou: of the imposition of punitive damages. See Eagleton, Clyde, "Measure of Damages in International Law", supra note 18, al 61-66, and Briggs, Herbert, W., "The Punitive Nature of Damages in International Law and State Responsibility for Failure to Apprehcnd, Prosecute or Punish-, Mathews, John M. and James Hart, eds, Essays in Po)itical Science in Honor of Ws:stc1 Woodhury Willou~hby (Baltimore: John Hopkins Press, 1937) al 339-353, and in The Law of Nations. Cac;cs. Documents and Notes, supra note 57, at 140-147. See for example, the arbitral award of November 16, 1925, in tbe case Laura May Buf1in~Qn JaDes el al. (U.S.A.) v. United Mcxican State~, (1952) IV Rep. Int'I Arb. A. 82-98 at 90: "Giving cardul consideration to ail elements involved, the Commission bolds that an amount of $12,000, wilhout interest, is not excessive as satisfaction for the personal damage caused the c1aimants by the nonapprehension and nonpunishment of the murdcrer of Janes.". Sec also the Joint Final Report of January 5, 1935, in the l'm alone Case, (1949) III Rep. Int'( Arb. A. 1613-1618 at1618: '7be Commissioners consider thal, in view of the facts, no compensation ought to he paid in respect of tbe loss of the ship or the cargo. The act of sinking the ship, bowever, by officers of the V.S. Coast Guard, was, as we have already indicated, an unlawful act; and the Commissioners consider that the United States ought formally to acknowledge ils illegality, and to apologize to His Majesty's Canadian Government therefore; and, furlher, thal as a material amend in respect of the wrong tbe United States sbould pay tbe sum of $ 25,000 to His Majesty's Canadian Governmcnt; and tbey recommend accordingly.· . Sec Brownlic, Ian, Systems of 1 he Law of Nations. S!ale Responsibility, supra note 52, al 208. Sec Verdross, Alfred and Bruno Simma, supra note 35, at 877.
•
t ..
International ResponsibiJity and LiabiJity Pue 25
individuals87• On the other hand, an international tribunal's declaration that a particular
act of aState is to be considered as a breach of duty under international law may
practically have satisfying effect for the victim State88, but cannot be a form of
satisfaction. Reparation can only be made by the State that has caused the damage in
question. Therefore, in spi te of the terminology used in sorne decisions89, a statement
made by an international court or arbitral tribunal does not qualify as satisfaction90•
87
88
89
90
Sec the decision in the case Affaires des biens britanniques au Maroc espaK"ol, supra note 38, at 64S: .... la responsabilité de l'Etat peut être engagée dans les sihlations en question, non seulement par un manque de vigilance dans la prévention des actes dommageables, mais aussi par un manque de diligence dans la poursuite pénale des fauteurs, ainsi que dans J'application des sanctions civiles voulues.w and al 710: W ••• les autorités espagnoles n'ont rien fait pour amener les malfaiteurs à rendre l'argent et pur les punir ... [O)n est fondé à en~isager cette inaction comme un manquement à une obligation internationale.". See also tbe arbitral award in the case Laura May Buffinldon JaDes et al. (V.SA) v. United Mexican States, supra note 84, al 83·86; tbe decision of May 5, 1927, in the case Georae Adams Kennedy (U.S.A ) \<. United Mexiean States, (1952) IV Rep.lnt'l Arb. A. 194-203 at 196; the award of July 8, 1927, in the case H. G. Venable (U.SA,) v. United Mexiçan States, (1952) IV Rep. Int'I Arb. A. 219·261 at 257; the decision of Oetober 15, 1928, in the case Loujse O. Canahl (U.SA,) v, United Mexican States, (1952) IV Rep. Int'I Arb. A. 389·391 at 391; the award in the case Waller..&.NQyes (United States) v, Panama, supra note 57, at 308·312, and the decision in the case Gust Adams (United States) v. Panama, supra note 57, at 321-324. See abo Point VII b of the request for information addressed to the governments by the Preparatory Committee for the 1930 Hague Conference for the Codification of International Law, League of Nations, Bases of discussions for the Conference drawn up by the Preparatory Committee, vol. III: ResponsibililY oJ States for dama"es cau'ied in their Tcrritory to the Person or Propcrty of ForciiPcrs (C.7S.M.69.1929.V) at 93 and 96: ~Circumstances in which the aets of private persons causing damage to the person or property of a foreigncr in the territory of aState may he the occasion of liability on the part of the State, and grounds on which such liability arises, if it docs arise: ." (b) Failure to exercise reasonable diligence in punishing persoll~ eommitting offenees against the persoD or property of a foreigner.". An extensive discussion citing a great varicty of cases as weil as articles and monographs cao he found in Roberto Ago's FQurth Report on Stale Responsibility, supra note 42, at 102-126 (comment on art. 11 of the darft articles on Stale responsibility), sec especially 123-124 wilh footnotes 272-304. Sec tbe Permanc:nt Court of Arbitration's decision of Affaire du CarthaG. (1961) XI Rep. Int'l Arb. A. 448-461 at 460: "CONSIDERANT que, pour le cas où une Puissance aurait manq~é à remplir ses obligations, soit générales, soit spéciales, vis-à·vis d'une autre Puissance, la constatation de ce fait, surtout dans une sentence arbitrale, consitue déjà une sanetion sérieuse, ..... Sec, for example, the I.CJ.'s judgment in The corru Channel Case (Merits), supra note 44, at 35·36: "The Court Il. [g]ives judgment that by reason of the aets of the British Navy in Albanian waters ... the United Kingdom violated the sovcreignly of the People's Republic of Albania, and that tbis dec1aration by the Court consitutes in itself appropriate satisfaction.·. Verdross, Alfred and Bruno Simma, supra note 35, at 817, support the view th al 5uch a dcc1aratioD may qualify as a mode of reparation. See Browntie, lan, System of the Law of Nations. Stale Reswnsibility, supra Dote 52, al 209.
1
International Responsibility and Liability Pue 26
2.1.2.6.2 Reparation for Damage Caused to Private Individuals
ln cases in which the damage resulting from an internationally wrongful act is caused to
private individuals, it is generally th~ir State of origin alone that may daim reparation,
since barm inflicted on its nationals is regarded as damage done to the State itselr1•
Individuals can c1aim reparation only if an agreement between their State of origin and
the State responsible for the damage grants them the right to do S092. Consequently, the
individual victim may not waive the right to daim reparation unless such a treaty exists9J•
This is of practical relevance, for a number of States, especially in Latin America, still
demand foreign nationals to declare a waiver of diplomatie protection from their State
of origin before permitting them to start trade relations or to take residenee. Diplomatie
91
92
93
See the P.C.IJ.'s decision of August JO, 1924, in the case Mavrommatis Palestinr. Concessions, (1924) P.C.U. Reports, Series A, No.2, at 12: ·C'est un principe élémentaire du droit international que celui qui autorise l'Etat à protéger ses nationaux lésés par des actes contraires au droit international commi!> par un autre Eta .... [e]n prenant fait de cause pour l'un des siens ... cel Etat fait, à vrai dire, valoir son droit propre, le droit qu'il a de faire respecter, en la personne de ses ressortissants,le droit international:. A similar statemcnt can be found in the judgment of February 28, 1939, in the case Panevezys-Saldutiskis Railway, (1939) P.C.lJ. Reports, Series A/B, No. 76 at 16. The same principle applies to juridical persons; sec the I.eJ.'s judgment of February 5, 1970, in the Case CQnççrnin& the Barcelona Traction. Li~ht and Power Company Ltd. (Second Pha~, (1970) 1 CJ. Reports 4-357 at 34: "Le droit interne détermine non seulement la situation juridique de la société anonyme mais aussi la situation juridique des personnes qui possèdent des actions de celle société:. For a critical reviewof this conclusion see Seidl-Hohenvcldern, Ignaz, "Ocr Barcelona-Traetion-Fall" (1971) 22 OZoffR 255-309 and Caflisch, Lucius C., "The Protection of Corporate Investments Abroad in the Light of the Barce)ona Traction Case". (1971) 31 ZaoRV 162-196. On the responsibility of States for aets and omissions of juridical organs see Jiménez de Aréchaga, Eduardo, "International Responsibility of States for AcIs of the Judiciary", Friedmann, Wolfgang. Louis Henkin and Oliver Lissitzyn, Transnational Law in a Changin!: Society, Essays in Honor of Philip C. Jessup (New York: Columbia University Press, 1972) 171-187. See tbe Freneh-Italian Commission in the dceision of Scplember 18, 1950, in Différend OUQ~ (1964) XIII Rep. InC) Arb. A. 222-242 at 236: "{L)a Commission ... est appelée à reconnaître ou à nier l'existence non pas seulement d'une obligation de J'Etat italien, mais d'un droit subjectif d'un ressortissant ..... Sec Verdross, Alfred and Bruno Sim ma, supra note 35, at 879.
,
1
International ResponsibiHty and Liability Pue 27
protection being an original right of the State in question, clauses to that effect can be of
legaJ significance only under exceptional circumstances94•
A special prerequisite for claiming reparation is added where the internationally
wrongful act consi~ts of a decision or an order that is not yet final. The State of origin's
right to daim reparation is then subject to the prior exhaustion of all effective and
available95 local remedies by the individual that has suffered the damage96• Thus, the
State responsible for the breach of duty is given the chance to remedy it before measures
are taken against it on the international plane.
94
9S
96
In the arbitral award of March 31,1926, in the case North American Dred~ini Company of Texas (U.SA,) v. United Mexiçan States, (1952) IV Rep.lnl'I Arb. A. 26-35 al 30, the validity oftbe so-called "Calvo clause" was Iimited in so far as .... tbis provision did not deprivc the c1aimant ... of bis undoubted right to apply to his owo Government for protection if his resort to the Mexican tribunals or other authorities available to him resulted in a denial or delay of justice ... In such a case the c1aimant's complaint would he not that this contract was violated but that he had heen denied justice ..... See Freeman, Alwyn V., "Recent Aspects of the Calvo Doctrine and the Challenge to International Law" (1946) 40 Am. J. Int'I L. 121-147, and Jiménez de Arécbaga, Eduardo, "International Responsibility", SIlI'cnsen, Max, cd., Manual of Public International Law (London: Macmillan, 19(8) 531-603 at590-593. If rcmcdies are only theorctically availablc or if they are for sorne reason hound to he ineffective, exhaustion of local remedies L" not a prerequisite for the State's right to claim reparation. As to the mcaning of incffectivencss sec the arbitral award of March 6, 1956. in The Ambatielos Claim. (1963) XII Rep. Int'I Arb. A. 83-153 at 119: "[I]t is gcncrally considered that the ineffectiveness of available remedies, without heing Icgally certain, may also rcsull from circumstance!. which do nol permit any hope of rcdrcss to he placed in the use of those remcdies.". See also the European Human Rights Commission's dccision of October 1, 1972, with regard to thc admissibility of an inler~State application against the Government of the United Kingdom lodged with the Commission by the Government of Irel.md (1972) 15 YB ECHR 76-259 al 242-252. Sec also art. XII of the Institut de Droit International's draft, supra note 35, and Borchard, Edwin M., sUl>l'a note 40, al 239-242. See the P.C.lJ.'s judgment in the case Mavrommatis Palestine Conc~ssions, supra note 91, at 12: ·C'est un principe élémentaire du droit international que cdui qui autorise l'Etat à protéger sel:> nationaux lésés par ses actcs contraires au droit international ... dont ils n'ont pu obtenir satisfaction par les voies ordinaires·. More explicit the arbitral award in tbe AmbatieIos Claim. supra nOie 95, at 120: .... the non-utilization of certain mcans of procedure cao be accepted as constituting a gap in the exhaustion of local remedies only if the use of these means of procedure were essential to establish the c1aimant's case beCore the municipal courts". Sec also Haesler, T., The Exhaustion of Local Remedies in the Case Law of International Courts and Tribunals (Leyden: Sijtboff, 19(8) and Dochring, Kar~ ·Lo.:.aI Remedies, Exhaustion or, Bernhard, Rudolf, ed., Ençydopedia of Public International Law, vol. 1 (Amsterdam: North-Holland Publishing Company, 1981) 136-140; Garcia Amador, F.V., supra note 22, at 455-461.
International Responsibility and Liabilily
2.1.2.7 The SeUlement of Disputes
Since the Jay Treaty of November 19, 179497, States have elaborated a broad variety of
methods for the pacifie settlement of future disputes as weil as the resolution of existent
interstate differences. Art. 33 of the Charter of the United Nations98 and the General
Assembly's Declaration on the Principles of International Law Concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of the United
Nations99 enumerate them but partially: diplomatie negotiations, inquiry, mediation.
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements.
Neither the Charter nor the Declaration impose the obligation on States to take
reeourse to one of these means in the event of a dispute. It is an implication of the
consistent applicat;on of the principle of the sovereign equality of States that only the
free will and the agreement of the parties involved can determine the procedure hy
which a seulement is to be reached1OO• Even in respect to a dispute "the continuance of
which is likely ta endanger the maintenance of international peace and security", the
parties shall, according to the Charter, first of a1l seek a solution by one of the means
mentioned or by "other peacefuJ means of their own liberal choice"101• Consequently, a
bilateraJ agreement between the States concerned is indispensable for the stipulation of
the means of dispute seulement as weil as the broader frame of the substantive law to be
97
98
99
Treaty of Amity, Commerce and Navigation bctween his Bril:mniç Mj!jcsty and the United States of America, donc al London on November 19, 1794, exchange of ratifications at London on Octobcr 28, 1795, Marlens NRG, le Série, 2nd cd, lome 5, 640-697. Sec supra note 14. "Declaration on Principlcs of International Law Concerning Friendly Relations and Co .. operation among States in Accordance with the Charter of the United Nations" UNGA-res. 2625 (XXV) of October 24, 1970, UNGAOR, Twenty·Fith Session, Suppl. No.28 UN Doc. A/8fJ82.
100 See supra note 99. 101 See the Charter of the United Nations, supra Dote 14, arts 2(3) and 33(1).
1
International Responsibility and Liabi!ity Pue 29
considered thereinlO2• Thus, no seulement is possible if the parties fail to reaeh an
agreement as to its methodsl03•
The parties' choice of a means of dispute seulement will depend on a number of criteria.
It will be influenced by the States' jntention to have a bilateral or a third party
seUlement, the desire for a more or Jess detailed regulation of the proceedings, the
request for a binding or a non-binding decision by a political or a non-political, a judicial
or a non-judiciaJ organ, as weJl as the objective or subjective importance of the
controversy to the parties.
If strictJy bilateral dispute seulement is intended, consultation and diplomatie
negotiations are the classicaJ first steps towards the resolution of a eontroversyl04. Where
opinions differ on points of fact, a seulement of the dispute may be facilitated by an
inquiry, which ai ms at elucidating the facts through an impartial and conscientious
investigation in order to provide an adequate basis for subsequent further negotiations
between the parties lOS.
By taking recourse to mediation or conciliation, disputing States avail themselves of the
mitigating influence and power of a third partyl06.
Mediation, especially in the framing of the 1907 Hague Convention for the Pacific
Seulement of Disputes, has traditionally been understood to be the assistance of a third
102 See Rosenne, Shabtai, "The Selllement of Treaty Disputes under the Vienna Convention of 1969" (1971) 31 ZaôRV 1-62 at 34. States may, of course, enter into bilateraI or multilateral agreements commitling themselves to a specifie system of dispute seulement prior the existence of any controversy.
103 See Mangold, Hans von, "Melhods of Dispute Seulement in Public International Law", Bôckstiege~ Karl-Heinz, ed., SeUlement of Space Law Disputes, Schriften zurn Luft- und Weltraumrecht, vol. 1 (Koln: Carl Heymanns, 1980) 15-26 al 16. See also Cohn, M. G., supra noIe 40 al 314 and Cavaglieri, Arrigo, supra note 15, al 564-565.
104 See Cohn, M. G., supra nOIe 40, al 314; Verdross, Alfred and Bruno Simma, supra noIe 35, al 889 and CavagIieri, Arrigo, supra note 15, al 566.
lOS See Mangold, Hans von, supra noIe 103, al 18. 106 See arts 3 and 4 of the Convention pour le Règlement PacifiQue des Conflits Inlernationaux. The
Convention was signcd at The Hague on Octobcr 18, 1907, and enlered ioto force 00 Jaouary 26, 1910. See (1969) 28 Vertragssammlung AA, Serie A,40-91 (Nr. A 345).
International Responsibility and Liability
party with the object of reconciling opposing c1aims and finding a formula for the
settlement of the dispute through the utilization of political pressure107•
Conciliation, on the olher hand, is characterized by the instalment of an impartial
commission of neutral members or a single eminent sole arbitrator that is to elaborate a
non-binding proposaI for resolving the dispute. Contrary to mediation, it is a typical
feature of conciliation that the third party can but rely on the persuasiveness of the
impartial and counterbalancing procedural approach and the conviction of the suggested
tenns of settlement1ϥ
International adjudication being "justice à base arbitrale"I09, il is difficult to c1early
distinguish the judicial settlement of an international dispute from arbitration. Sorne
characteristic essentials of arbitration are, however, not present to the same degree in
international adjudication. The parties' great influence on the composition of the bench
as weil as on the proceedings of the tribunal is one of the typical features of arbitration
which exist ooly rudimentarily in the judicial seulement of disputes. It is because of the
possibility to adjust the composition of the bench and the details of the proceedings to
the facts and drcumstances of a particular case that States often favour arbitration as
the more flexible way of resolving controversies. In cases where specialized technical
knowledge on the bench is required, for instance, the permanent deciding body of the
International Court of Justice will have to attempt to obtain it ad hoc or else depend on
experts' opinions. Furthermore, States may be reluctant to accept any third party
107 See Schindler, Dietrich, Die Schied'icclichtsharkcit sei! 1914. Entwickluni und heutiicr Stand, Handbuch des Vôlkerrechls, vol. V, (Stuttgart: Kohlhammer, 1938) at 138; La conciliation in~ernationalc (Paris: Rousseau et Cie, 1930) at 56; Efrcmoff, Jean, ·Organisation de la conciliation comme moyen de prévenir les guerres· (19371) 59 RdC 101-223 at 125-126. For rhe 1907 Hague Convention see supra note 106.
108 State practice, especially in Latin America and Africa, bru. almost abandoncd the distinction between mediation and conciliation by introducing Mediation by ·emment citi7.cns" and conciliation by a commission of Heads ofState. See art. 11 of the American Treaty of Pacifie SeUlement (Pact o[ BQa,ota), signed al Bogotâ on April 30, 1948, 30 UNTS 55-116. Sec also arts XX·XXVI of the Protocol of the Commission of Mediation. Conciliation and Arbitration to the Charter of the Oriani7.atjQn of AfricanJ.!!!ity, signed at Cairo on July 21,1964, (1964) 31LM 1116-1124.
109 Thus the firs! President of the P.C.IJ., Loder, Bernard Cornelius Johannes, in La différence enlre l'arbitra" international et la justice internationale. (Harlem: Tjeenk Willink, 1923) al 23.
1
International Responsibility and LiabiJity PIiC 31
seUlement, because the legal dispute bears militaI)' impact or because they intend to
excJude any effect of precedence. Finally, the respective suitability of a means of dispute
seulement depends on the extent of already developed norms of public international law
in the subject matter concernedllO• States do not desire the tribunal to have legislative
powers1H• Thus, the less legally significant or the less concise and open to interpretation
and elaboration the applicable rules are, the more attractive arbitra_.on will be.
State practice shows a marked tendency towards the settlement of disputes on a bilateral
basis. It has resuhed in a variety of bilateral engagements for the peaceful settlement of
disputes, which may cause problems of concurrent jurisdiction where muItilateral
agreements apply, too. Further elaboration of procedural techniques and refinement of
bilateral systems of dispute settlement may in effect be deleterious112•
2.1.31be International Law Commissions' Oraft Codification
2.1.3.1 Significance of the Projed
The attempt to codify the rules of international law governing the responsibility of States
for internationally wrongful acts is probably the most demanding project on the I.LC.'s
schedule so far. While aU other drafts it prepared concerned primary norms113, i. e.
liO Sec Lachs, Manfred, ·Sorne ReOections on Substance and Form in International Law", Friedman, Wolfgang, Louis Hcnkin und Oliver Lissitzyn. eds, Transnational Law in a çy"'niÏn~ Society, Essays in Honor of Philip C. Jessup (New York: Columbia University Press, 1972) 99-112 al 111.
111 See Schenk von Stauffenberg, Berthold Graf, Statut et Rè&lement de la Cour Permanente de Justice Internationale; Elements d'Interpretation, Max-Planck-Institut für auslàndisches Recht und Vôlkerrecht, Berlin (Berlin: C. Hcymann, 1934) al 212-277, particularly at 275.
112 See Mangold, Hans von, supra note 103. at 25-26. 113 On the notion of primary and secondary norms see Combacau, J., and D. AUand, ·'Primary' and
'secondary' rules in the law of State responsibilly: Catcgorizing international obligations· (1985) XVI Netberl. Y. B. Int'I L. 81-109. Primary norms impose obligations on States, wbile secondary norms determine the consequences of fai!ure to fulllil obligations estabiisbed by tbe primat')' norms. Sec Ago, Roberto, ·Second Report on Slate Responsibility", UN Doc. A/CN.4/'233, (1970 Il) Y.B.I.L.C. 177-197 al 179 para. 11. See also "Report of the International Law Commission OD tbe work of its twenty-faftb session (7 May - 13 July 1973)", (1973 Il) Y.B.I.L.C. 161-'235 at 169 para. 40. On the distinction between primat')' and secondary norms sec also Boyle, Alan E., supra note 15, al 10-11.
-
International Res,ponsibility and Liability
norms establishing ob1igations in specifie areas of interstate relations as, for instance,
the law of treaties1l4 or the law of the Seal15, a codification of State responsibiIity is to
cover the consequences of non-compliance with rules in any of these fields1l6• When
drafting a codification of primaI)' norms, specifie legal or poUtiea) circumstances can be
taken into account. In contrast to that, a draft code concerning secondary norrns1l7, i. e.
the norms dealing with the responsibility of States for acts contrary to obligations
established by primary norms, has to be abstract in order to encompass ail legal and
factuaI situations lhat may possibly arise. It is this indispensable dissociation from the
particularities of the various fields of public international law that makes the project of
codification a challenging one: on the one hand, an abstract code is necessary to ensure
its applicability to any possible event or set-up; on the otber band, the norms should still
be pragmatic.
An additional impediment to the I.Le.'s work is the lack of customary internationallaw
generating unambiguous State practice and jurisprudence with regard to a number of
crucial problems_ While the amount of obligations established by primary norms
increases at an almost inflationary rate, norms regarding their enforcement, the
seulement of disputes, and questions with respect to reparation are reJative)y scarce118•
114 See the drafl articles on lhe law of treatics, submitted to the General Assembly in 1966, (1966 Il) Y.B.I.L.C. li7-187, which were refcrred to a conference of p1cnipotentiaries that conc\uded the Vienna Convention on the Law of Treaties on May 23, 1969, (1969) 8 ILM 679-735.
US See the draft artides on the law of the l'ea, suhmitted to the General As!.embly in 1956, (1956 Il) Y.B.I.L.C. 256-1..64. The General Assembly convened the Geneva United Nations Conference on the Law of the Sca, which in 1958 adopted the Convention on the Territorial Sea and the Contiguous Zone, (1964) 516 UNTS 205-282, the Convention on the High Seas, (1963) 450 UNTS 11-167, the Convention on Fishing and Conservation of Living Resources of the High Seas, (1966) 559 UNTS 285· 342, the Convention on the Continental Shelf, (1964) 499 UNTS 311-354, and the Optinal Protocol of Signature concerning the Compulsory Seulement of Disputes, (1963) 450 UNTS 169-200.
116 See Ago, Roœrto, in a working paper prepared for the I.L.C., (196311) Y.8.1.L.C. 251-254 al 253: 'The international responsibility of the State is a situation resulling not only from the violation of particular international obligations, but Crom the infringemeot of any international obligation, whether established by rules covcring a specifie matter or by other rules,"
117 On tbe distinction belween primary and secondary norms sec supra note 113. 118 See Simma, Bruno, "Grundfragcn der Slaatenveranlwortlichkeit in der Arbeit der luternational Law
Commission" (1986) 24 ArchVR 357-407 at 358.
,
J
International Responsibility and Liability Puen
ln spite of the topic's undeniable significance, the draft articles provisionally adopted by
the I.L.C. in 1980 have unfortunately hardly attracted scholarly attention, [u less
constructive criticism.
2.1.3.2 The Commission's Approach to the Topic
At its first session in 1949, the I.Le. drew up a provisional list of fourteen topies
considered to be suitable for codification; among them was the question of State
responsibility1l9. Between 1955 and 1961, Garda Amador, the first Special Rapporteur
to the I.L.C. appointed for the topiCl20, submitted six reports, dealing exc1usively with the
responsibility of a State for injuries caused in its territory to the person or property of
aliens121• This limited approach, which reflects the traditional conception of the topicl22,
particularly among British scholars, was repeateàJy criticized when discussed in the
I.L.C.l23 and in the Sixth Committeel24.ln response, Garda Amador left the Commission
and the I.L.c. took up the subject ex novo, determining first of aIl how it should be
approached.
In 1963, the I.L.e. approved an outline programme of workl25 proposed by the Sub
Committee on State Responsibilityl26, which had been establisbed at its previous
119 See (1949) Y.B.I.L.C. 281, para. 16. 120 Garda Amador was appointed Special Rapporteur in 1955; (1955 1) Y.B.I.L.C. 190 para. l 121 first Report: (195611) Y.B.I.L.C. 173-231; Second Report: (195711) Y.B.I.L.C. 104-130; Third Report:
(195811) Y.B.I.L.C. 47-73; Fourth Report: (1959 II) Y.B.I.L.C. 1-36; Fifth Report: (1969 Il) Y.B.I.L.C. 41-68; Sixth Report: (1961 Il) Y.B.I.L.C. 1-54.
122 See Brownlic, lan, System of the Law of Nations, S'ale Responsibility, Part l, supra note 52, at 8-9. 12.1 See, for example, EI-Erian, Abdullah (19571) Y.B.I.L.C.161-162 al 161, para. 35. 124 See UNGAOR, Sixteenth Session, Annexes, Agenda Item 70, UN Doc A/S036, para. 29. 12.5 See the "Report of the International Law Commission on the wQrk of its fafteenth Session (6 May· 12
July 19(3)", UN Doc. A/5509, (1963 II) Y.B.I.L.C. 187-300 al 224 para. 54. 126 Sec Ago's report as approved by the Sub-Committee, UN Doc. A/CN.4/152 of January 16, 1963, (1963
Il) Y.B.I.L.C. 227-228 al 228.
1
Ipternational Responsibilit)' and LiabililY
session127• The programme, confirmed and amended in 1967 and 1969128, can be
summarized as follows:
- The Commission will first deal with the international responsibility of States.
- In codifying the norms on the international responsibility of States, the Commission
will restrict itself to the elaboration on secondary norms.
- The topic of the international responsibility of States will be subdivided. First the
Commission will attempt to codify the nonns concerning the responsibility of States
for intemationally WTongful acts. The question of international liability for injurious
consequences arising out of acts not prohibited by internationallaw will be covered by
a separate draft convention to be prepared in due course.
- The work on the draft concerning State responsibility for internationally wrongful acts
will take place in three phases devoted to the following aspects of the topie:
- the origin of State responsibility, i. e. upon which grounds and under which
circumstances aState may be held to have committed an internationally wrongful act
(Part 1),
- the legal consequences of international responsibility, i. e. the content, forms and
degrees of responsibility (Part II),
- and, finaI1y, the problems with regard to the irnplementation of the norms as weil as
the settlement of disputes, i. e. the tertiary norms (Part 111)129.
The same year, the Commission appointed Roberto Ago as Special Rapporteur for Part
1 of the topie.
127 See (1962 1) Y.B.J.L.C. 45 and "Report of the International Law Commisc;i~') on the work of ilS fourteenth session (24 April- 29 June 1962)", UN Doc. AIS}JY.}, (196211) Y.B.I.L.C.157-195 at 189, para. 47.
128 See the "Report of the International Law Commission on the work of ilS nineleenth session (8 May - 14 July 1967)", UN Dots A/67fYJ/Rev. 1 and Rev. I/Corr. 1, (1967 JI) Y.B.I.L.C. 343-402 at 368 para. 42, and the "Report of the International Law Commission on the work of ils twenty-firsl session (2 June - 8 August 1969)", UN Doc. A!7610/Rev. 1, (196911) Y.B.J.L.C. 203-237 al 233.
129 See the "Report of the International Law Commission on the work of ils twcnty-sevenlh session (5 May -25 July 1975t, UN Doc. A/lOOlO/Rev. l, (1975 11) Y.B.I.L.C. 47-187 at 56 para. 44. The final dea.sion whether or not the draft should encompass tcrtiary norms was postponcd until tbe complction of PartI and Part II.
1
1
International Responsjbility and Liabi1jty
Between 1963 and 1980, Roberto Ago, Special Rapporteur on Part 1 of the draft on
State responsibility for intemationally wrongful acts, suhmitted eight reports, which the
Commission considered and discussed in detai1130• In 1980, after seventeen years of
work, Part 1 was provisionally adopted by the I.LC. on first readingl3l•
ln 1979, WiUem Riphagen was appointed Special Rapporteur for Parts II and III, the
sections on the content, form and degrees of State responsibility and the "mise en
oeuvre·132. Riphagen submitted seven reports, which revealed apparently
insurmountable obstacles to an abstract and nevertheless practically workable
codification133• Gaetano Aranjo-Ruiz, who was appointed Special Rapporteur in 1987,
has prepared two reports so far. Due to lack of time, oruy the first, preliminary one, has
been considered by the Commission. As of today, the first five articles of Part II have
been adopted on first readingl34• Articles 6 to 16 of Part II and articles 1 to 5 of Part III
were referred to the Drafting Committee in 1985 and 1986 respectivelyl3S.
130 First Report: (1969 II) Y.B.I.L.C. 125-156; Second Report: (1970 Il) Y.B I.L.C. 177-197; Third Report: (197111 part 1) Y.B.I.L.C. 199-274; Fourlh Report: (1972 II) Y.B.I.L.C. 71-160; Fifth Report: (1976 II part 1) Y.B.I.L.C. 3-54; Sixth Report: (1977 Il partI) Y.B.I.L.C. 3-43; Sevenlh Report: (197811 part 1) Y.B.l.L.C. 31-60; Eighlh Report: (1979 Il partI) Y.B.I.L.C. 3-66; Addendum to the Eighlb Report: (1980 Il partI) Y.B.I.L.C. 13-70.
131 'Draft Articles on State Responsibility", see supra note 30. 132 See the "Report of the International Law Commission on lhe work of ilS thirty-frrst session (14 May - 3
August 1979)", UN Doc. A/34/lO, (1979 JI part 2) Y.8.1.L.C. al 90, paras 73 and 197. 133 Preliminary Report: (1980 JI partI) Y.B.I.L.C. 107-129 (UN Doc. AjCN.4/330),
Second Report: (1981 II partI) Y.B.I.L.C. 79-101 (UN Doc. A/CN.4/334), Third Report: (1982 Il part 1) Y.B.I.L.C. 22-50 (UN Doc. A/CN.4/354), Fourth Report: (1983 Il part 1) Y.B.I.L.C. 3-24 (UN Doc. A/CN.4/366 and Add. 1), Fifth Report: (198411 partI) Y.B.I.L.C. 1-4 (UN Doc. A/CN.4/38lJ), Sixth Report: (1985 II partI) Y.B.I.L.C. 3-19 (UN Doc. A/CN.4/389), Seventh Report (198611 partI) Y.B.I.L.C. 1-19 (UN Doc. A/CN.4/397 and Add. 1).
134 Arts Ito 3 and 5 were provisionaUy adopted at the 1806th meeting; see (19831) Y.B.I.L.C. 298-299, see also (198311 part 2) Y.B.I.L.C. 20 para. 106. A newart. 5 was provisionaUy adopted at the 1930th meeting, see (1985 1) Y.B.I.L.C. 314 para. 26. As a result, consequentiaJ modifications 10 draft articles provisionally adopted at the I.L.C.'s thirty-fifth session had to be adopted, too. For the texts of the five artides as provisionally adopted in 1985 sec the "Report of the International Law Commission on the work of its thirty-seventh session (6 May - 26 July 1985)", UN Doc. A/40/10, (1985 II part 2) Y.B.J.L.C. 24-25.
Ils See Report of the International Law Commission on the worle of its thirty-seventh session, UN Doc. A/40/lO, (1985 II part 2) Y.8.I.L.C. 24 para. 162, and Report of the International Law Commission on the work of ils lhirly-eighth session, UN Doc. A/41/10, (198611 part 2) Y.B.I.L.C. at 38 para. 63.
lPillPationa) Responsibilit,y and Liability
2.1.3.3 The Origin of State Responsibility
The thirty-five draft articles constituting Part 1 are arranged in five chapters:
- General Principles
- The Act of the State under International Law
- The Breach of an International Obligation
Pqt36
- The Implication of a State in the Internationally Wrongfut Act of Another State
- Circumstances Precluding WrongfuJness.
2.1.3.3.1 General Principles
The first four articles reflecting the Commission's basic decisions on a number of
controversial issues are of fundamental significance for the codification project as a
whole.
The scope of the draft is determined as to encompass the secondary norms of
international lawl36 or, in the words of Roberto Ago, as to deal with "the whole of
responsibility and nothing but responsibility"137.
As a general principle, every State having the capacity for responsibility under
intemationallaw is to be responsible for any violation of international law attributable
to itl38•
136 For the texts of articles 1 to 4 and tbe I.L.C.'s commenlaries thc:reto sec (197311) Y.B.I.L.C. 173-176, 176-179, 179-184, and 184-188 respectively.
137 See Ago, Roberto, supra note 116. 138 Art. 3 of the draft, see supra note 136.
1
1
International Responsibility and Liability Plie 37
According to article 3, "there is an internationally wrongful act when: (a) a conduet
consisting of an action or omission is attributable to the State under internationallaw;
and (b) that conduet constitutes a breach of an international obligation of the State",
The first of these two conditions is described as the "subjective" element of the wrongful
act as it concerns the acting subjeet's conduet; the second condition is said ta be the
"objective" element as il only concerns the rule of law whieh has been violated.
The definition of an intemationally wrongful aet reveals the Commü: .on's standpoint on
two important questions with regard to the prerequisites of State responsibility which
are subject to seemingly infinite debates and arguments among international lawyers:
Since only imputability and the breach of an international obligation are mentioned as
elements of such an act, neither fault l39 nor the occurrence of damage14IJ are held to be
necessary for State responsibility to arise unless they form pan of the obligation
139 On the controversy concerning Cault as an clement of an intemationally wrongful aet see supra 2.1.2.3. 140 Acoording to the I.L.C., iC damage was to he a constitutive element of an intemationally wrongful aet,
the term would have to he defined in sucb a way as to alJow any violation of an international obligation towards anolher Stale 10 he classiJied as damage (so-calJed "Iegal damage"). Sec (1973 Il) Y.B.I.L.C. 183. On the debate with regard 10 damage sec supra note 21.
International Responsibility and liabilily
violated141• Both aspects may. however, at a later stage be decisive factors for the
determination of the degree of responsibility and the amount of reparation due142•
2.1.3.3.2 The Act of the State under International Law
Article 3 of the draft states the general principle that international responsibility only
arises when the act in question is attributable to the State concerned. The eleven articles
contained in Chapter Il are dedicated to the elaboration on this subjective element of an
intemationally wrongful act143•
141 See Riphagen, Willem, Seventh Report on State Responsibility, UN Doc. A/CN.4/397 and Con. 1 and Corr.2 and Add. 1 and Add. l, Con. 1, (198611) part 1 Y.B.I.L.C. 1-19. See also Ago, Roberto, (19781) Y.B.I.l.C. 9-10. In Zemanek's and Simma's view, the 1.L.C.'s understanding of the role of fault docs Dol refleet public internationallaw and has to he regarded as de lel:c fcrenda. They argue that contrary lo the categorÎzation underlying the I.L.C.'s draft the standard of due diligence is nol containcd in the primary norms of present internationallaw, but is seen as bclonging to the sccondary rules. Ouoting the I.L.C.'s eommentary on art. 23 of tbe draft, the afore-mcntioned authors bold the view that the I.L.C. pays but lip-service to the concept of objective responsibility and has inlroduccd subjective clements at various points in the drafl, especially in the section conccrning circumstanecs prccluding wrongfulncss (Chapt cr V, arts 29 to 35), However, not only can the quotation from the eommcntary on art. 23 be interpreled as 10 bc an elaboration on the indispensabilily of an adcquatc causal nexus between the damage that has occurrcd and the Statc's conduet, but also can tbe provisions in Chapter V he regarded as dealing with the problem of foreseeability. Tbus, the drafl is consistent with the l.L.C:s adhelence 10 the concept of objective responsibility. For Simma's and Zemanek's view sec Simma, Bruno, supra note 118, at 367-370; Zcmanek, Karl, ·Sehuld- und Erfolgshaftung im Entwur( der Volkerrechtskommission über Staatenverantwortlichkcit, zugleich Bcmc'rkungen zum Proze8 der Kodifikalion im Rahmen der VN", Diez, Emanue~ Jean Monnier, Jorg P. Muller and others, cds, Festsehrift (ur Rudolf Bindschedler (Bern: Stampn~ 1980) 315-331 at 330. Their argument is contendcd by Gùndling, Lothar, "Verantwortliehkeil der Staalcn fur grcD7uberschreilcnde Umweltbeeintrachtigungen" (1985) 45 ZaôRV 265-292 al 279.
142 Sec Riphagen, Willem. Third Report on State Responsibility, UN Doc. A/CN.4/354 and Add. 1 and 2, (1982 Il) partI Y.B.I.L.C. 22-50 at32, para. 68, and al 46.
143 For the lexts of articles 5 and 6 and the I.L.C:s commentaries thereto sec: (197311) Y.B.I.L.C. 191-193 and 193-198 respectively. For the teXls of articles 7,8 and 9 and tbe I.L.C.'s commenlarics thcrelo sec (1974 11) part 1 Y.B.I.L.C. 2n-283, 283-286 and 286-290 respectively. For the texts of articles 10 to 15 and the I.L.C.'s commentaries thereto see (1975 Il) Y.B.I.L.C. 61-70, 70-83,83-86,87-91,91-99 and 99-106 respeclively.
1
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International Responsibilit)' and Liability Pge39
In conformity with the rules that have developed in customary international lawl44, the
draft provides for the imputability of the conduet of any State organ having this quality
under domestic law14S and of any entity de iure or de facto empowered to exercise
elements of governmental authority or to act on behalf of the Statel46, even if, in the
particular ..::ase, the organ or entity exceeded its competence according to internallaw or
contravened instructions concerning its aetivities, i. e. even if it aeted ultra vires147•
Contrary to a proposaI made by the Special Rapporteurl48, there is no provision in the
draft dealing with the exceptional case that the aet in question is, by its very nature,
wholly foreign to the specifie funetions of the organ or entity or that its lack of
competence is manifest. Such circumstances should, in the Commission's view, not affect
the imputability of a conduct to aState, because the victim would generally not be in a
position to avoid the occurrence of damage, even if it had knowledge of them149•
Articles Il to 15 codify established rules of customary international law with regard to
the limits of the imputability of acts to aState. Thus, aState is responsible for the
conduet of private individuals, organs of another State or organs of an international
organization only if its own organs can be reproached of a wrongful conduet as, for
instance, a failure to act with due diligence in the prosecution or punishment of
responsible individualsl50• As to the conduet of organs of an insurrectional movement,
article 14 of the draft lays down rules analogous to those concerning the conduct of
private individu aIs and organs of other States or international organizations: unless State
144 Sec Christenson, Cordon A., "The Doclrine of Attribution in Stale Responsibility", Lillich, Richard B., ed., Intcrnational Law of Slate Rcsponsibility for Injuries 10 Aliem (Charlotteville: University Press of Virginia, 1983) 321-360; Verdross, Alfred and Bruno Simma, supra note 35, al 855-856. Compare also supra 2.1.2.2.
145 Sce arts 5 and 6, supra note 143. 146 See arts 7 to 9, supra note 143. 147 See art. 10, supra nole 143. 148 The proposed art. 10 para. 2 read: "However, such condud is nol considered 10 he an aet of the Stale if,
by its v\~ry nature, il was wholly foreign to the specifie funetions of the organ or if, even from other aspects, the organ's lack of competence was manifest.", see "Fourth Report on State Responsibility" by Roberto Ago, UN Doc. AjCN.4/264 and Add. l, (197211) Y.B.I.L.C. 71-160 al 95 para. 60.
149 Compare the I.L.C.'s commenlary to arl. 10, supra note 143, especially at 69 para. 25, where reference is made to the case Thomas H, YQumans (u'SA.) v, United Mexican States, sec supra noIe 36.
150 See art.s 11 to 13, supra nole 143.
1
International Responsibility and Liability Pilic40
organs have aeted wrongfully, too, such a eonduet is not attributable to a StaletS1•
Finally, according to article 15, aets of an insurrectional movement are to be considered
as "acts of the State", if the movement sueceeds in beeoming the new government or if
the actions result in the formation of a new State in part of the territory of a pre-existing
State152•
The draft articles eoncerning the "aet of State" can be said to refleet customary public
inLemational lawtS3• The draft does not give an answer to the question when
revolutionary or secessional activities of private individuals can be qualified as
insurrection al movements under articles 14 and 15, nor does it taekle the problem witt.
regard to the distinction between national liberation fronts and other insurrectional
movements.
2.1.3.3.3 The 8reach or an International Obligation
In Chapter III of the draft, the focus is on the objective elements of an internationally
wrongful aet. DetaiJed and complicated norms determine when an international
obligation has been breached, what the various types of internationally wrongful acts are
and how they can be distinguishedl54•
A breach of an international obligation is defined as any act of aState not in conformity
with what is required of it by that obligation, provided the latter is in force for the State
151 See art. 14, supra note 143. 152 See art. 14, supra noie 143. 153 Compare Simma, Bruno, supra note 118, at 373. 154 For the lexts of articles 16 to 19 and the I.L.C.'s commentaries thereto see (1976 Il par(2) Y.B.I.L.C.
78-79, 79-87,87-95 and 95-122 respectivcly. For the texts of articles 20,21 and 22 and the I.L.C.'s commentaries lherelo see (197711 pari 2) Y.B.I.L.C. 11-18, 18-30 and 30 to 50 respcctively. For tbe lexts of articles 23 to 26 and the I.L.C.'s commentaries therelo sec (197811 part 2) Y.B.I.L.C. 81-89, 89· 97 and 97-98 respcctively.
1
J
International Responsibility and Liability Pilae 41
in question lSS• Whether the obligation is of customary, conventional or other origin is of
no relevance to the international responsibiHty arising from an internationally wrongful
actl56•
Rather than setting up categories of primary norms according to the subject matter dealt
with, the draft provides systematic parameters which allow for an analysis of any such
norm, focussing on elements that may influence the arisaI as well as the form or degree
of responsibility in the evt!nt of a wrongful act. Thus, a distinction is made between, on
the one hand, obligations requiring the achievement of a specified result or the
prevention of a given event1S7, and, on the other hand, obligations requiring the adoption
of a particular course of conductl58• Time, too, is a factor used to differentiate and
categorize various types of wrongful acts: while sorne acts do not extend in time, others
may be of a certain duration. Among the Jatter, continuing acts can be distinguished
from composite and complex actsl59•
155 See arts 16 and 18, supra note 154. On art. 16, see Riede~ Eibe H., -Die Tatigkeit der International Law Commission im Jabre 1971" (1978) 21 Germ. Y.B.lnt'1 L. 439-460 at 445-446. On art.lS, see Kar~ Wolfram, ~be Time Factor in the Law of State Responsibility", Spinedi, Marina and Bruno Simma, eds, Unit cd Nations Codification of State Responsibility (New York: Ocean a, 1981) 95-114 at 106-114; Riedcl, Eibc H., "Die Tatigkeit der International Law Commission im Jahre 1971" (1978) 21 Germ. Y.B.lnt'l L. 439-460 al 446-448; SChUlZ, Hans Joachim, "Die Tatigkeit der International Law Commission im Jahre 1978" (1979) 22 Germ. Y.B. Int'I L. 414-433 at 424.
156 See art. 17, supra note 154. 157 See arts 21 and 23, supra note 154. 158 Sec art. 20, supra note 154. On this distinction sec also Combacau, Jean, "Obligations de résultat et
obligations de comportement: Quelques questions et pas de réponse" - Mélanees offerts à Paul Reuter - Le droit international: unité et diversité (Paris: Pédone, 1981) 181-204.
159 See arts 24 to 26, supra note 154. See also Karl, Wolfram, supra note 155, at 95-106.
-,
International Responsibi1ity and Liability PAie 42
The most well-known and the most controversial provision in the I.LC.'s draft is article
19, introducing the dichotomy of international crimes and international delictsl60•
According to the abstract description chosen to define the obligation the infringement of
which wiU cOllstitute an international crime161 as weil as according to the list of
examples162, an international crime will typically be the violation of a norm of jus ço~ens
with er~a Qmn~ applicability163. However, not each and every act not in conformity with
such a norm amounts to an international crime. lt is but the "serious breach" that incurs
the legal consequences of an international crimel64•
The relevance of the distinction between international crimes and international delicls
can on]y lie in a difference with regard to the legal consequences. Hitherto, the I.Le.
has not completed its work on Part Il of the draft on State responsibility, which is to
cover the "content, forms and degrees" of international responsibili tyl6S. It would thus be
premature to elaborate on the significance of the dichotorny introduced by article 19.
160 See Mohr, Manfred, "The I.L.C.'s Distinction between 'International Crimes' and 'International Oeliets' and its Implications", Spi ne di, Marina and Bruno Sim ma, eds, Uniled Nations CQdifiçatiQn of Stélte Responsibility (Ncw York: Oecana, 1987) 115-141. Sec also Weiler, Joseph H. H., Antonio Cassese and Marina Spincdi, cds, International Crimes of States 1:1 A Critiç,tl Analysi5 of the J.L,C,'s Oraft Article 19 on State Re<.ponc;,ihility (Berlin: de Gruytcr, 1989); Marck, Krystyna, "Criminali/jng Stale Responsibility" (1978/79) 14 Rév. Bel. Dr. Int'I 460-485; Grecn, Leslie c., "New Trends in International Criminal Law" (1981) 11 Isr. Y. B. Hum. Rts. 9-40, al 24-40; Gilbert, Geoff, "The Criminal Responsibility of States· (1990) 39 Int" & Comp L Q. 345-369, Rauschning, Dietrich, ·Verantwortlichkeit der Staaten fur volkcrrechtswidriges Verhalten", Rau'ichning, Dietrich and Albrecht Randcl7hofer, Staatcnvcrantwortlichkcit (Rco;ronc,ihility of States), Bcrichte der deutsehen Gesellscbaft fur Volkerrccht, I-!eft 24 (Heidelberg: C.F. Muller, 1984) 7-31, al 2h-27.
161 See art. 19 para. 2, supra not~ 154. 162 See art. 19 para. 3, supra note 154. The four sphcres mentioncd wcrc dcemed those corresponding 10
the pursuit of the four fundamental aims of the maintenance of international pcacc and sceurity, the safeguarding of the right of self-determination of pcoplcs, the safcguarding of the human bcing, and the preservation of the human environment. See the I.L.C.'s commentary to art. 19, supra note 154 at 120, para. 67.
163 The violation of a norm from which derogation is pcrmitted may also he c1assified ac; an international crime, if the obligation established by the norm is so essential for the protection of fundamental interests of the international communily that the internationally wrongful acl in question a~'iumes proportions to warrant it bcing characterizcd as an international crime. However, obligations of sueh importance will typically he established by pcremptory norms. Compare the I.L.C.'s commentary 10 arl. 19, supra note 154 al 119-120, para. 62.
164 See art. 19 para. 3lils (a) to (d), supra note 154. 165 See supra 2.1.2.4.
------- -----------------------------------------------------
International Responsibili1Y and Liability Pa&e 43
2.1.3.3.4 The Implication of a State in the Internationally Wrongful Act of Another State
Under article 27 of the Commission's draft, aState that aids or assists another State
committing an internationally wrongfuJ act can be held responsible even if, taken alone,
the aid or assistance would not constitute a violation of an international obligationl66•
This is note-worthy in 50 far as the applicability of the provision is not limited to
international crimes. It reflects a structural development in public international law
away from strictJy synalJagmatic or biJateral relations towards the acknowledgement of
obligations er&a omnes.
In contrast to criminal law, which penalizes the incitement of another individual to
commit a crime, such participation in another State's wrongdoing is not considered as an
internationally wrongful act, since "[t]he decision of a sovereign State to adopt a certain
course of conduct is certainly its own decision, even if it has received suggestions and
advice on the matter from another State, which it was at liberty not to follow"167.
Only in cases where aState has assumed control over another State, which is thus
deprived of the afore-mentioned sovereign liberty, shaH it be responsible for
internationally wrongful acts committed by the other Statel68• This makes an exception
to the general rule contained in article 1 of the draft that aState is responsible but for its
own breaches of international obligations.
166 For the lext of article 27 and lhe I.L.C.'s commentary lherelo see (197811 part 2) Y.B.I.L.C. 99-105. On aid or assislance by a Slale 10 another State for the commission of an internationally wrongful ad sec Klein, Eckhard, -Beihilfc zum Vblkerrechlsdclikt-, Münch, Ingo von, cd., Staatsrecht - Vôlkerrecht -EurQparecht, Festschrift fur Hans-Jürgen Schlochauer (Berlin: de Gruyter, 1981) 425-438.
167 See the I.L.C.'s commentary to art. 27, supra note 166, atl0, para. 6. 168 Sec article 28. For the text and the I.L.C.'s commenlary therelo see (197911 part 2) Y.B.I.L.C. 94-106.
International Responsibility and Liability PiU!c44
2.1.3.3.5 Circumstances Precluding Wrongfulness
Consent, countermeasures, force majeure and fortuitous event, distress, state of
necessity and self-defence are the circumstances considered in Chapter V of the draft 169.
The essential feature they have in common is that of rendering definitively or
temporarily inoperative the international obligation in respect of which a breach is
alleged. For as long as the said exceptional circumstances continue to prevail, the
obligation is considered not to be binding on aState any rnorel70•
Due to the Commission's basic decision to adhere to the concept of objective
responsibility17l, there can be no justification for a WTongful act on the ground that the
State in question was not at fault. This did, however, not prevent the I.L.C. from
recognizing sorne classical circumstances precluding wrongfulness that have subjective
elements. Distress, state of necessity and self-defence are such conditions under which
an act of aState not in conformity with a norm of internationallaw usually in force for it
May not be wrongful l72•
It has been argued that the inclusion of circumstances precluding wrongfulness that are
not purely objective in nature reveals that fault is an indispensable element of an
intemationally wrongful act. Only lip-service was being paid to the concept of objective
169 See articles 29 to 35. For the texts of articles 29 to 32 and the I.L.C.'s commcnlaries lhcrclo sec (1979 Il part 2) Y.B.I.L.C. 109-115, 115-122, 122-133, and 133-136 respectively. For the lexts of articles 33to 35 and the I.L.C.'s commcntarics thcrcto sec (1980 Il part 2) Y.B.I.L.C. 34-52, 52-61, and 61-62 respectively. On Chapler V of the draft see Jagola, S. P., "SI ale Responsibilily: circumslances precluding wrongfulness" (1985) XVI Nethcrl. Y. B. Int'I L. 249-277. See aIso Salmon, Jean, "Les Circonstances excluant l'illicéité", Zcmanek, Karl and Jean Salmon, Respon5abilitt Internationale (Paris: Pédone, 1987) 89-225.
170 See the I.L.C.'s commentary 10 Chapter V of the draft, (197911 part 2) Y.B.I.L.C. 106-109 at 108-109, paras 9 and 10.
171 See supra 2.1.3.3.1. 172 See arts 32 to 34, supra Dote 169.
1
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International Responsibility and Liability Pue 45
responsibility, since the notion of fault was sneaked back into the system in disguise via
the institution of circumstances prec1uding wrongfulness173•
Such an allegation is not the only logical solution to what may appear as an
inconsistency. As in domestic civillaw, an internationally wrongful act has subjective and
objective elements. The former include the attribution of a particular act to a State as
weil as the statement that in the circumstances given the State concerned was under an
international obligation not to assume the course of conduct it chose to assume. Such a
statement can only resuIt from an analysis of the situation at the time the wrongful act
occurred. The scrutiny will have to inc1ude factors such as the political and economic
conditions prevailing in the State that committcd the act as weIl as the relation between
the State and any possible victim. Examining such circumstances, present only for one
particular State at one particular moment in time, means to consider elements subjective
in nature. They are distinct from the question of fault and their inclusion is consistent
with the adherence to the concept of objective responsibility.
Among the circumstanccs precluding wrongfulness set out in the 1.L.C.'s draft those
focussing on the State that committed the act can be distinguished from those somewhat
dependent on the course of conduct assumed by aState affected: Force majeure,
fortuitous event, distress and state of necessity may justify an otherwise wrongful act
irrespective of any action taken by the State the rights of which are infringed by the act;
consent, countermeasures and self-help, on the other hand, are circumstances
occasioned by such action or created under the contribution of the injured State174•
173 Sec Simma, Bruno, supra note 118, al 369-370 and al 382. Similarly, Zemanck., Kar~ -La Responsabilité Internationale des Etats pour Faits Internationalement Illicites, ainsi que pour Faits Intcrnationalcmcnt Licites·, Zcmanck, Karl and Jean Salmon, Responsabilité InternatiQna" (Paris: Pédooe, 1987) 1-88 at 38-39.
174 Scc Simma, Bruno, supra note 118, al 381.
1
1"'.
International Responsibility and Liability
Self-defence and countermeasures, such as reprisai as well as measures of reaction
applied on the basis of a decision taken by an international organization175, form a
category by themselves in so far as they are the only circumstances postulating an
internationally wrongful act committed by the State against which they are taken176•
Unlike the other conditions, they do not preclude the wrongfulness of the initial act, but
rather that of an act committed in response to the infringement of a right. It is for this
reason that articles 30 and 34 are not affected by the reseIVation concerning
compensation for damage set out in article 35177• The provision contemplates the
possibility of imposing on the author of the act an obligation to make compensation
despite the fact that wrongfulness had been precluded by one of the circumstances
defined in articles 29, 31, 32 and 33 ofChapter V.
2.1.3.4 The Content, Forms and Degrees or State ResponsibHity; The Implementation or
the Norms and the Seulement or Disputes
Special Rapporteur Riphagen had submitted three reports and prepared two sets of
draft articlesl78; when in 1983 the Commission provisionally adopted articles 1 to 3 and 5
of Part II as proposed by the Drafting Committeel79• The brief discussion preceding the
175 The term 'counlermeasures" refers to cases in which the ad of a State in question is a rcactive Incasurc applied directly and independently by the injured State against the State which has committcd an internationally wrongful act againsl il, as well as to cases in which the acl of a Slate is a rcact; ':' measure applied on the basis of a decision taken by a competent international organÏ1.alion which has eDtrusted the application of that measure to the injure(,l Stale itself, to another State, to a number of States or to ail the member State,> of the organi7.ation. See the 1.L.c.'s commenlary to art. JO, supra note 169, at 121, paras 21 and 22.
176 00 arts 30 and 33 of the draft see Allar.d, Denis, "International responsibility and !>anctions: Selfdefencc and countermeasurcs in the I.L.C.'s codification of rules governing international responsibility", and Malanczuk, Peler, ·Countermeasures and sclf-dcfence as circumslanccs prccludmg wrongfulncss in the International Law Commissions's draft articles on Stale responsibilily", both articles in Spinedi, Marina and Bruno Sim ma, II nited Nations Codifiçation of Slale Responsibility (New York: Ocean a, 1987) 143-185 and 197-286 respectively.
177 See art. 35 ef the draft, supra Dole 169. 178 Preliminary Report, Second and Third Report, see supra note 133. 179 See supra note 134.
1
1
Internatjonal Responsibility and Liability Pue 47
adoption began with the Chairman's introductory remark that the Commission would
have an opportunity to discuss the articles once more in second reading at a future
session, when they would be referred to the Drafting Committee againl80. A glance at
the opinions then expressed by the members of the Commission181 shows, why reminding
the Commission of this fact was necessary: the draft articles in their present form are by
far not a product of consensus within the Commission. They are but a rudimentary basis
for future work, a draft in its embryonic stage. This is also true of article 5, which was
adopted on first reading in 1985182•
The first article of Part II as provisionally adopted by the Commission is intended to be
a link between Part 1 and Part Il of the draft: TIle international responsibility of aState
pursuant to Part 1 entails legal consequences as set out in Part 11183•
The following three articles delimit the scope and applicability of Part Il. If other rules
of ïnternational law relating specifically to the intemationally wrongful act in question
exist or if rules of customary international law are applicable, those shaH continue to
govern the legal consequences. They lihall, however, just as the provisions set out in Part
Il, be subject to the maintenance of international peace and security.
Article 5 gives an elaborate definition of the term "injured State" based on the various
legal sources from which a right infringed by an internationaJJy wrongful act may stem.
As to articles 6 10 16 of Part Il and artides 1 to 5 of Part III, which were referred to the
Drafting Committee in 1985 and 1986 respectivelyl84, any scrutiny and discussion
appears to be premature at the present stage.
The first two reports submitted by the new Special Rapporteur Arango-RuizlBS as weIl as
the consideration of his preliminary reportl86 have already revealed fundamentaI
180 See Laurel B. Francis at the 1806th meeting. (19831) Y.B.I.L.C. at 296, para. 29. 181 ( 19831) Y.B.I.L.C. 295-298. 182 See supra note 134. 183 See Report of the International Law Commission on the work of its thirty-fd'th session (3 May - 22 July
1983), UN Doc. A/38/10, (198311 part 2) Y.B.I.L.C. 42 para. 133 .. 184 See supra note 134. lBS S ce supra 2.1.3.2. 186 See Report of the International Law Commission on the work of its forty-farst session, UNGAOR
Forty-Fourth Session, Suppl. No. 10, UN Doc. A/44/10 al 188-219.
1
International Responsibility and Liability Paae 48
dissents among the members of the Commission with regard to material and procedllra}
questions187• The afore-mentioned articles are Iikely to undergo substantial alterations in
the Drafting Committee and il seems doubtful that lbey will eVf!r be adopted in anything
resembling their present form.
2.2 The Concept or Liability Cor Risk
2.2.1 The Origin ~r the Concept
Sorne activilies will, even when carried out properly and with due diligence, exact a high
to11 of Iife, Iimb and property. Society may adopt one of three possible cour~,es of
conduct to deal with this situation. It may proscribe the activity altogether or it may
choose to incur the danger of the enterprise for the sake of ils social utility, but subject it
to rules or conditions concerning the manner in which il is being carried on. Finally, il
m~y decide to tolerate the activity on the condition that il pay Ils way regardless of how
carefully or carelessly it was carried out. This is the solution of the concept of strict
hability as developed in common lawl88, and other municipallegal systemsl89
• Liability is
187 See supra note 186. The contents of art ides 6 and 7, the topical delimination of Parts Il and III, the meaning of "restitution in kind" and the necessity of a distinction between the legal consequences of international delicts on the one band and international crimes on the other band were tbe focal points of a c.onlroversial discussion al the Commission's 1989 session.
188 The concept was fusl applied in John R)'lands and Jih" Horroks v, Thomas Fletcher. (1868) L. R. 3 H. L. 330-342. On the concept of strict liability in common law sec Fleming, John G., The Law of Torts, 6th cd. (Sydney: The Law Book Company, 1983) al 300-3n, especially at 300-319.
International Responsibility and Liability P;aae49
imposed for causation rather than unJawful conduct or fau1tl90• The defendant is held
Iiable for the inevitable consequences of a dangerous activity that could be stigmatised
as negligent on account of its foreseeably detrimental potentialities, were it not for the
fact that its generally beneficial character requires its being tolerated in the public
interest. Thus, the hall mark of strict liability is that it is imposed on lawful, not
reprehensible activities. They entait extraordinary risks to others, either in the
seriousness or the frequency of harm threatened. Therefore, permission ta conduct such
an activity is made conditional191 on its absorbing the costs of the accidents it causes, as
an appropriate item of its overheadl92•
In the past few decades, the rapid advancement of science and technology has increased
man's power over nature in a spectacular degree and bas revolutionized living
conditions. Developments like the harnessing of nuc1ear energy, the conquest of space,
189 See, for example, art. 454 of the Soviet Civil Code, which provides for liability for harm caused by", source of increased danger~. Exoneration shall be granted if the owner or user of the dangerous source can prove the decisive role of the victim's own fault or irresistable force as the actual cause of the barmfuJ consequences. The last mode of exoneration is, bowever, not available to air transport enterprises in the event of harm bcing caused to a passenger's liCe or health during a fligbt. Compare loffe, OIimpiad S., Soviet Ci~ (Boston: Martinus Nijboff, 1988) al 310-311. See also art. 1385 of the Bc1gian Code Civil. Il provides for the liability of the owner or user in the evcnt of damage caused by an animal, regardless of whether it is under bis conti"ol, or whether it escapcd, See Servais, Jean and E. Mcchellynck, eds, Codes Bel&es, voU (Bruxelles: Emile Bruylant, 1989). Compare arts 1929 and 1932 of the Mexican Codigo Civil. The former provides for the liability of the owner of an animal that caused damage. The latter prescribes liability for explosions, gas, conlageous material and contaminated water. See CodiKO Civil para el Djstrito FederaL 57th ed. (Mexico: Porrua, 1989) al 346.
190 This was already the case in early common law, a1though for otber reasons. Damages were offered primarily to dened tbe aggrieved individual from resorting to priviate vengeance. Sec Holmes, Oliver WendeU Jr., The Common Law (Boston: Little, Brown, and Company, 1881) at 2-34.
191 See Robert E. Keeton, "Conditional Fault in the Law of Torts" (1959) 72 Harv. L. Rev. 401-444,1inking strict liability with the "incomplele privilege" as described in Vincent rI al. v. Lake Erie Transportation Ql~. 124 N. W. 221-222.
192 ln so far as the accident costs might affect the competitive position of the activity, the principle may also be justilied on the grounds of "general dcterrence", i. e. I~tting the market determine the degree to which, and the ways in which, activities are desired given 5uch costs, and giving people rreedom to choose whcthcr lhey would ralher engage in the activity and pay the cosls of doing so, induding accident COSls, or, given thcse extra costs, engage in saCer activities that migbt otherwise have seemed less desirable. See Calabresi, Guido, The Costs of Accidents - A LeKal and Economie Analysis (New Haven: Yale University Press, 1970) at68-94.
1
International Responsibility and Liability PiI&C 50
the eAploration and exploitation of the sea-bed. the transport and use of liquid or
gaseous hydrocarbons have drawn humanity into new activities which, though they may
not be prohibited, but are actualIy considered useful and necessary, pose latent threats
to people. ecological systems and property. In the event of accidents or if injurious
consequences arise out of su ch activities. they tend to ignore national borders and will
often take the form of transboundary harm. No breach of an international obligation
having occurred, the victim State will he le ft with the burden of re-establishing the ~
gOY ante and the costs incurred.
2.2.2 Liability as an Established Concept in Public Intemational Law
2.2.2.1 Liability as a CORventional Regime
As of today. conventional regimes stipulating forms of strict Iiability. or Iiability for risk.
exist for three specifie types of hazardous activities:
International Responsibility and Liahility
• the peaceful use of nuclear energyt93,
• the pollution of the high seas with hydrocarbons and other polluting substancesl94, and
• space activitiesl95•
If either the State of origin or the affected State is not party to an agreement otherwise
applicable, or if the harmful activity does not fall within the scope of any of the above·
mentioned conventional regimes, parties to a dispute will have to resort to rules of
customary international law.
2.2.2.2 Liability as a Rule or Customary International Law
Customary international law faUs short of a solution to the problem of harm resulting
from lawful activities.
Maxims and principles, su ch as sic utere tuo iure ut alienum non laedasl96 or the
principle of good neighbourlinessl97 can be said to reflect the international community's
193 Convention on Third Party Liability in the field of Nuc1ear Eneri,Y. signed al Paris on July 29, 1960, European Nuclear Energy Agency, Organizalion for Ewopean Economie Co-operation, Doc. C (60) 93, and Additional Protocol, signed at PoUis on January 24.1964. (1974) 956 UNTS 251-388, text also in (1961) 55. Am. J.lnt'1. L. 1082-1094. As of December 31, 1989, the Convention was in force for 13 States, see BGBI. Teil 2, Fundstellenverzeichnis B. Convention of 31st JanuaO' Sup,plementary to tbe Paris Convention of 29th July 1960 on Third Parly Liabilily in the Field of Nuclear EnerK)', signed at Brussels on January 31, 1963, (1963) 2 ILM 685-702. Convention on Civil Liability for Nuclear Dama~e, opened for signature at Vienna on May 21,1963, entered into force on August 22, 1963, ten in (1963) 2 ILM 727· 745. Convention on the Liability of Qperators of Nuclear Shjps, signed at Brussels on May 25, 1962, teXl in (1963) 57 Am. J. Int'I. L. 268-278. As of December 31, 1989, it was in force for 29 States, see BGBI. Teil 2, Fundstellenverzeichnis B. Convenlion Relatina to Civil Liability in" field of Maritime Carriat!e of Nuclear Malerj41, signed at Brussels on December 17, 1971, teX! in (1977) 48 Vertragssammlung AA, Serie A, 480-491 (Nr. 6(6). As of December 31, 1989, it was in force for 10 States, see BGB!. TeiJ 2, Fundstellenverzeichnis B.
194 International Convention on Civil Liability (or Oil Pollution Damaae, signed at Brussels on November 29, 1969, teXl in (1977) 48 Vertragssamm)ung AA, Serie A, 216-245 (Nr. 657). As of December 31, it was in (oree for 52 States, see 8GBI. Teil 2, f'undsteUenverzeichnis B. Proloco) to tbe Internatiopal Convention on Civil Liability for Oil Pollution Dama", 1969, signed at London on November 19, 1976, text in (1982) 59 Vertragssammlung AA, Serie A, 272-281 (Nr. 771).
195 Convention on International Liability (or Damaics Caused b.y Space Objects. sec supra note S. 196 See Cheng, Bin, General Principles of Law as Applied by Inlernational Courts and TribuDélls, (London,
Stevens & Sons, 1953) at 121. 197 See Verdross. Alfred and Bruno Simma, supra note 35, al 643-649.
1
1
International Responsibility and Liability Pue 52
acceptance of responsibility for potentially harmful activities in an ethicaJ or sociological
sense. States do, however, take care to point out that recognition of such maxims does
not necessarily impJy recognition of the duty to compensate in the event of damage l 9!1.
The reticence to accept legal consequences coupled with the repetitive restatement of
the afore-mentioned principles in international agreements reveals the true level of their
acceptance by the international community: comparable almost to the role the biblical
ten commandments play in a modern Christian society, they are regarded as a
description of how the situation should be - naturally and ideally -, but not mu ch more
th an lip-service is paid to them in everyday life.
Characteristically enough, but two - c1assical - international judicial decisions may be
germane to the topic.
In the Trail Smelter casel99, an international arbitral tribunal was for the first time
confronted with a dispute concerning transboundary harm resuJting from a hazardous
activity. Much dted and sometimes considered to be the Joc~s classicys in this field, the
internationallegal relevance of the decision has often been overestimated. Not only had
the answer to the question of whether Canada was to be held responsible for the
damage been anticipated by the Special Agreement200, but the tribunal was also
n~quested to apply U.S. municipallaw as weil as international law2()t. Thus, the arbitral
a\vard in the TraiJ SmeJter case can only be of limited relevance as an international
prt~cedent. As to the substance of the decision, Canada was held responsible under
intemationallaw for having breached its obligation to observe due diligence~2. Hence,
the case may be cited in the context of State responsibility, not, however, as a precedent
in the field of Iiability for harm caused by lawful activities.
198 See Tomuschat at the I.L.C.'s 2018th meeting, (19871) Y.B.I.L.C. at 151, para. 9; Quoc Dinh, Nguyen, F'atrick Daillier and Allain Pellet, supra noie 23, il. f9".
199 Irail Smeltcr Case, U .S.A. v. Canada, supra Dote ~17. 200 Special Agreement (Convention for Seulement of Difficulties arising from Operation of Smelter at
Trail, B.C.), in (1949) Rep. Int'I Arb. A., 1907-1910; see especially the preamble and art. 1, al 1907. 201 Art. 4 of the Sperial Agreement, supra note 200; al 1908; see also the award in the Irai! Srnclter Case,
supra note 57, atl964 for evidcnce that the Tribunal <lid, in faet, apply U.S. municipallaw, too. 202 Se.~ supra noie 57, al 1911.
International Responsibility and Liability
Another international judicial decision often said to have significance in the present
context is the International Court of Ju&tice's second judgment in the Corfu Channel
case203• However, important elements of the case differ considerably from the
circumstances which characterize disputes concerning the occurrence of transboundary
harm204• The latter result from an interference originating in a territory other than that
where the harm occurs, whereas in the Corfu Channel case the events and their result
took place in the territory of the same State - Albania. Moreover, the injury inflicted
was the intended result of a military activity. Similar to the reasoning in the Trail
Smelter award, the Court constituted the existence of an international obligation to
observe due diligence and held A1bania responsible for the breach of this rule of
customary international Jaw. The duty to make reparation was based on the commission
of an internationally wrongful act20S•
Neither the Trail Smelter arbitral award, nor the International Court of Justice's
judgment in the Corfu Channel case give evidence of a customary international norm
establishing Iiability for transboundary harm resulting from activitiel; not prohibited by
internationallaw.
There may be recent tendencies in State practice, which may develop, .:rystallize and, in
the future, emerge as legally binding obligations. At present, however, these tendencies
are mere "soft law"206.
203 CorCu Channel Case, supra note 44.
204 Klein, supra noie 166, at 109. lOS See supra noIe 44 al 23. 206 See Graefralh, Bernhard, "Responsibilily and Damages Caused: Relalionship between Responsibility
and Damages" (198411) 185 RdC 9-149 al 110-113. On lhe notion oC "soCt law" in general see Tammes, A. J. P., "SoflLaw·, Essays on International & Comparative Law in Honour ofJudKe Erades (The Hague: Martinus Nijhoff, 1983) 187-195; Jabloner, Clemens and Wolf Okresek, "Theoretische und praklische Anmerkungen zu Pbanomenen des 'soft laW" (1983/84) 34 ÔZÔffRVR 217-241; Verdross, Alfred and Bruno Simma, supra noie 35 al 419-422. See a1so Verdross, Alfred and Bruno Simma, supra note 35, al 419-422.
International Responsibility and Liability Pue 54
2.2.2.3 Liability as a General Principle of Law
It has been argued that the concept of strict liability, present in so many rnunicipallegal
systems, qualifies as a general principle of law under article 38 (1) (c) of the Statute of
the International Court of Justice and hence forms part of conternporary public
international law alreadf07. The misled approach undcrlying this view becorncs
apparent when the rationale of article 38 (1) (c) is called upon. As Lord McNair said in
the International Status of South-West Africa Case:
"The way in which international law borrows from this source is not by means of
importing private law institutions "Iock, stock and barrel," ready-made and fully
equipped with a set of rules. Il would be difficult to reconcile such a process with the
application of "the general principles of law·'. In my opinion, the true view of the dut Y
of international tribunals in this matter is to regard any features or terminoJogy
which are reminiscent of the rules and institutions of private Iaw as an indication of
policy and principles rather th an as directly importing these rules and institutions .1œ.
General principles of law in the sense of article 38 1 (c) of the Statute of the
International Court of Justice are either principles which are common to ail or most
national systems of law and may therefore be used to fill gaps in international lawœ, or
principles referring to "logical propositions resulting from judicial reasoning on the basis
of existing pieces of international law and municipal anaJogies"21O. Thus, generaJ
principles of law can be described as a source of law with regard to the application of
207 Kelson, John M., "State Responsibility and the Aboormally Dangerous Activity" (1972) 13 Harv. 101'1 L. J.197-244.
208 MeNair, Sir Arnold, "Separate Opinion", International Status of South-West Africa Casç, (1950) I.CJ. Reports 128-219 at ]46-163 (quote at 148). Similarly, Goldie: "In the search for analogies rccourse to ~ (c) of Article 38 (1) of the International Court of Justice's Statute does Dot demand that existing specifie rules should he collected, as in an hcrbarium, and thal a dry selection he made from the particular items so displaycd" - Goldie, L.F.E. "Liability for Damage and the Progressive Development ofInternational Law", (1965) 14 Int'I & Comp. L. Q. 1189-1264, at 1239.
209 ID ils judgment on the Corfu Channel Case (Merits), supra note 44, al 18, the I.CJ. stated: "This indirect evidencc is admirtcd in ail systems of law, and its use is recognized by international dccisioos.". See also Brownlie,lan, Principles of Public International Law, supra note 42, al 15-18.
210 Brownlie, lan, Principles of Public International Law, supra note 42, at 19.
1
•
International ReSDonsibilily and Liahility
other sources of existing law. They are not themselves rules establishing rights or
duties211•
2.2.2.4 Liability as Described in Legal Doctrine
Legal authors have advocated the introduction of an analogous fonn of the common law
concept of strict liabilityl12 to international lav13• In the view of Jenks, Goldie and
Kelson, the three main protagonists of the idea, a subject of international law should be
]jable for damage caused by an activity that
- is not prohibited by internationallaw,
- is unusually dangerous and
- can be unusually wlnerable214.
2U See Tunkin, Grigory, "'General Principles oC Law' in International Law", Marcie, René, Hermann Mosler, Erik Suy and Karl Zcmanek, eds, Internationale Festschrift fUr Alfred Verdross (MÜDcben: Wilhelm Fink, 1971) 523-532 al 532.
212 Gencrally, the terms "strict liability", "absolute liahility", "liability for risk" and "liability for ultrahazardous aclivilics" appcar to bc on the same scmantic Jevel. However, the attempt bas been made to drawa distinction between ·strict" and "absolute"liability, tbe former used to de scribe a concept oC liabilily based on the causal connection between activity and damage, but providing modes of exoneration, the latter dcnoting a Corm of Iiability that docs not have room for such provisions. See Goldie, L.F.E., supra note 208, at 1215-1220, and "International Principles of Responsibility for Pollution" (1970) 9 Colum. J. Transnat. L. 283-330 al 316-317. Sec also Brownlie, Ian, System of the Law of N.1tions. Stale RcsWnsihilitl" Part 1, supra noie S2, al 44.
213 See Goldie, L.F.E., "Liabilily for Damage and the Progressive Developmenl of International Law", supra note 208; "International Principles of Responsibilily (or Pollution", supra noie 212; "Development of an International Environmental Law - An Appraisal", Hargrove, Jobn Lawrence, ed., Lim:. Institutions. and the Global EnvirQnm,..ÇD1 (Dobbs Ferry, New York: Oeeana Publications, 1972) 104-165; " A General Vicw of International Environmental Law. A Survey of Capabililies, Trends and Limits", Kiss, Alexandre-Charles, ed., The Proteçtion of the Environment and Jnternati"nal Law, ,QillQ,Quium 1973 of the Hague Academy of International Law (L.eiden: Sijthoff, 1975) 25-143. For a comment on Goldie's view, ~ee Dupuy, Pierre~Marie, La Responsabilité Internationale des Etats pour les Dommages d'Origine Technologique et Industrielle (Paris: Pédone, 1976) al 165-169; Jenks, C. Wilfred, "Liability for Ultra-Ha7.ardous Activities in International Law" (19661) 117 RdC 99-200. For a comment on Jenks' view sec Dupuy, Pierre-Marie, La Responsabilité Internationale des Etats POur les Dommages d'Origine Jeçhnol(l~iQue et Industrielle (Paris: Pédone, 1976) at 163-165; Kelson, John M., supra note '1fJ7, al 233.
214 See Goldie, L.F.E., "International Principles of Responsibility for Pollution", note 212, at 283-284.
International Responsibility and Liability PiJ&c56
As in the common law concept, the non-negJigent creation of a serious risk arising from
an activity beyond the scope of common usage and thus abnormal is a decisive
criterion21S• The ultra-hazardous character of an activity having been established, it i!ol
the transformation of the typical risk into actual damage, i. e. the causal nexus between
the enterprise conducted and the harm from which relief is sought, that gives fise to the
liability of the State in the territory of which the activity had its origin216•
The scope of the traditional modes of exoneration at the disposaI of States responsible
for internationally wrongful acts is signifieantly redueed and those available to a liable
State have undergone substantial modification217• It would, for instance, be ineonsistent
with the basic tenets behind the concept of strict liability to allow exoneration on the
grounds that the standard of care a reasonable man would have taken to prevent harm
were observed. Similarly, the role assigned to the question whether the injurious
consequences were foreseeable or not cannot be the same as in the law of Stale
responsibilitfl8.
Although the circumstances entailing strict liabi1ity differ considerably from those
incurring State responsibility, the afore-mentioned authors have not proposed specifie
legal consequences219•
21S On the imputation of liability for the initial decision to expose olhers to risk see William B. Grccnman v. Yuba Power Products. Inc., 27 Cal. Rplr. 697-702.
216 Kelson, John M., !oupra note '1fJ7, at 239 and 241. 217 Goldie, L.F.E., "International Principles of Responsibility for Pollution", supra note 212, al 311 and
"Liability for Damage and the Progressive DevcJopment of International Law", supra note 208, at 1205-1206 and 1216-1218; Jenks, C. Wilfred, supra note 213, atlO7, Kclson, John M., supra note '1fJ7, at 230-232.
218 See Kelson, John M., supra not~ '1fJ7, at 232. 219 Kelson specifically points out that the limitation of liability with regard to the amount of damages is nol
a feature of the concept of strict liability, bul a matter of contract as opcrating bctween the signatories to an agreement. Kelson, John M., supra noie '1fJ7, al 232-233.
t
InternationaJ Responsibility and Liability PageS?
2.2.2.5 Concluding Remark
To sum up the brier investigation of the situation in public internationallaw with regard
to the legal consequences of injurious consequences arising out of lawful activities it can
be stated that, apart from rules in specifie conventional regimes, strict liability is not an
established concept.
2.2.3 The International Law Commission's Project of DraRing a Codification
2.2.3.1 The Commission's Approach to the Topie
At its thirtieth session in 1978, the I.LC. incJuded the topic "International liability for
injurious consequences arising out of activities not prohibited by intemationallaw" in ils
programme of work and appointed Robert Q. Quentin-Baxter Special Rapporteur for
the topic220• The five reports Quentin-Baxter submitted to the Commission between
1980 and 1984 sought to deve)op a conceptual basis and schematic outline for the
topic221 • In 1984, the Commission also considered a survey of the relevant State
practice222 and the replies to a questionnaire addressed to several international
organizations in order to ascertain whether obligations which States owe to each other
220 A working group \\ilh Ouenlin-Baxter as ils chairman was established at the l502nd meeting and reporled to the commission at the end orthe session - see Report oftbe International Law Commission on the work of ils thirtieth session, UNGAOR, Thirty-Tbird Session., Suppl. No. 10 (UN Doc. A/33/10), at 4 and 373-319.
221 For the live reports preparcd by Special Rapporteur Quentin-Buter see (1980 Il partI) Y.B.I.L.C. 247-266 (UN Doc. A/CN.4/334 and Add.l and 2), (198111 part 1) Y.B.l.L.C.l03-123 (UN Doc. A/CN.4/346 and Add.l and 2), (198211 part 1) Y.B.I.L.C. 51-64 (UN Doc. A/CN.4/3a», (1983 Il partI) Y.B.I.L.C. 201-229 (UN Doc. A/CN.4/373), (1984 Il part 1) Y.B.I.L.C. 155-173 (UN Doc. A/CN.4/383 and Add.l).
222 Study prepared hy the Secretariat enlitlcd ·Survey of St ale practice relevant to international Iiability for injurious consequences arising out of aets not prohibited by inlernationallaw", UN Doc. ST /LEG/19, later issued as UN Doc. A/CN.4/384.
1
International Responsibilitv and Liahility r",e 58
and discharge as members of international organizations may, to that extent, fulfil or
replace sorne of the procedures referred to in the schematic outline223•
Following the submission and consideration of four more reports prepared by Julio
Barboza224, appointed Special Rapporteur for the topie in 1985, the I.L.c. in 1988
referred draft articles 1 to 10 of Chapters 1 and Il to the Drafting Committee225• A year
later, a revised version of draft articles 1 to 9 was considered and referred to the
Drafting Committee226• Eight new draft articles for Chapter III, proposed in the Special
Rapporteur's fifth report227, were considered by the Commission228.
In accordance with opinions expressed in the Sixth Cornmittee, the I.L.c. ha3 come to
the following basic conclusions with regard to the form and the substance of the
envisaged codification:
- The terrn "liability" is understood as encompassing obligations of prc"ention and
obligations of reparation. The intrinsic links in this symbiosis of two seemingly
heterogeneous types of obligation are the qualification of both as primary norms on
the one hand and the fa ct that both centre around in jury, either actual or potential, as
their other indispensable key factor on the other hand229•
223 See (198411 part 1) Y.B.I.L.C. 129-154 (UN Doc. AjCN.4j378). 224 For the four reports prepared by Special Rapporleur Barboza see
(1985 II part 1) Y.B.I.L.C. 97-113 (UN Doc. A/CN.4/394), (1986 II part 1) Y.B.I.L.C. 145-161 (UN Doc. AjCN.4/402 and Corr. 1-4), (198711 part 1) Y.B.I.L.C. (UN Doc. A/CN.4j405 and Corr. 1-2), UN Doc. AjCN.4/413 and Con. 1-2.
225 See Report of the International Law Commission on lhe work of ils fortietb session, UNGAOR, Forty· Third Session, Suppl. No. 10 (UN Doc. A/43/10), at 44, para. 101.
226 See Report of the International Law CommÎ.\Sion on lhe work of ils forty-fusl session, UNGAOR, Forty-Fourth Session, Suppl. No. 10 (UN Doc. Aj44/10), al 236-250, and al 221, para. 308.
227 UN Doc. A/CN.4/423 and Con. 1-2. 228 See supra note 226, at 250-257. 229 See Quentin-Baxter's third reporl. (198211 part 1) Y.B.lLC. 52-64 at 53 para. 9 wilh rdercDcc to
opinions expressed by membcrs of the Commission in footnotc 12; Reporl of the International Law Commission on the work of its rorty-first session, UNGAOR, forty-Fourlh Session, Suppl. No. 10 ({Ji'! Doc. A/44/lO) at 240 para. 343; Barboza's second report (UN Doc. A/CN.4j402), (198611 part 1) Y.B.I.L.C.145-161 al 146-147 paras 6 and 8.
1
j
1
Intçrnational Rçsponsibility and Liahility Pa&eS9
- ln contrast to the draft on State responsibility, this topic deals with primary norms
only230. While State responsibility does not require the occurrence of damage, the
provisions of this draft revolve around "injury" or "harm" as its focal point23\.
In view of the fa ct that liability for injurious consequences arising out of activities not
prohibited by international law cannot be said to have a solid foundation in public
international law yet, the articles of the "innovative codification" are drafted in a way
appropriate for a residual or "umbrella" convention: the substantive roles are couched in
very generaJ terms, thus leaving it to specifie bilateral or multilateral agreements to go
further232•
2.2.3.2 International Liability for Injurious Consequences Arising out or Acts not
Prohibited by International Law
2.2.3.2.1 General Provisions
The first three articles determine the scope of the draft and, by means of defining basic
terms, distinguish its subject-matter from that of State responsibiJitfll.
Pursuant to article 1, the draft shaH apply to activities, i. e. series of acts, carried out in
place~ under the jurisdiction or control of a State, if their physical consequences cause or
create an appreciable risk of causing transboundary harm through the process. The
definition of "appreciable risk" in article 2 reflects the I.LC.'s fundamentally different
understanding of the concept of JiabiJity as compared to the one developed by legal
authors so far. It includes both, activities inherently involving the low probability of very
considerable, disastrous harm, and activities bearing the hig'" probability of minor
2JO See Ouentin Baxter's second report (1981 JI part 1) Y.B.I.L.C. 103-123 al 106-108; bis lbird report, (198211 part 1) Y.BJ.L.C. 51-64 at 53 para. 8; Barboza's second report, supra Dote 229, al 147 para. 7.
231 See Barboza's second report, supra noIe 229, al 147 para. 9. 232 On tbe disadvantagcs of Ibis approach see Tomuscbat al the I.L.C.'s 2018th meeting, (1987 1)
Y.B.I.L.C. al 150-151 paras 4-10. 233 For the tcxt of the draft articles sec supra note 226.
1
International Responsibility and Liability Pu.e 60
appreciable harm. Thus, the draft is not only applicable to what has been described as
"ultra-hazardous activities"234, but also to activities which through a simple examination
of the activity and the substances involved either intrinsically or in relation to the place.
environment or way in which they are used may be identified as having a high potential
ta cause minor injuries with a cumulative effeet, finally resulting in appreciable harm. It
thereby encompasses as aeute and delicate problems as that of ereeping transhoundary
poUution23S such as the development of acid rain over Canadian territory due to
activities in the United States.
Article 3 stipulates a rule of attribution or imputability: The causal nexus between a
particular activity and the occurrence of harm given, a State of origin shaH be liable only
if it knew or had means of knowing that the activity was carried out in a place under itll
jurisdiction or control and involved an appreciable risk of causing such damage2.'\6.
Articles 4 and 5 prescribe that the provisions of the draft shall be without prejudice to
the operation of bilateral or multilateral agreements in this field of law or any other
roles of internationallaw.
2.2.3.2.2 Principles
The principles set out in articles 6 to 9 can be understood as an attempt to elaborate and
codify the maxim SÎk.utere tuo iure ut aHenum non laedas, which describes the other
face of the coin of sovereigntf3'.
234 See Jenks, C. Wilfred, supra note 213. 235 See Report of the International Law Commission on the work of ils fortieth session, UNGAOR, Forty·
Third Session, Suppl. No. 10 (UN Doc. A/43/10) at14 para. 25. 236 On knowlcdge as a prercquisite for attribution see Report of the International Law Commission on the
work of its fortieth session, UNGAOR, Fort y-Third Session, Suppl. No. 10 (UN Doc. A/43/10) al 31-32 paras 68·72.
237 For the texts of tbe draft arlicles sec supra note 226. On the maxim and ils role in internationallaw sec Ouentin·Baxter (1980 1 part 2) Y.B.I.L.C. al 159-160 para. 135.
1
. 1
•
IntcrnatjOPiIJ Re~ponsibiJity and LiabiJity Pi&e 61
As a corrollary to the principle of the sovereign equality of States, a11 human activities in
the territory or any place under the jurisdiction or control of aState may be conducted
with as much freedom as is compatible with the protection of righLS and interests
emanating from the sovereignty of other States2.1'l. Thus, States shaH - to the best of their
abilities - take appropriate measures to prevent, or, where necessary, minimize the risk
of the occurrence of transhoundary harm article 8. Article 7 pre scribes obligations of co
operation in good faith among States in seeking to prevent any activity from causing
transboundary harm and in minimizing its effects once it has occurred.
According to article 9, the State of origin is to make reparation for appreciable harm
caused; a decision on such reparation shaH be related through negotiations between the
Hable State and the victim State on the basis of the criteria set out in the provisions of
the draft. Another gJance at the rules of State responsibility elucidates the background
of this ruie. While in cases of State responsibility the law attempts to restore, as far as
possible, the situation that existed prior to the occurrence of an internationally wrongful
act, harm anct reparation due have to be determined by reference to a number of factors
where injurious consequences bave arisen out of lawful activities. Hence, negotiations
between the States involved seem the most suitable way to ensure tbat ail aspects
qualified for and worthy of consideration are taken into account239• Communication and
co-operation between States are inevitable not only for the prevention of harm, but also
ID the aftermath of ilS occurrence.
2J8 See art. 6, supra note 137. Sec also the generaJ principJe of good neighbourliness as sel out in Article 74 of the Charter of the United Nat ions, supra Dote 14, and the balance of mterest test as prescribed in Principle 21 of the Declaration of the United Nations Conference on the Human Environment (Stockholm Conference): ·States have, in accordance with the Charter of the United Nations and the principles of internationallaw, the sovereign righl to exploit tbeir own resources pursuant to their own environmental policies, and the responsibility to ensure that activities wilhin their jurisdiction or control do not cause damage to the enVÎfonment of other States or of areas beyond the limits of national jurisdiclion-, lllLM 1416.
239 See Report of the IinternationaJ Law Commission on the work of ils thirty-ninth session, UNGAOR, Forly·Second Session, Suppl. No. 10 (UN Doc. A/42/10), (198711 part 2) Y.B.I.L.C. 39-57 at 40-41 para. 127 .
f ~
1
International Reswnsibility and Liability Plie 62
2.2.3.2.3 Notification, Information and Warning by the AfTected State
It seems to be superfluous at the present stage ta elaborate on articles 10 to 17 of
Chapter III of the draft as proposed by the Special Rapporteur-w. There is still ample
discussion on this part of the tapie within the Commission2ot1 •
2.2.3.2.4 Concluding Remark
The I.L.C.'s draft will most probably be a ma~ter-piece in sa far as the tapie will have
been dealt with in an abstract, systematic and coherent way for the first time. The
master-piece may, however, lack ultimate exceJlence, if the I.L.C. does not make use of
its chance to include in the tapie what is admittedly a very modern, but also a most
imminent aspect: harm done ta areas beyond natiunal jurisdiction or control. So far,
article 1 as weil as the definitian of "affected State" in article 3 limit the scope of the
draft to the cJassÎCal situation in the field of international responsihility and liability.
marked by the existence of a State of origin on the one hand, and one or several affected
States on the other hand. Sorne members of the Commission have already commented
criticaHy on the limitation of the scope of ~he draft, which seems particularly unfortunate
in the light of the continuous deterioration of the human environment242• It might be an
important and encouraging step towards the protection of the common heritage of
mankind, if the I.L.C.'s draft, innovative as it is anyhow, could be even more progressive
240 For the teXl of tbe articles see Report of the International Law Commission on tbe work o( its (ortyfirst session, UNGAOR. Forty-Fouflh Session, Suppl. No. 10 (UN Doc. Aj44jlO) al 229-232.
241 See Report of the International Law Commission on the work of its forly-first session, supra noie 240, al 250-257.
242 See Report of the International Law Commission on the work o( ils forlieth session, UNGAOR, Fort yTbird Session, Suppl. No. 10 (UN Doc. Aj43jIO) at 23-24 para. 51, and Report o( the International Law Commission on the work of its forly-flrsl session, supra note 240, at 2.C;1 paras 378-379.
1
1
Inlernational Rcsponsibilily and Liability
and deal with Iiability for harm occurring in areas beyond national jurisdiction or
control.
"
,
? ,
International Responsibility and Liability
3 International Responsibility and Lia bili t y in the Law of Outer Space
3.1 Genesis of the Norms
3.1.1 Space Law at ils Embryonic Stage
For as long as the United Nations have been dealing with issues concerning outer space,
international responsibility and Iiability for harm caused by space activities have becn
topies on its agenda.
On July 14, 1959, the Ad Hoc Committee on the Peaceful Uses of Outer SpacéH
already reported that the issue of "liability for injury or damage caused by space
vehicles" would arise in the exploration, use and exploitation of outer space2'". The
problem of liability for damage caused by space objects was regarded as being of
immediate concern to the world community.
COPUOS, the Committee on the Peaceful Uses of Outer Space, was formed and
entrusted with the task of drafting a legal regime governing man's activities in space24~.
During the first session of COPOUS' Legal Sub-Committee, the United States and the
Soviet Union submitted the first formaI proposais for an international agreement on
liabiIity for space vehicle accidents246• The United States' submission commended five
basic principles, which remained guidelines throughout COPUOS' work on the subject:
- States and international organizations responsiblc for the launching of space vehicles
were to be internationally liable for personal in jury, loss of life, or property dam,tge
caused thereby, in the event of such harm occurring on land, on the sea, or in the air;
243 The Ad HOt Committee was cstablished by UNGA-res. 1348 (XIII) of Dccember 13, 1958, UNGAOR, Thirteentb Session, Annexes, Agenda Item 60 at8-9.
244 Report orthe Ad Hoç Committce on the Peaccful Uses of Outer Space, UN Doc. A/4141 of July 14, 1959, UNGAOR, Fourticth Session, Annexes, Agenda Item 25 al 1·27.
245 Tbe Committce was cstablishcd by UNGA·rcs. 1472 (XIV) of Dccembcr 12, 1959. 246 U.s, proposaIs: UN Doc. AjAC.l05jC.2/L.4 of June 4,1962, rcproduccd as UN Doc A/Ae.l05/L.5
of June 13, 1962, UN Doc. A/518t, Annex 3 of Scptcmbcr 27, 1962 at 5; U.S S.R. propo~ls: UN Doc. A/AC.105/e.2/L.l of June 6,1962, UN Doc, A/AC.105/6 of July 9,1962, al 3, UN Doc. A/51St, Annex 3 of Septembcr 27, 1962, at 1. Reacting to the Soviet proposaIs, tbe U.S, put forward a Draft Declaration on Principles Relating 10 the Exploralion and Use oC Outer Spacc: UN Doc. Aje. 1/881 of December 8, 1962, al 23; UN Doc. AjAC.l05/12, Annex 1 of May 6, 1963 at 9.
1
1
International Responsibility and Liability
- a daim based on harm "should not require proof of (auIt on the part of the State or
international organization responsible for Iaunching the space vehicle in question,
aJthough the degree of care which ought reasonably to have exercised by the person or
entity on whose behalf daim is made might properly be taken into account";
- a daim might be presented internationally without regard to the prior exhaustion of
any domestic remedies that might have becn available;
- daims were to be presented within a reasonable time; and
- disputed daims were to be settled by the International Court of Justice247•
Limiting the app1icabiIity of a future agreement to damage on Earth or in the
atmosphere was just one of the points that did not meet the Soviet Union's approval.
When Belgianm and Hungarian249 proposaIs, too, had been discussed, it became
apparent that the opposing views could not be reduced to a common denominator in the
immediate future. Lengthy negotiations seemed inevitable. However. it also became
clear that there was a general interest in the development of principles governing the
law of outer space. Thus, on December 14, 1962, the General Assembly adopted
resolution 1802 (XVII) entitled "International Co-operation in the Peaceful Use of
Outer Space"2S0. It was the first of a long series of resolutions attempting to induce
COPUOS to produce an acceptable draft agreement.
On December 13, 1963, the General Assembly unanimously adopted resolution 1962
(XVIII), the "Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space"ZSI, and resolution 1963 (XVIII), again entitled
"International Co-operation in the Peaceful Use of Outer Space252,
247 See the V.S. proposais, supra nole 246. 248 See UN Doc. A/AC.l05/C.2/L.7/Rev. 3 and Corr.l, 2 and 3. 249 See UN Docs A/AC.l05/C.2/L.10/Rev. 1 and Corr.1 and A/AC.105/C.2/L.24 wilb Add.l. 250 VNGA-res. 1802 (XVII) of Oecember 14, 1962, UNGAOR, Scvcntccntb Session, Annexes, Agenda
IteIrI 27 al 16-18. 251 UNGA-res. 1962 (XVIII) of Oecembcr 13, 1963, VNGAOR, Eighteentb Session, Annexes, Agenda
Item 28 al 27·28. 252 VNGA-res. 1963 (XVllI) of December 13, 1963, UNGAOR, Eighteentb Session, Annexes, Agenda
Item 28 al 28-29.
International Responsibility and Liability PilKe66
Although it is a United Nations' General Assembly resolution and as such not legally
binding2S3, special reference is due to the Declaration. According to its fifth principle,
States are to bear international responsibility for national activities in outer space,
whether carried on by governrnental agencies or non-governmental entities2S4• With
regard to activities carried out by international organizations, the afore-rnentioned
principle provides for responsibility of the respective organizatioll as weil as the States
partidpating in il. Pursuant to the Oeclaration's eighth principle2Ss, a State shaH he
Hable for damage caused by a space object that is launched or the launching of which is
procured by that State. The same applies to the Iiability of aState from whose territory
or facility such an object is launched.
On Oecember 21, 1965, the General Assembly adopted resolution 2130 (XX), urging the
committee, in developing the law of outer space, "to continue with determination the
preparation of draft international agreements on assistance anù return of astronauts and
space vehicles and on liability for damage caused by objects launched into outer spa ce "256
3.1.2 The Outer Space Treaty
While COPUOS continued working on the issues mentioned in resolution 2130 (XX)2S7,
the United States and the Soviet Union agreed on the need for an international
convention containing basic legal principles governing activities of States in the
253 On the nature of United Nations' Gcncrr.i Assembly resolutions sec Tomuschat, Christian, "Die Charla der wirlschaftlichen Rechte und Pnichlen der Slaalcn" (1976) 36 ZaoRV 444-491 at 465-490.
2S4 UNGA-res. 1962 (XVIII), supra note 251. 25S UNGA-res. 1962 (XVIII), supra note 251. 256 UNGA-res. 2130 (XX) of Deœmber 21, 1965, UNGAOR, Twenlietb Session, Annexes, Agenda Item
31 al 7-8. 257 See supra note 257.
l
1
Internalional Responsibility and Liabiliry
exploration and use of outer space2.'i8. Therefore, in 1966, the Legal Sub-Committee had
to interrupt its work in order to draft such a document. It formulated the Treaty on
Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies2S9, commonly known as Outer Space
Treaty.1t was opened for signature on January 27, 1967, in anticipation of the landing of
men on the moon2lJO• The principles set forth in the Treaty constitute a framework for
future detaiJed provisions on the various legal issues arising out of man's venture into
outer space. Its articles VI and VII address the matter of international liabiJity for
damage261•
An almost verbatim repetition of the eighth principle laid down in the 1963
decJaration262, article VII does not provide any elaborate provisions. Il postulates that
not only each State party to the Treaty launching or procuring the launch of a space
object, but a)so each State party from whose territory or facility such an object is
launched, is internationally liable for damage to another State pany or to its natural or
juridical persons, if the damage is caused by the object or its component pans on the
Earth or elsewhere.
The term n[e]ach State Party to the Treaty that launches or procures the launching of an
object into Outer Space" suggests that not only the State itse)f, but also private entities
2S8 See UN Doc. AI AC.10S/C.2/SR.57 al 13; on the drafts and the discussions in the Legal SubCommillee see Dembling, Paul G., and Daniel M. Arons, '"The United Nations Celestial Bodies Convenlion- (1966) 32 J. Air.L. & Corn. 535-550.
259 See supra Dote 3. 260 On July 21,1969, Neil Amstrong and Edwin A1drio slepped out ooto the Mare Tranquililatis. 261 For a different opinion sec Firestone, Marc, "Problems in the Resolulion of Disputes Concerning
Damagc in Out cr Space", (1984-85) 59 Tulane L. Rev. 747-780 al 751-752. rrrestone holds the view that art. IX, too, implicitly deals with liability. According to art. IX, a Stale thal"bas reason to believc tbat an aclivity or expcrimenl planned by it '" would cause polenlially harmful interference wilh activities of other States parties ... shaH undertake appropriate international con~ultations before proceeding-. To Fircstone's mind, a breach of the dut y to refrain from hazardous activities wilhout fust consulting with the proper parties would presumably impose liability for damage caused by sucb activities. This is, bowever, a characterislic of al) primary Dorms and art. IX addresses the legaJ consequences of an aet nOl in conformilY wilh the obligation eSlablished as much Or as liUle as any other primary oorm.
UZ Sec supra note 251.
'.
üln~!e~r~na~t~io~n~al~R~e~spo~n~si~bi~lit~y~an~d~L~i~ab~i~lit~y ________________________________ ~p~
may endeavour in spa ce missions and incur a State's liability if damage occurs26J• Article
VI of the Treaty clarifies this by explicitly imposing international responsihi:ity on States
for any activity in outer space, irrespective of whether such an activity is carried out by
governmental agencies or by private entities264• The phrasing of article VI, using the
term "responsibility", is confusing, though. An interpretation reveals lhat the term is not
used as in "State responsibility"26S, but rather as in "morally, socially and therefore legaHy
responsible". Article VI is a rule of attribution266• Much as in article 3 of the I.L.C.'s
draft on liabilitf67, the imputability of an activity carried out by a non-governmental
entity is linked to the State's knowledge of its being carried out. In order to secure that
aoy space activity is known to the respective State, article VI states that such activities
"shaH require authorization and continuing supervision by the appropriate State Party to
the Treaty"268.
3.1.3 The Struggle Towards the Adoption of a Oran Agreement on Liability and the
Adoption or the Rescue Agreement
In 1967, COPUOS' Legal Sub-CommÎUee resumed its work on the draft for an
agreement on international liability for harm caused by space activities. It was generally
accepted that the Convention should be "victim oriented", but consensus couJd neither
be reached on the precise scope of the agreement, nor on the most suitable !rminology
for its substantive provisions. However, provisional agreement was arri~ed at with
respect to a number of definitions, the general field of application, liabiJity of
263 Sec art. VII, supra noie j. For a discussion on the notion of "non·govcrnmcnlal cntitics· and the legislative history of art. VI sec Matte, Nicolas Mateesoo, ed., S(lacç ActivillCS and Emeri;n", International Law (Montreal: Centre for Research of Air and Spacc Law, McGill Univcrsity, 1984) al 294-299.
264 See supra noie 3. Compare the rourth principle of the 1963 declaralion, supra note. 265 See supra note 15. 266 On tbe notion of attribution see supra 2.1.2.2. 267 See supra 2.23.2.1 with note 236. 268 See supra noie 3.
1
~tional Responsibility and Liabilily Paae69
international organizations, time limitations on the presentation of daims as weil as the
formalities for their presentation and reference to arhitration in the event of disputes269•
On Decembcr 19, 1967, the General Assembly once again passed a reso]ution urgently
calling upon COPUOS to complete a draft convention on liability270.
A few months lat\~r, on April 22, 1968, the Agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects Launched into Ollter Space was
concluded271 • Calling for assistance in the event of accident, distress, or emergency
Janding of a space vehicle, the agreement's provisions have the characler of primaI)'
norms, i. e. rules establishing obligations. The consequences of faHure to comply with
them are not dealt with.
White the 1968 Agreement does not as such address the issue of responsibility and
liabilitf72, its successful conclusion was regarded as encouraging and giving impetus to
the work on a convention covering these matters273•
At the end of the Legal Sub-Committee's 1968 session, progress towards a final
convention had been made in sorne areas while there was still suhstantial disagreement
in other fields. Thus, consensus had - at least provisionally - been reached on the
definitions of the terms "damage", "Iaunching" and "launching State" as weIl as the
questions of strict liability and exoneration from liability. However, difficulties remained
respecting the proposed liability of international organizations and their members, the
application of the convention ratione personae and the problem of whether a launching
269 See Report of the Committee on the Peaceful Uses of Outer Spacc, Un Doc. A/fR1J4 and Add. 1, UNGAOR, Twcnly-Sccond Session, Annexes, Agenda Item 32 al 1-35.
270 UNGA-res. 2345 (XXII) of Dccember 19,1967, UNGAOR, Twenty-Second Session, Suppl. No. 16, Agenda Item 32.
271 See supra note 4. 272 As the Outer Space Trealy's art.VI, art. 6 of the Agreement, which refers to -the Slale responsible for
la un ching" and "an international inter-governmental organization ... responsible for launching", is a rule of allribulion. The tcrm "responsible" is used lo describe the link between the launching aUlhority and the aClivily carricd out.
273 See Matte, Nicolas Mateesco, AçrQspacç Lém (Toronlo: Carswell, 1969) al 335.
. '
International Responsibility and Liability
State "should, on proof of fault, be liable to pay compensation for damage caused by
space objects which have left the surface of the Earth"274.
On December 12, 1968, the General Assembly, highly dissatisfied with the slow progress,
adopted yet another resolution requesting COPUOS' Legal Sub-Committee to submit a
draft convention in due course275.
To speed up the work on the document, the delegations of Belgium, Hungary, India, the
Soviet Union and the United States, which had submitted proposais, held informaI
meetings at New York in November 1968 and at New Delhi in March 1969. However,
the resuIt of this attempt to mitigate the harsh dichotomy not only between space powers
and non-space powers, but also between the capitalist and the socialist ideology were
meagre. Although "... the areas of disagreement were now smaller" and "... the
differences of view had been attenuated ... ", the five main issues discussed at these
consultations - the so-called "New Delhi points" - remained unsolved:
- whether the convention should apply to nuclear damage;
- whether there should be a limitation of liability;
- whether the convention should provide compulsory third party settlement of disputes;
- the relationship between international organizations and the convention;
- the law applicable to the measure of damages276•
A disappointed General Assembly adopted at its twenty-fourth session resolution 2601 B
(XXIV) of December 16, 1969, expressing "its deep dissatisfaction" that efforts ln
complete the convention had not been successful and urging COPUOS "to complete the
274 See Report of the Commillee on the Peaceful Uses of Outcr Spacc, UN Doc. A/7285, UNGAOR, Twenty-Third Session, Annexes.
275 UNGA-res. 2453 B (XXIII) of Dccember 12, 1968, UNGAOR, Twenty-Third Se!'sion, Suppl. No. 18, Agenda Item 24.
276 On the debates in New York and New Delhi see van Fenema, P., The ]972 Convention on International LiabiIit)' for Damage Caused by Space Obkill (LL. M. Thesis, Faculty of Graduate Sludics and Rcsearch, McGill University, 1973) lunpuhli~hed] al ]4-15 with furthcr rcferenccs; sec also Bourély, Michel G., 'Comments on the Rajski Rcporl", published paper presented al the Twclfth Colloquium on the Law of Outer Space in Mar deI Plata, Argcntina, from Octobcr 5, 1969 to Octobcr 10, 1969; Schwartz, Mortimer D., cd., ProceedingLof the Twclfth ColloQuium on the Law of Outer Ssl~, Intcrnationallnslilutc of Spacc Law of the International Astronautical Federation, (Davis, California: University of California School of Law, 1970) al 78 .
i
1
International Besponsibility and Liability Pilie71
draft convention on liability in time for final consideration by the General Assembly
during its twenty-fifth session2n•
ft spite of this almost desperate renewed attempt to make COPUOS produce a draft,
1970 passed without a document being submitted to the General Assembly. However, a
drafting group was established and by the end of the session, the Legal Sub-Committee
had agreed on an embryonic draft consisting of a preamb~.: and thirteen articles278•
3.1.4 The Liability Convention
It took yet another strongly worded resolution of the General Assembly279 and another
year until, finally, on June 29, 1971, the Draft Convention on International Liability for
Damage Caused by Space Objects280 was adopted281• On September 10, 1971, COPUOS
gave its approval to the draft282. The First Committee, having recommended its approval
by a vote of 90 to 0 with four abstentions283, submitted it to the General Assembly. The
latter adopted it on November 29, 1971, by a vote of 83 to 0 with four abstentions284•
The four abstaining States, Canada, Iran, Japan and Sweden, supported the goals
expressed in the agreement. However, as they had already pointed out in the meetings of
the Legal Sub-Committee as weil as during the discussions in COPUOS, they wished to
have inc1uded provisions more favourable to c1aimant States with regard to the measure
of compensation and the final settlement of disputes. They also were of the opinion that
277 UNGA-res. 2601 B (XXIV) of December 16, 1969, UNGAOR, Twenty-Fourtb Session, Suppl. No. JO, Agenda Item 28.
278 See UN Doc. A/AC, 105/85, Annex 1 of July 3, 1970, and Report of tbe Commiltee on tbe Peaceful Uses of Oulcr Space, UNGAOR, Twenly-Fifth Session, Suppl. No. 20.
279 UNGA-res. 2733 B (XXV) of Dcccmber 16, 1970, UNGAOR, Twenty-Fifth Session, Suppl. No. 28, Agenda Item 7.
280 See UN Doc. A/AC.I05/C.2jlO, also UN Doc. A/AC. 105/94 al 5-13. 281 Sec UN Doc. A/AC 105/94 of July 8,1971, at 5_ 282 See Report of the CommiUee on the Peaceful Uses of Outer Space, UN Doc. A/842JJ, at 8. 283 Sec UN Doc. A/8528 of Novembcr 23, 1971. 284 UNGA-res. 2m (XXVI) of Fcbruary 8, 1972, UNGAOR, Twenty-Sixtb Session, Suppl. No. 29,
Agenda Item 33.
International RcsponsihililY and Liahility fliC 72
the law of the place where the damOlge had occurred should he the applicahle laWS-~.
Acknowledging their views, the General Assembly in il.!. resolution 2777 (XXVI) - to
which the Convention is an annex - noted that "any State may, on hecoming a party tu
the Convention, declare that it will recognize as hinding, in relation to any other State
accepting the same obligation, the decision of the Claims Commission cOl1cerning any
dispute to which it may become a party"286.
The Convention on International Uability for Damage Caused by Space Ohjects wa. ...
opened for signature on March 29, 1972 in London, Moscow and Washington and wa.c;
signed by sixty-nine States. It entered into force between Bulgaria, Ecuaùor, lreland,
Mali and Niger on September 1, 1972, when the fifth instrument of ratification was
deposited287• As of December 31, 1990, seventy-five States were parties to the
Convention, among them the United States and the Soviet Union2BB•
Article XXVI of the Convention stipula tes that "ten years after the entry into force of
this Convention, the question of the review of this Convention shaH be included in the
provisional agenda of the United Nations General Ac;semhly in order to consider, in the
light of past application of the Convention, whether it requires revision .. .',289. On March
25, 1982 - ten years sinee the entry into force elapsing on August 31, 1982 - the
Seeretary··General, pursuant to rule 13 (g) of the General Ailsembly's Rules of
Procedure, requested the inclusion of the question of a review in the provisional agenda
of the thirty-seventh session of the General Assemblr. On Septemher 24, 1982, the
General Assembly included the item in its agenda and allocated it to the Special
Political Committee29l • The latter adopted draft resolution III, which reads a<; follows:
285 See UN DO<'. A/AC 105/94, supra note 281, at 13 and 16; See also Reporl of the Commitlee on the Peaceful Uses of Outer Space, supra note 282 at 16; Christol, Carl O., The Modern InlcrnatÎ(Jnal Law of Outer Spacc (New York: Pergamon Press, 1982) at 87-88.
286 See UNGA-res. 2777 (XXYI), supra note 284. 287 See art. XXIY para. 3 of the Convention, supra note 5. 288 See supra noie 5. 289 See Annex 10 UNGA-rcs. 2771 (XXYI), supra note 284. 290 See UN-Doc. A/37/141 of March 25, 1982. 291 See UN Doc. A/37/646 of November 29, 1982, al 2.
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Internatipnal Responsibility and Liability Paae73
The General Assembly,
Reaffirmin,i the importance of international co-operation in the field of the exploration
and peaceful uses of outer space, including the moon and other celestial bodies, and of
promoting the law in this field of human endeavour,
Takin& note with appreciation of the work accomplished by the Committee on the
Peaceful Uses of Outer Space, and in particular that of the Legal Sub-Committee,
Reco~nizin& that, in view of the considerable increase of activities in outer space,
effective international rules and procedures concerning liability for damage caused by
space objects continue ta be of great importance,
Havin& revicwed the Convention on International Uability for Damage Caused by
Spa ce Objects,
Notin& with satisfaction that to date seventy-two States have signed and sixty-two States
have ratified the Convention,
1. Reaffirmes the importance of the Convention on International Liability for
Damage Caused by Space Objects;
2. Invites aU States that have not yet done so to give urgent consideration to
ratifying or acceding ta the: Conventionm.
On December 10, 1982, the General Assembly adopted this resolution without a vote293•
It thus confined itself to advising States to sign the Convention. Up to now, a substantive
revis ion of the agreement has not taken place.
According to article XXVI of the Convention, the review should be made "in the light of
past application of the Convention"294• In view of the faet that so far there has only been
one daim under the 1972 Convention29S, a revision appears to be premature.
292 UN Doc. A/37/646 at 11-12. 293 Sec UN Doc. A!37/PV.100 of December 17, 1983, al 36. 294 See Annex to UNGA·res. 2n7 (XXVI), supra note 284. 295 Canadas daim again~t the Union of Soviet Socialist Republics for damage caused by Soviet Cosmos
954, text in (1979) 18 ILM 899-930. Tbe daim was based jointly and M!parately on the relevant international agreements, in particular the 1972 Liabilily Convention, and general principles of international law, sec (1979) 18 ILM al 905.
International Responsibility and Liability P/I&C 74
Today, the question whether its rules provide an adequate framework for the settlement
of daims anu disputes in this field of the law can be no more th an the topic of a
theoretical academic discussion. A revision will have to be postponed until there is
sufficient State practice to speak of past application.
3.1.5 The Registration Convention
The 1976 Convention on Registration of abjects Launched into Outer Space2')6 set up a
mandatory system of registTation of space objects launched into orbit and beyond297•
Besides effective management of traffie and enforcement of safety standards,
detectability of States liable for damage had been one of the reasons po!!ited for the
establishment of a central registry298. The public registry to be maintained hy the United
Nations' Secretary-General is now kept by the Outer Space Affairs Division of the
DepaTtment of Political and Security Council Affairs of the United Nations'
Secretariat299• Its existence helps to ensure the achievement of the goals that led to its
establishment.
3.1.6 The Moon Treaty
The most general Tecent space law agreement, the Agreement Governing the Activities
of States on the Moon and Other Celestial Bodies, was adopted in the General
296 See supra note 6. m The system is based on the voJuntary system establishcd by UNGA-res. 1721 (XVI) of Dccembcr 20,
1961. UNGAOR, Sixticth Session. Annexes. 298 See Matte, Nicolas Mateesco, AerQspaçç Law (:) Frym Scicntific Exploration to Commercial
UtilizatiQn (Toronto: Carswell, 1977) at 175. 299 See art. III, supra note 6. See also Matte, Nicolas Mateesco, ed., Space Activities and Emcr.uoi
Internalional Law, supra note 263, al 103.
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International Responsibility and Li ability Pue 75
Assembly on Oecember 5, 1979300, following long negotiations301• Only few States,
among them neither of the two space powers, the United States and the Soviet Union,
have ratified the Treaty so far302•
The provisions of the agreement do not contribute much ta the development of the rules
governing the international responsibility or Iiability of States for damage consequent to
activities in outer space. The first paragraph of article XIV reaffirms the principle set
forth in article VI of the Outer Space Treatf03. According to the second paragraph of
article XIV, States parties recognize that detailed arrangements concerning liability for
damage caused on the moon304, in addition to the provisions of the Outer Space Treaty
and the Liability Convention, may become necessary as a result of more extensive
activities on the moon. The Treaty provides for any such arrangements to be elaborated
when there is a review of the agreement305. The question of a review of the Treaty shaH
be incJuded in the provisional agenda of the General Assembly in 1994306•
3.1.7 The Level or Development Presently Reached
The above-mentioned s.pace law agreements307 have established a set of primary norms
with regard to activities in outer space. A breach of any of these primary norms is an
internationally wrongful act that incurs int\.. \l'\tional responsibility as its legal
JOO See supra Dote 7. 301 See Galloway, Eilene, • Agreement Governing the Aetivities of States on the Moon and Dther Celestial
Bodies·, (1980) 5 Annals Air & Sp. L. 481-508 al 491-492. 302 Sec supra note 7. 303 Sec supra Dote 3. 304 Provisions relating to the moon shall also appty to other celestial bodies within the solar system, other
than the Earth, except in so far as specifie legal norms enter into force witb respect lo any of these celeslial bodies; see art. 1 para. 1 of the Treaty, supra note 7.
lOS See arts XIV para. 2 and XVIII of the Treaty, supra note 7. 306 The Moon Treaty enlen"d ioto force on July 11, 1984. sec supra note 7. According to art. XVIII, the
question of its review shall he considered ten years after the agreement's entry inlo force. 307 See supra noie 3 to 7.
International Rç§ponsihility and Liability fil&ç 7<.1
consequence308• This is affirmed by article VI of the Outer Space Treat~ and
reaffirmed by article XIV of the Moon Treatyllo.
Article VII of the Outer Space Treaty does not constitute the first legally binding
codification of international liability for damage caused by space ohjects. While the
wording may suggest that the provision has such import, a look at the Liability
Convention as weil as a consideration of not on)y the deve)opment of rules concerning
responsibility and liability for damage caused by space activities, but also the nature of
th(~ Outer Space Treaty's provisions, reveal that the nQtion of liahility in the Outer Spare
Treaty can - applying the I.L.c.'s diction3J1 - only be State responsibility or financial
li abili ty.
Neither in the Outer Space Treaty, nor in the Liability Convention '\12 are the terms
responsibility and liability used in a way consistent with the I.LC.'s terminology.
However, the Liability Convention provides for two distinguishable schemes of
responsibility or Iiability depending on where the damage occurred. While a launching
State shaH be" absolutely liable ... for damage caused by its space ohject on the surface
of the Earth or to aircraft in tlight"3l3, il "shall be liable only if the damage is due to it!l
fault or the fault of persons for whom it is responsible" in the event of damage being
caused elsewhere than on the surface of the Earth3l4• The reference to fault in article III
is an unambiguous hint al State responsibility. since the notion of fault is alien to the
concept of Iiability for risk or, in the I.L.C:s diction, Iiability for injurious consequences
arising out of acts not prohibited by international law. Thus, article III consists of a
3(,6 See supra 2.1.2.1. 309 See supra note 3. 310 See supra note 7. 311 See Pinto, M. C. W., "Rcflections on International Liability for Injurious Consequences Arising ouI of
Acts not Prohibitcd by International Law" (1985) XVI Netherl. Y. B. Int'I L. 17-48. 312 See supra note 3 and 5. 313 See arts JI and VI para. 1 (a) of the Convention, supra note 5. The restriction to damage causcd on
Earth or in atmosphere stems from the 1962 U.S. proposals for an agreement on liability for space vehicJes accidents, sec supra note 246.
314 See arts 111 and IV para. 1 (b) of the Convention, supra note 5.
f
International Responsibility and LiabililY PqeTl
primary and a secondary norm3l5• The primary norm is an obligation to prevent a
particular result31b, namely to cause damage to other space objects or to persons or
prope.'ty on board su ch a space object. The secondary norm specifies the Ipgal
conse'1uence in case the primary norm is breached; State responsibility shaH only be
incurred if the launching State, i. e. the State that committed the internationally
wrongful act, was at fauJt317•
Seeing that the LiabiJity Convention, an agreement concluded in 1972, provides for
"strict" or "absolu te" liability318 only in the event of damage caused on the surface of the
Earth or to aircraft in flight, article VII of the Outer Spa ce Treaty, a stipulation dating
from 1967, cannot be interpreted as to assert the principle of international liabiJityll9.
Could such meaning be attached to article VII, the Uability Convention would have
been a step backwards in the development of spa ce law. Moreover, ail the provisions of
the Outer Space Treaty are formulations of principles of so high a level of generality
that they are neither comprehensive nor susceptible of precise application. With regard
to responsibility and liability, the Treaty lacks the establishment .Jf judicial or
administrative procedures for resolving disputes. In view of the imperfection or
inadequacy of the Treaty's provisions, it is doubtful whether a claim couJd be based on
articles VI and VII alone; the expectation of securing compensation wû .. I1d be at best
obscure and at worst slim320•
The Liability Convention, which - using the I.LC.'s terminology - should be called
"Convention on the International Responsibility and Uability for Damage Caused by
Space Objects", provides for liability and for responsibility, depending on where damage
315 On the notion of prirnary and secondary norms see supra nole 113. 316 See supra 2.1.2.1 and 2.1.3.3.3. 317 On the notion of fault see supra 2.1.2.3. 318 See supra note 212. 319 See Cheng, Bin, "The 1967 Space Treaty" (1968) 9.5 J. Dr. Int'1532-644 at586; Goldsclltmidt, Jürgen,
supra note 15, at 156-160. Goldschrnidt holds the view that art. VII does not contain the principle of liability sine dclic!Q. Having scrutiniLCd the "travaux préparatoires·, be cornes to the conclusion that art. VII is a norm which serves as a basis for responsibility, but does not specify any of th(~ modalities.
320 Compare Reis, Herbert, ·Sorne RcOcctions on the Liability Convention for Outer Sp:ace· (1978) 6 J. Space L. 125·128 at 126.
1
International Responsibi1ity and Liabili!y PIiC 78
occurred. With regard to liability, it is the first legally binding document in this field of
law. The Convention comprises secondary norms concerning joint and several
responsibility and liabilityl21 as weIl as circurnstances precluding wrongfulnessm. it also
contains a set of tertiary norms, establishing a procedure for resolving disputes and
settling c1aims323•
3.2 International Responsibility and Liability Pursuant to the Liability Convention
3.2.1 The Scope of the Convention
The Liability Convention is applicable when damage is caused by a space object. Thu~.
the definition of the terrn "spa ce object" determines the Convention's scope with regard
to the subject-matter.
The term is generally understood as to describe any man-made object originating from
the Earth and designed for use in outer space324• In the Convention, it is defined to
include a space object's component parts as weil as its launch vehicle and parts
thereof32S. This definition is rather vague and incomplete.
There is, for instance, sorne question as to whether it covers a space station, especially if
the latter is permanently installed on the moon or another celestial body. During the
negotiations in COPUOS' Legal Sub-Committee preceding the adoption of the draft
Convention, there appeared to be unanirnity on "spa ce objects" to denote a device
321 Sec arts IV and V of the Convention, supra note 5. 322 Sec art. VI of the Convention, supra noie 5. 323 See arts VIn to XXII of the Convention, supra note 5. 324 See Gorove, Stephen, "Cosmos 954: Issues of Law and Policy" (1978) 6 J. Space L. 137-146 at 141. For
an elaborate study on the notion of ·space object" sec Staubacb, Rainer, lJciTiff und Rechtsstellun& des WeltraumfahrzeUiS (Dissertation, Wurzburg, 1971) al 19-63.
325 Sec art. 1 (d) of the Convention, supra note 5.
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International Resnonsibility and Liability Pue 79
designed for movement in outer space326• This notion would excJude damage caused by
space stations from falling within the scope of the Convention. It is, however, consistent
with the general usage of the term to understand space stations, which arc man-made
objects used in outer space, as being included in the definition327•
A Iikewise pending question - of particular interest to private enterrrises - concems
payloads of space objects. It has been argued that the definition of "spa ce objectIf and the
"travaux préparatoires" support the conclusion that damage caused by a space object's
jlayload is covered by the Convention328• On the other hand, the wording of the
definition laid down in the Convention suggests rather the opposite. A "compone nt part"
is a constitutive part. Unlike other parts of a space object, the payload is exchangeable
and variable. lt cannot be considered to be an essential element; a space object is still a
functioning space object without the payload. Keeping this in mind and drawing an
analogy to, for example, the cargo of a truck, it seems far-fetched if not impossible to
construe payloads as component parts.
The inaccuracy and incompleteness of the definition of "space objectIf in the Liability
Convention is particularly deplorable in view of the fact that no other international
agreement defines the term.
326 See the Hungarian draft, UN Doc. A/AC.I05/C.2/L.10/Rev.l and Corr.I: "Space object means space ships, satellites, orbital laboratories, containers and any other devices designed for movemenl in outer space and sllstained there otbcrwise Ihan by the reaction of the air as wcU as the means of delivery of sub-objects and any parts thcreof.". Compare also the dermition in the Italian draft, UN Doc. A/AC.105/C.2/L.40/Rev. 1. Sec also MaUe, Nicolas Maleesco, Aerospacç Law 1:) From Scientific Ewloration to Commercial Utili7alion, supra note 298, at 156; Craft, Randal R. Jr., "New Commercial Launch Industry Faces a . --oduci-Liability Vacuum" (1987) Nat. L. J. 22 and 27, al 22.
327 ln scrutinizing the legal regime gC'verning a space station or space colony on Mars, Vitt apparently presupposes the applicability of the Liability Convention; see Vilt, Elmar, Die MarskolonjeI;l Reçhtsfra~cn der Planctcnhesiedclun& (Dissertation, Kôln, 1989) at 244-246 and 263. Tbe applicability of the Liability Convention to space stations is a1so presupposed in arts 16 and 17 of the Accord relatif à la coopération en matière de conceplion détaillée. de développement. d'exploitation et d'utilisation de la station s,patiale civile habitée en permanence. signed at Washington on September 29, 1988, (1989) 93 Rev. gén. dr. int'I 505-529. Compare Lafféranderie, G., "Les Accords relatifs à la Station Spatiale Internationale" (1989) 93 Rev. gén. dr. int'I 317-384 at 366-369.
328 Sec Matte, Nicolas Matccsco, Aerospacç Law 1:) From Scienlific Exploration to Commercial Utilization, supra note 298, at 157.
1
International Responsibility and Liability PiI&C 80
Ratione personae, the Convention does not apply to damage caused by a space object of
a launching State to nationals of that launching State or to foreign nationals during such
time as tbey are participating in the operation or as they are in the immediate vicinity of
a planned launching or recovery area as the result of an invitation by that launching
State3Z9•
The former is no more than the repetition of a basic principle of public internationallaw
which, unless exceptional circumstances are given, refrains from interfering with
relations between a State and its nationals330•
The latter is an application of the principle volenti non fit iniuria3J •• As to foreign
nationais taking part in another State's space operation, it is evident that they are under
the launching State's authority and control. Ils national legislation shall therefore he
applied to them. As for persons invited to be in the immediate vicinity of a launching or
recovery area, they must be considered as having accepted of their own volition to slay
in these are as, which afe under the control of the launching State and covered by its
nationallegislation332•
329 See art. VU of tbe Convention, supra note 5. 330 Sec Cheng, Bin, "International Liability for Damage Caused by Spa cc Objects·, Jasentuliyana,
Nanéasiri and Roy S. K. Lee, eds, Manual on Spacc Law, vol. 1 (Dobbs Ferry, New York: Occana, 1979) 83-172 at 101; Foster, W. F., "The Convention on International Liability for Damage Caused by Space Objects" (1972) X Cano Y. B. In!,1 L. 137·185 at 147-148. In note 38, Fostcr examines tbe "travaux préparatoires· conccrning art. VII of tbe Convention and discusses the problcm of dual nationality.
331 See Cheng, Bio, "International Liabilily for Damage Causcd by Space Objects·, supra note 330, at 101; Foster, W. F., supra Dote 330, at 148.
332 See Bogaert, E. R. C. van, Aspects of SJ>ace Law (Deventer: KJuwer Law and Taxation, 1986) al 164.
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International Responsibitily and Liabilily Pue 81
3.2.2 Uability
3.2.2.1 The Rasis or Liability
Pursuant to articles Il and IV (1) (a) of the Convention, launching States shaH be
absolutely ]jable for damage caused by their space objects (n the surface of the Earth or
to aircraft in flight333•
In these provisions, the term "]jable" can be said to have the same notion as in the
International Law Commission's terminologyl34. Thus, ail a cIaimant has to prove is that
it sustained damage af1d that the launching Stale's space object was the cause for the
occurrence of the damage335•
The desirability of establishing the principle of international liability for damage caused
by space objects was hardly discussed in COPUOS' Legal Sub-Committee; its members
agreed on it aimost unanimously from the very beginning and it was part of aIl drafts336•
3.2.2.2 Exoneration from Liability
A launching State held absolutely liable shalJ only be able to avail itself of exoneration
to the extent it establishes that the damage in question resulted who))y or partially from
333 Sec arts Il and IV of the Convention, supra note 5. 334 See supra note 15. 335 Sec the I.L.e.'s draft articles on "Intcrnationalliability for injourious consequences arising out of
activities not prohibited by intcrnalÎonallaw", ::'.Jpra 2.2.3.2.1. 336 Sec, for example, a rcviscd proposaI submitted by the Indian delegation, UN Doc. A/AC.105/45 al 69.
The proposcd art. Il para. 2 rcads: "The claimaot shall only he rcquired to furnish evidence relative to the connexion betwcrn the damage suffcred by it and the space object in question.". Most space lawycrs had codorscd the idca of liability for risk from the very heginning; see Gal, Gyula, Space Law (Leydcn: Sijthoff, 19(9) at 244, note 41.
l
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International Responsibility and Liability
gross negligence or from an act or omission done with intent to cause damage on the
part of a clairnant State or of natural or juridieal persons it representsJ37•
This stipulation is similar to provisions in regimes providing for liability sine deljçto in
municipallegal systems338 as well as to the restricted range of modes of exoneration olS
described by international jurists in treatises on international liability for risk339• The
concept of liabiIity is based on the extrem]y hazardous character of the activity for which
il is provided340 and on the practical irnpossibility of proving fault341• If the victim itself
commits gTOss negligence or acts with the intent to cause damage, the ratio iuris
underlying the concept is missing and it can no longer be ai>plied. Besides, there is a
generai principle to the effeet that ~ and ~ may not be of advantage to the
subject of law that comrnitted them342• Finally, to the extent that the occurrence of
damage is due to the victim's faulty way of acting, the causal nexus between the damage
and the launching State's activity - a prerequisite for Iiability to be incurred - is broken.
No exoneration shall be granted if the damage resuIted from a launching State's activity
not in conforrnity with internationallaw.
Seeing that liabiIity is a concept applicable only to lawful activities, this provision seems
to be superfluous. However, a look at the "travaux préparatoires" gives sorne clue as to
why it was included in the Convention. "Activities ... not in conformity with international
law including, in particular, the Charter of the United Nations ... " was meant to refer to
the use of spy satellites. The draftsmen of the Convention intended to take account of
the problem of espionage from outer space by stating dcaily and beyond doubt that
337 See art. IV para. 1 oC the Convcntion, supra note 5. The Hungarian draCt, supra note 326, which was supported by Polaod, UN Doc. A/AC.105/C.2jSR.78 at 17, conlained a provision Cor exoneration in the evcnt of circumstanccs which arc beyond anyone's control ("force majeurc·). Howevcr, a majority oC the dclegatioos wcrc of thc opinion thatthc hithcrto unknown natural risks in outer spacc should he borne by the States engaging in space activities rathcr than the potcnlial V1clims.
338 Sec supra 2.2.1, especially note 189. 339 S 340
ee supra 2.2.2.4. Sec supra 2.2.1.
341 AImost certainly, the victim of damagc causcd by a satellite plunging ooto the surface oC the Earth will he unablc to provc any kind of Cault on the launching State's !.idc, because the latter surveys launcb and tlight WÎth maximum care and precision. Compare UN Doc. A/AC.l05jC.2/SR.78 at 10.
342 Sec Bogaert, E.R.C. van, supra note 332, at 168.
International RcsponsibililY and Liability Pue 83
States involving in such activities are subject to a liability so absolute that no mode of
exoneration whatsoever is available343.
3.2.3 Respon si bilit y
3.2.3.1 The Rasis of Responsibility
ln the event of damage being c:aused elsewhere than on the surface of the Earth to a
space object of one launching State by the space object of another launching State, the
latter shaH be Hable only if the damage is due to its fault344•
The first drafts submitted to COPUOS' Legal Sub-Committee had prescribed liability
sine delicto for any damJge consequent to space activities34s. In the course of the
negotiations, however, it was argued that liability might not be an adequate and just
solution to the problem of harm caused by the collision of two space vehicles. If a small
rocket launched by a third-world country collided with a highly developed, expensive
spacecraft of an industrialized nation, the latter might be held liable to paya relatively
small amount of compensation, while the poorer State would probably end up having to
pay an amount hardly affordable for it. Also, large space objects would be manned.
Thus, human error would be ascertainable and fauIt could be proven346•
While the situation in the event of collision is obviously different from that of innocent
bystanders suffering damage, the suppositions underlying the stipulation of "fauIt-based
liability,,347 for damage caused elsewhere than on the surface of the Earth are
unfounded. In view of the inconceivable multitude of technical devices employed to
~C3 The Indian dclcgalion evcn proposed the introduction of punitive damages: States using outer space for "unlawful purposes· should have to pay double the amount of compensation due. Sec UN Doc. AjAC.I05/C.2ISR.n at 12.
J44 See arts III and IV para. 1 (b) of the Convention. supra note 5. 34S See the American proposais, supra note 246, the Bclgian proposaI, supra note 248, and the Hunganan
proposa L, supra nole 249. 346 See the argument of the Italian delcgate, UN Doc AI AC.I05jC.2jSR.79 al 10. 347 Applying the I.L.C.'s terminology, the term refers to fault-based Slale responsibility. See supra 3.1.7.
International Responsibility and Liability
ensure a space object's perfeet launch and navigation, it is practically impossible to
prove that damage was caused by the faulty behaviour of a crew-member or any other
human being entrusted with the mission's success348•
3.2.3.2 Exoneration from Responsibility
The Liability Convention does not contain any provIsion concerning modes of
exoneration available to States held responsible under article III or article IV (1) (b);
article VI is only applicable to cases othenvise incurring absolu te liability pursuant to
article II and article IV (1) (a)349.
ft could be argued that exoneration shaH thus not be possible in the event of damage
having been caused to a space object elsewhere than on the surface of the Earth.
Seeing that the concept of liability sine delicto is per definitionem stricter th an that of
State responsibiliry350, this conclusion seerns paradoxical. If exoneration may - even - be
granted to aState held absolutely )jable, one rnay concIude a maiore ad minus that a
State held internationally responsible must be allowed to exonerate itself, too.
The solution to the dilemma may be found in the type of responsihility stipulated in the
Convention. In the event of damage having been caused to another State's space ohject
elsewhere than on the surface of the Earth, it is not the cau~al link between the
launching State's space activity and the damage alone that gives fise to State
348 See Goldschmidl, Jürgen, supra note 15, at 173-174. Goldschmidt draws an analogy to the collision of ships. Allhough faulty bcha .. iour of naval oflicers should he casier 10 idcntlfy lhan that of astronaub, the Convention pour l'unification de ('ertainc~ Règles en Matir.!!;. d'Ahorda~, a convention signed in 1910, already take~ account of the dlfficulties in asccrtaining fauh in the evcnt of two .. hips collidmg: if the collision was causcd by coincidence or force majcuf'~, or if lhere is ullcertainty wlth regard to the causes for the coUi~ion, each party has lo come up (or the damage il sw,tained. Sec art JI of the ~id convention, text in (1%9) 26 Verlrag,>sammlung AA, Serie A, 322-33'3 (Nf. 3(,1) The Convention wa.:, signed al Brus!>cls on Scplcmbcr 23, 1910, and entered into force on March 1, 1913. As of Dcccmbcr 31, 1989, it was in force fOf 43 States, sce BGB!. Teil 2, Fundstellcnvefl'-cichnis B.
349 For the tex! nf the Convention see supra note 5. 350 Sec supra 2.2, especially 2.2.3.2.
1
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International Responsibility and Liabi1ity PueSS
responsibility; fault is an additional prerequisite. The view may be held that whenever
the requirements for one of the traditional modes of exonerationlSl are fulfilled, the
occurrence of damage cannot be "due toIt the launching Sta~e's fault. Thus, a specifie
provision regarding exoneration in cases of State responsibility would be of declaratory
character only and could therefore be omitted.
Another possible explanation for the lack of sueh a stipulation is that what is being
prescribed in articles III and IV (1) (b) of the Convention is an estab1ish~d concept in
public international law352• Reference to the concept could be interpreted as reference
not only to the basis of responsibility, but to the concept as a whole, including rules with
regard to exoner:}tion. This, too, would render a specifie provision superfluous.
3.2.4 Presentation of a Claim
3.2.4.1 The Claimant
States only may present daims for compensation under the Liability Convention153•
In aeeordanee with general public international law, aState may present daims 10
respect of damage done to its territory, property or nationals; the latter may be natural
or juridical personslS4•
The Liability Convention being a victim-oriented internatior.al agreement, the scope of
a State's diplomatie protection is extended beyond its own nationals. To ensure that ail
victime; of damage eaused by space objeets have equal possibilities of recovering
compensation, aState may also present a daim for damage to
351 See supra 2.1.2.5 and 2.1.3.3.5. 352 See supra 2.1.2. 353 See art. VIII of the Convention, supra note 5, paras 1 to 3 respcctively: ·A Stale ... May present ... a
daim ......... anotber State May ... present a daim .... , .... anotbcr State May ... present a claim .. .". 3S4 Sec art. VIII orthe convention, supra note 5. On the nationality of daims sec O'Conncl~ D. P.,
International Law, vol. Il, 2nd cd. (London: Stevens & Sons, 1970) al 1032-1039; Verdross. Alfred and Bruno Simma, supra noie 35, at 878. Compare also supra 2.1.2.6.2 .
1
1
Intermtlional Responsibility an~ Lial:!i,!.!,llit ..... y __________________ --I.P....lla&61e"-J86ol!1l
- foreign nationals where they sllstained damage in its territory pmvided that their State
of nationality has not presented a daim, and
- foreign nationals perm".nently resident in its territory provided that neither their State
of natiolJaJity, nor tht~ State in whose territory they suffered the damage have
presented a c1aim or notified their intention of presenting onelS5•
Thus, a stateless victim, who would not be eligible for diplomatie protection under
general public international law, may have his claim presented through either the
territorial State or the State ofwhich he is a permanent resident356•
Article VIII appears to establish a certain hierarchy with regard to the three States
which may present a daim: the national State, the territOl ial State and the State of
permanent residence. If the national State has presented a daim, the other two may no
longer do so; if the territorial State has presented a claim, the State of permanent
residence is to refrain from doing so. However, since no limit is set in the Convention
with regard to the time that has to elapse before aState lower down in hierarchy may
take action, it seems that nothing can prevent the State of permanent residence as the
one lowest down in hierarchy from pre-empting the precedence by jumping in first with
it~ claim. No provision in the Convention is addresst:d to the conflict which may arise if
the State of permanent residence has taken action and either of the twu State: higher up
in the hierarchy subsequently wish to present a claim. The question whether they are
then preciuded from doing so, or whether the State of permanent residence is obliged to
withdraw its claim is unresolved157•
Another issue which has attracted scholarly attention is whether a claimant State has to
be a contracting State to the Convention158• The wording of the Convention, carefully
avoiding the terms "contracting State", "State party to the Convention" or "contracting
15S See art. VIII paras 2 and 3 of the Convention, supra noie 5. 356 Compare Cheng. Bin, "International Liabilily for Damage Caused by Space Objects·, supra note 330, at
100; Fosler, W. F., supra noie 330, al 169; Matte, Nicolas Mateesco, Aerospace Law (;] From Scientific Exploration to Commercial Utilizalion, supra note 298, at 165.
157 On lltis issue see Fosler, W. F., supra note 330, at 169; Cheng, Bin, "International Liability for Damage Caused by Space Objects", supra note 330, al 100-101.
158 See Bogaert, E. R. C. van, supra Dole 332, al 180.
1
International Responsibility and Liability rue 87
Party", may suggest that the agreement is addressed to aIl States359 and aIl States may
therefore choose to avail themselves of the daims procedure il establishes. However,
such an interpretation conflicts with the principle pacta tertiis nec prosunt nec nocent3(·o.
Thus, ratification of the Convention is a !lrerequisite for the presentation of a daim
under its provisions361
Where damage has been caused to an international organization which has declared its
acceptance of the rights and obligation; provided for in the Convention362, any daim for
compensation is to be presented by aState member of the organization which is aState
party to the Convention363•
3.2.4.2 The Respondent
Where a daim for compensation tor damage caused by a space object is notified, the
respondent is "a launching State"364. Adhering to the definition of the term "Iaunching
State" laid down in the Outer Space Trea~, the Convention identifies four categories
of States which may simultaneously qualify as launching States, namely
- the State which launches the space object,
- the State which procures the launching,
- the State from whose territory the space object is launched, and
- the State from whose facility it is launched366•
359 See Cheng, Bin, ~International Liability for Damage Caused by Space Objects', supra note 330, al 94-98.
360 On lhis principle Roxburgh, Ronald F., International Conventions and third States (London. Longmans, Green, 1917).
361 See Cheng, Bio, "International Liability for Damage Caused by Space Objects', supra note 330, at 101. 362 See art. XXlI para. 1 of the Convention, supra note 5. 363 See art. XXII para. 4 of th~ Convention, supra note 5. 364 See art. VIII of the Convention, supra note 5: W A Slate ... may presenlto a launching Slate a daim for
compensation ... W.
36S See art VU of the Outer Space Treaty, supra note 3. 366 See art. J lit. c of the Convention, supra note 5.
International Respon5ibilily and Liability Paae88
Where an international organization is presumed responsible or liable for damage
caused by a space object, a daim shaH be presented to the organization367• Dnly if a
period of six months has elapsed without the organization having paid a sum agreed or
determined to be due as compensation may a claimant take action against those
member-States of the organization which are also parties to the Convention368•
3.2.4.3 Presentation through Diplomatie Channels
The first step towards the settlement of a daim is diplomatie action; a claim for
compensation for damage "shaH be presented to a Jaunching State through diplomatie
channels"369.
If no diplomatie relations exist between the launc11ing State and the victim State, the
latter May request a third State which maintains such relations with the launching State
to present the daim or otherwise represent ils interests under the Convention370•
Finally, a c1aim May be presented through the Secretary Ceneral of the United Nations,
provided both States involved are members of that organization371•
3.2.4.4 Time Limitation for the Presentation
A daim may be presented no later th an one year foaowing the date of the occurrence of
damage, or the date on which the victim State came to know of the occurrence of
367 See art XXJl para. 3 lit. a of tbe Convention. supra note 5. 368 See art. XXII para. 3 lit. b of the Convention, supra note S. 369 See art. IX of the Convention, supra noie 5. 370 See art. IX of the Convention, supra note 5. 371 Sec art. LX or :be Convention, supra note 5. This provision was introduced upon a proposai by the
United Arab Republic one day bcfore tbe final drafl of the Convention was adopted by the Legal SubCommittee, see UN Doc. AjAC.l05j94 al S.
1
1
. '
International Responsibility and Liahility Paec 82
damage, or the date on which the launching State was identified372• AState is precluded
from presenting a claim if one year has passed sinr.e the date on which it could
reasonably have been expected to have learned of the facts concerning the occurrence of
the damage or the identification of the launching State through the exercise of due
diligence373• The afore-mentioned time Iimits being applicable even if the full extenl of
the damage il) not known, the c1aimant State shall in such ca"es be entitIed 10
subsequently revise the initial daim and submit additional documentation until one year
after the full extent of damage is known374•
On the one hand, the provisions take account of the fact th.!t damage may occur wilhout
the victirn State noticing it or without it being able to a'lcertain its extent as weIl as of the
difficulties a potenti?1 c1aimant may have identit)ing the launching State or States. On
the other hand, they ensure that the respondent knows within a reasonahle period of
time which daims it has to deal with and what they amount to.
3.2.4.5 Exhaustion of weal Remedies
Under general public international law, aState may present a daim against another
State in respect of damage allegedly suffered by its nationals only if the latter have
aIready exhausted aIl remedies available in the other State375•
The Liability Convention dispenses with this requirement without depriving the claimant
State and the natural or juridicaJ persons it lT12.y represent of the opportunity of resorting
to sueh remedies where they exist. An international c1aim through diplomatie channels is
372 See art X pan:.. 1 of the Convention, supra nole 5. 373 See art X para. 2 of the Convention, supra Llole 5. 374 See art X para. J of the Convention, supra notè 5. 375 See, for instance, the P.C.lJ.'s decision in the case MavrommalÎs Palestine Con~QIDi, supra noIe 91,
at 12, and the I.CJ.'s judgment of March 21, 1959, in the In'erhandcl Case, Switz..crland v. Uniled States of America, (1959) I.CJ. Reports 6-125 al 26-29, espccially al 27. Sec al..o Cançado Trindadc, A. A., "Exhaustion of Local Remedies in International Law and the Rote of National Courts· !19n /78) 17 ArchVR 333-370; O'Connell, D. P., supra Dote 354, at 1053-1059; Verdross, Alfred and Br',":o Simma, supra note 35, al 882-886 .
ft
lnW.rniltional Re;,ponsibility and Liability
admissible irrespc;ctive of whether or not the damage is irremediable at the respondent
State's own instance through the agen<-)' of its own la~76. A State or one of its nationals
may, however, chaose to pursue a daim in the courts or administrative tribunals or
agencies of the launching State377 whose domestic law ma v be more generous in Ît!l
treatment to the victim than internationallaw. If a victim adof,ts this course of action, it.
shaH not be entitIed to simultaneous presentation of a daim nnder the Convention ~n
respect of the same damage378• If, however, a c1aimant has rewrted to local remedies
and found them wanting by international law standards, a sub.\equent presentation in
accordance with the terms of the Convention must be permitted31\
3.2.5 Compensation for Damage
3.2.5.1 The "Applicable Law"
The 1972 Liability Convention had two principal functions: firstly, it was to specify the
conditions under which liability is to be assessed and compensatiun paid, and secondly, it
was to provide for a procedure whereby disputed claims may be considered and
determined38O•
The issues relating to the former function proved to be difficult to negotiate. Because of
the differences in tort and daims law of the various lega} systems represented in
COPUOS, there were nurnerous distinct standpoints and perspectives with regard to
questions concerning the standard of compensation. Soviet domestÏc law, for exampIe,
approaches the problem of compensation principally in the context of institutional costs
376 See art. XI para. 1 of the Convention, supra D~te 5. 377 See arl. XI para. 2 of llôe Convention, supra note 5. 378 See art. Xl para. 2 of the Convention, supra nOie 5. 379 See Cheng, Bin, "International Liability for Damage Caused by Spa ce Objeets", supra note 330, al 135;
Matte, Nicolas Maleesco, ACfosvace Law [:] From Scientific Ey>loration to Commercial Utilizalion, supra note 298, at 168. Of diffcrent opinion is Bogaert, E. R. C. van, supra note 332, at 181-182.
380 See C'hri<;I()I, Carl O., The Modern International Law of Outer Space, supra note 285, al 91; Deleau, Olivier, "La Convention sur la Responsabililé Internationale pur les Dommages Causés par des Objets Spatiaux" (1971) XVII Ann. Fr. Dr. lot'I 876-888 al 882.
International Resp\'nsibility and Liability P'liC 91
rather than personal loss to the individual, which would be the starting point for the law
of the United States as weil as that of most Western legal systems '\81. Ir] view of the at
times diametric attitudes, th~ question of the "applicable law" was a crucial one3R2• 11lÎs
is reflected in the amount of "applicable law" proposaIs, which the Legal Sub-Committee
had to consider; a review of the negotiating history of the Liahility Convention disc1\l!.ed
a summ~ry prepared for the United States' State Department that contained twenl.y-two
single-spaced typewritten pages of such proposals383•
The proposaIs offered to the Legal Suh-Committee SliOW the divergence of pO!lition!.
preferred by various States. The United States consistently favoured reference tu the
"applicable principles of international law, justice and equity" to provide the measure of
damages384• According to the Belgian draft, compeasation should be "asse~sed under the
national law of the person injured (Jex patriae), or, if not, under applicable principles of
international law"385.
Toe French delegation suggested a further system of applicable law, namely the law of
the place where the damage occurred (lex loci delicti commissi)386. This solution, which
deemed any nationallaw applicable, was soon recognized as preferable tn any other by
ail but the socialist States387•
However, none of the suggestions appeared to be the optimal answer to the question
which law should apply. Ali solutions designating national law to determine tht' measure
of damages had the same substantial dîsadvantages: they did not cnsure a sufficient
381 Bosco, J. A., Liabiliry for Outer S{!ace AClivilies • A United States Persvectivc (LL. M. Thcsis, Faculty of Graduate Studies and Research, McGiII Univerl>ity, 1985) (unpubhshedJ al 43-44; Christol, CarlO, The Modern International Law of Outer Spa cc, supra note 285, at 100; Hosenball, S. N.:il, ·Spacc Law, Liability, and Insurable Risks· (1976-1977) 12 Forum 141-154 al 150.
382 For a very good example showing the practical side of this issue, see Reis, Herbert, "U.S. Discusses 'Applicable Law' for Outer Space Claims", Statement made in the U.N Committce on the Pcaœful Uses of Outer Space on Nmcmbcr 20, 1970 (1970) 62 Dep't St. Bull. 18·20.
383 Hosenball, S. Neil, supra note 381 al 150. 384 See UN Doc. AjACJ05jC.2jL.58, art IV. 385 Sec UN Doc. A/ AC.105/C.2/L.7 /Rev. 3, art. 2. 386 Sec UN Doc. A/AC.IOS/C.2 'SR.91 al 8. 387 See Cheng, Bin, "1rlternaflOnal Liability for Damage Caused by Spaœ abjects·, supra note 330,83·172
a1123.
~I
International Responsibihty a.ld Liability Paie 92
degree of desirable uniformity. While they might sometimes involve the application of a
number of different laws for the same accident, it would at other times be difficult to
determine the t;ompetent la~.
The application of the lçx patriae might create problems if there was a plurality of
victims of various nationalities. The application of the victim-oriented lex loci deliçti
çommissi could be difficult in cases where the accident involved aircraft or spacecraft in
flight. It migh~, in fact, render the regulation of a measure of damages purely a m:!Her of
chance. The Soviet proposaI, which provided for the application of the law of the
launching State, was refused by almost a1l other delegations since it could lead to the
favouring of the interests of this Stat~ ~'ather th an the victim389•
During the Legal Sub-Committee's 1971 session, after the Soviet delegation had refused
a muIt:tude of proposaIs made by Western co!.mtries and there seemed to be no way to
find a compromise, the representative of the United States unexpectedly hnnounced that
the American delegation was willing to accept the principles of public internatlOnallaw,
justice and equity as applicable law, if the Soviet delegation gave its consent to certain
provisions concerning the seulement of c1aims and disputes3'>'O. Once the Soviet U'lion
had accepted that, the other members of the Sub-Committee also agreed to proc/!ed
along the lines of what had originally been a United States' proposaI of October 23,
1964391, and had, at the time, received a fair amount of criticism. It had been argued that
388 Rajski, J., ·Convention on International Liability for Damage Caused by Space Objects Including Weathcr Control from Outer Space", published paper prcsented al the Twelfth CoUoquium on the Law oC Outer Space, Mar dei Plata, Argcntina, October 5, 1969, 10 Octobcr 10, 1969; Schwartz, Mortimer D., ed., Proccedin"s of the Twclfth Colloguium on the Law of Outer Spa ce, Intemalionallnstitute oC Space Law of the International Astronautical Federation, (Davis, CaliCornia: University oC CaliCornia Schoot of Law, 1979) 69-77 at 74.
389 See Dclcau, Olivier, supra note 380 at 882; sec a1so Nanda, V. P., ·Liability for Spacc Activities' (1969) 41 U. Colo. L. Rev. 509-528 at 520, Reis, Herbert, supra noie 382.
390 See UN Doc. A/AC.105/94 of July 8,1971; sec aIso Deleau, Olivier, supra noie 380, al 886; Poulantzas, Dionyssios M., ·Sorne Remarks on the Convention on International Liability for Damage Caused by Space Objects", published paper presented al the Fifteenth Colloquium on the Law of Outer Space, Vienna, Austria, Oclober 8, 1972, to October 15, 1972; Schwartz, Mortimer D., cd., Proceedini$ of the Fiftcenth CQlloQuium on the Law of Outcr Space, International Institute of Law of Space Law of the International Astronautical Federation, (Davis, CaliCornia: University of CaliCornia School of Law, 1973) 130-133 al 130.
391 See UN Doc. AjAC.IOSj21, Annex 2 of OctOOer 23,1964, at2.
•
International Rcs[lonsihilil)' and Liahilily Pue 9J
the formulation lacked precision with regard to the actual criteria to be applied392•
Besides, it had been pointed out that a di~advantage of this solution would be ilS
incompleteness: neither space law as the lex specialis concerned, nor general
international law provided for a comprehensive system of rules on the a~~e~sment of
damages393• In 1971, however, the majority of the delegatinns expre!\~ed their
dissatisfaction with the formulation, but did not want to jeopardize the compromise that
had finally been reached394•
Internationallaw and the principles of justice anG equity being the "applicable law", any
problem arising in connection witb compensation is to be examined and decided
exclusivel)' in accordance with international law and the said principles; national
legislation may not be referred t0395• Nevertheless, domestic law may, somewhat
furtively, be of relevance: general principies of law recognized by ail civilized nations in
fOTO domestico, i. e. principles providing the ba.~is of national laws a.~ weB as guiding,
undisputed principles396, are mentioned in article 38 (1) (c) of the Statu te of the
International Court of Justice as a source of law to be appIied by the Court. Thi!ol
provision being a codification of an established practice of arbitral tribunals, il is part of
customary intcrnationallaw397• Bence, it is applicable wherever and whenever a decision
is made and internationallaw is invoked.
392 See Reis, Herbert, supra note 382, at 19. 393 See Rajski, J., supra note 388, at 74. 394 See Deleau, Olivier, supra t.ote 380, at 836. 395 See Patermann, Christian, • Interpretation of Sorne Articles of the Convention on International Liability
for Damge Causcd by Space Objects·, published papcr presentcd at the Fiftcenth Colloquium on the Law of Outer Space, Vienna, Austria, Oclobcr 8, 1972, to Oclobcr 15, 1972, Schwart/.., Mortimer D., ed., Proceedin~s , .. the Fiftccnth Colloguium on the Law of Outer Spa ce. Internationallnstitute of Law of Space Law of the International Astronautical Federation, (Davis, Caltfornia· University of California School of Law, 1973) 118-129 al 125 and 128.
396 Sre Vcrdro!ls, Alfred and Bruno Simma, supra note 35, at 383-'184. Sec also supra 2.23.2, e!>pcciaJly note 209 .
397 Sec Verdross, Alfr~d and Bruno Simma, supra note 35, at 382.
1
1
International Rcsponsil;!ili!y and Liability PiI&e 94
3.2.5.2 The Meqsurement of Damages
International law and ethical standards having been the only common denominator the
representatives could achieve, article XII of the Convention stipulates that "the
compensation which the launching State is liable to pay for damage under this
Convention shall ~e determined in accord an ce with international law and the principles
of justice and equity ... "398.
In seeking to establish a reference point for future interpretation of this provision, the
representative of Belgium stated that a Claims Commission might be able to refer to
"standards drawn from jurisprudence, common sense, ex aequo et bono, insu rance law
and case law, thus rendering it possible to ensure the equitable application of existing
law or to provide a useful complement to that laWJ99.
It has also been suggested that by combining ''justice'' and "equity", the drafters did not
intend "equity" to have the connotation it has in the Anglo-American legal system, but
rather the popular sense signifying moral justice4OO• The conclusion has been drawn that
"it is not only a 'vague' international law, but ail principles (of law) which are just and
equitable, or, better, which lead to su ch a result, which will be taken into account when
compensation is to be determined'o4Ol. Such an interpretation introduces an elerrtent into
the measuremént of damages that would make it possible to avoid the rigors of strictly
legal approaches and to adapt relief to the circumstances of any given case402• However,
the flexibility gained must be balanced against the loss of c1ear-cut and predictable
criteria for the assessment of the compensation payable.
Moreover, it could be argued that justice and equity are or should be the bases of any
legal rule. Thus, the explicit referenc\.' made in article XII would merely put special
398 Art. XII of the Convention, sec supra note 5. 399 See UN Doc. A/AC.I05/C.2/SR.162 of August 25, 1971, at 73. 400 See Alexander, Ronald E., -Mcasuring Damages under the Convention on International Liability for
Damage Caused by Space Objects" (1978) 6 J. Space L. 151-159 al 153. 401 See Malle, Nicolas MaleCM:o, AcrQspace Law [:) From Scientific E~l>loralion to Commercial
Utili1iuion, supra note 298, at 169. 402 See Christol, CatI O., The Modeln International Law of Outer Space. supra note 285, al 93.
1
1
International Re<;pons:\ili(v and Llahility P~c95
emphaliis on this origin, reminding the parties to the Convention a..~ weil as those
applying it of the sen~e and the spirit of such a provision; it would not, howe\er.
introduce a new criterio'l or standard. On the other hand. "Justice" and "equily" have
been regarded as supplementing the otherwise incomplete rules of public international
law concernmg the a~sessment of damages4tl3• To fulfill such a function, the terms have
to be alisigned a specifie contents and meaning. Neither the Liahility ConventIOn itself,
nor its negotiating history, or interpretations of its provisions ~uggested after its adoption
and pntry into force offer a satisfactory answer to the question of what can be considered
to be the implication of 'Justice" and "equity".
Fortunately, the Convention ~pecifies the result to be achieved by the payment of
damages and thereby elucidates the ~tandards concerning their measuremcnt. According
to article XII, the compensation to be paid by the State liable shall "provide such
reparation in respect of the damage as will restore the person, natural or juridicai, St ale
or international organization on whose behalf the daim is pre~ented to the condition
which would have existed if the damage had not occurred,04{)4.
The principle expressed in article XII of the Convention follow~ an often-CÎted rule
promulgated in a judgment of the Permanent Court of International Justice and
generally accepted as customary internationallaw:
"... reparation must, as far as possible, wipe out ail the
consequences of the illegal act and reestablish the situation which
would, in ail probability, have existed if that act had not been
committed.,t405
403 See Rajski, J., supra note 388, al 74 Compare also the interpretation by the Bulgarian dclcgation in t~c Legal Sub-Commiltcc, VN Doc. A/AC.105/C.2/SR.163.
404 See supra note 5. 405 Judgrnent in the Cao;e concernins (he FailllrYl!t Chor76w (Claim for Indcmnity) (Mcrilsl, supra note
74, at 47. Sec also Meloni, G., "Notes sur l'Interprétation de la Convention Relative à la Responsablltté Résultante des Activités Spatiales" (1974) 13 Diritto Aereo 284-287 al 286; Poulan\.l.as, Dionys.o,ios M., supra note 390, al 132. The Canadian daim for damages caused by Cosmos 954 also invoked this pri!lCiplc - see teX! in (1979) 18 ILM 899-930 at 906.
, l
~rnalional Rcc;ponsihility and Liahility
The stipulation in article XII differ~ from general public international law in so far as it
excludes r~stitutiQ :- intc&rum, which is usually the principal mode of restitution, as weIl
ail al! other forms of reparation4D(,; the Liability Convention provides for the payment of
damages only407.
Article XII does nnt state explicitly that the compep.sation payable should cover the
entire damage, nor does it provide for a full measure of compensation4û8• Throughout
the ùebates in the Legal Sub-Committee, the inclusion of such a formula was highly
disputed409• While the Western States, supported by the General Assembly's resolution
2733 H (XXV) that called for provisions ensuring the payment of a full measure of
compensation to victirns410, advocated the ex;>licit rnentioning of such a principle in
article XII, the Socialist countries strongly opposed this. They objected to that idea,
because it might include compensation for indirect or consequential damage such as
lucrum cessans and interest. Although, in the end, the final draft did not make reference
to the afore-mentioned rule, a compromise was achieved when a 1ast minute amendment
of the fourth paragraph of the Preamble411 , based on an Australian proposaI as amended
by Belgium, wa..ç; adopted. It expressed the need "to ensure ... the prompt payment ... of a
full and equitable measure of compensation to victims".
Thus, starting from the initial American proposal412, the question of the measurement of
damages, too, had come full circle. In the process, sorne issues were c1arified, but others
remained as ambiguous as they had been in 1964.
406 Compare supra 2.1 2.6.1. 407 Art. XII of the Convention, supra note 5. 408 Cocca holds the view tha: art. XII c1early specifies the reach of full compensation. See Cocca, A. A.,
"The Principle of 'Full Compensation' in the Convention on Liability for Damage Caused by Objects Launched into Outer Spacc·, publi<;hcd paper prcscntcd at the Fifteenth Colloquium on the Law of Outer Space, Vlenna, Austria, Dc!ober 8,1972, to Octobe.r 15, 1972, Schwartz, Mortimer D., ed., fi~n~s of the Fiftecnth ColloQuium on the Law of Outer Spacc. Internationallnstitute of Law of Spacc Law of the International Astronautical Federation, (Davis, California: University of C~lifornia School of Law, 1973) 92·95 al 93.
409 See Coc<:a, A. A., supra note 4OR. 410 UNG .... rc:.. 2733 B (XXV) of Dcccmber 16, 1970, supra note 279. 411 See url Doc. AjAC.I05jQ4 al 18. 412 See supra noIe 246.
1
~In~l~er~n~al~io~n~a~I~R~es~p~o~n~si~b~i1i~ty~a~n~d~L~i~ah~i~lit~Y ___________________________________ ~~97
Concluding, it should be noted that the Convention does not ~et éiny Iimit with regard to
the amount of compensation,
The American as weil as the Hungarian draft had provided for a po~sihility to tix a
maximum amount4J3, Although limitations regarding the arrlount of compensation .1Ie a
common feature of regirncs prescribing liability for risk, Loe idea was reJected hy mnst
members of the Legal Sub-Committee"14, Even when the Amcrican delcgation,
attempting to carry its point, proposed a limit as high as $ 500 million4!5, C(ln!-oent wu!-.
refused416, and the American delegation finally dropped its insistence lm setting a ceiling
on liability417.
While the insertion of a limitation might have been advantage()u~ with a view to space
insurance, unlimited liability is surely more victim-oriented. Nobody knows the e~tent
damage caused by spacc ohjects may take. Any fixation of a limit would therefore be the
result of guesswork rather than the just and appropriate outcvme of balacing the
interests in' olved. Finally, the view could be taken that those engaging in space activitie~
have attained su ch economic strength as to make unnecessary protection by way of a
limitation of liability418.
413 See art. IX of the United Statcs' draft. UN Doc. A/ AC.I05/C.2/L.8. Sec art. II para. l of the Hungarian draft, UN Doc. A/AC.105/C.2/L.1O. The provi1>ion was dclctcd in 1967, c;ce: UN Doc A/AC 105IC.2/L.24/Add. 1.
414 See Gulierrez Espada, Cesareo, La Rec;pon<;ahilidad Intcrnacional l'or Dano<; cn cl Dçnxho deI Espacio (Murcia: Secrelariado de Pllblicaciones, 1(79) 113-118. Sec al50 Gfdcfralh, Bernhard, "Responsibilily and Damages Causcd. Rclationship bctween Respon\ihility and Damdges' (19R411) 185 RdC 9-149 al 109; Lachs, Manfred, The Law of Outer SVaçç (Lcidcn: Sijlhoff, 1972) al 12.6
415 Sec UN Doc. A/AC 105/C.2/SR.106 al 51-52. 416 Sec, for cxample, the statements of the French and the Slcrra Lconean dclcgations, UN Doc
AI AC.105;C.2jSR.111-1l3 al 62 and UN Doc. Aj AC.105jC 2jSR.78 al 14 respcctJvcly. 417 The Chairman of the Legal Sub-Commiuec, i.Il prc'ienting the draft liahility convention ln the Outer
Space Commiuec, said on Seplcmbcr 1, 1971, lhdt dgrc';menl on not fixing a limit had becn rcached "at an early stage of the ncgotiations", sec UN Dot'. AI AC.105/PV .98 al 16. Sccing that it had becn reported as an outstanding question on Dcccmbcr 5, 1969 - sec UN Doc. A/AC.105/PV.78 al 160·, however, this can have happened only after 1%9. On Scptembcr 3, 1970, the Canadlan dclegate tn COPUOS wa'i still commenting that the issue remained to he "resolved definitcly", sec UN Doc. A/AC.105/PV.87 at 89.
418 Compare Foster, W. F., supra note 330, al 153-154.
International Responsibility and Liability
3.2.5.3 Compensable Damage
The nature of harm experienced by those who have been injured or whose property has
been damaged may vary. While sorne injury or damage may be c1assified as actual or
direct, another may be regarded as consequential or indirect. Furtbermore, a distiction
can be drawn between physical or material barm on the one band and moral or
immaterial harm on the other hand.
3.2.5.3.1 Direct Damage
Five categories of recoverable types of damage are identified in the Convention, namely
Joss of life, personal in jury, other impairment of health, loss of property, and damage to
property419. Ali these kinds of harrn may be c1assified as actual or direct. Within the
context of these concepts, a c1aimant would be required to show tbat the damage was
caused directly and immediately by the respondent's space object420•
3.2.5.3.1.1 Loss or Lire, Personallnjury, and Other Impairment of Heaith
While "Ioss of Iife" is rather an unambiguous term, "personal in jury" and "other
impairment of health" caU for a definition.
The term "persona] injury" can be understood as requiring physical impact with a space
object, its component parts or debris421• It encompasses objectively diagnosable and
419 See art. 1 of the Convention, supra Dote 5. 420 Sec Christol, CarlO., 'International Liability for Damage Caused by Space ObjeCls· (1980) 74 Am. J.
Int'I L. 346-371 at 359. 421 Sec Christol, CarlO., "International Liability for Damage Caused by Space Objects·, supra Dote 420, al
360.
-~
International Responsibility and Liability
ascertainable detrimental effects on the body of a human being. This definition does not
cover psychopathological phenomena, nor does it include in jury caused hy
contamination cmanating from a space object or parts thereof.
"Personal in jury" is supplemented by "other impairment of health". The World Health
Organization having identified health as "a state of c0mplete physical, mental and social
well-being"422, "other impairment of health" can be interpreted as inc1uding mental,
psychologicai and psychopathologicai problerns as well as diseases caused by biological,
chemical or radiological contamination. It thereby extends the applicability of the
Liability Convention beyond the harms associated with Ioss of life and physical injury423.
Consequently, it is not necessary to advocate an extensive interpretation of the term
"personal injury" for other than immediate physical in jury to be covered by the
Convention.
3.2.5.3.1.2 Loss or Property and Damage to Property
The definition of "damage" in the Convention is incomplete and misleading in so far as
onIy 1055 of or damage to the property of ;nternational inter-governmental organizations
is mentioned424. However, the context clearly requires "damagc" to encompass loss of or
damage to property of a State or its nationaIs, to0425•
422 See the Prcamble to the Constitution of the World Health Organi7~tion. donc in New York on July 22, 1946, text in (1955) 1 Vertragssammlung AA, Serie A, 258·299 (Nr.7) at 258. As of Dccembcr 31, 1989, it had been ratified by 155 ~tates, see BGB!. Teil 2, Fundslellenvem:ichnis B.
423 See Christol, Carl Q., "Inlernational Liability for Damage Causcd by Spa ce Objects·, supra note 420, at 360; Gorove, Stephcn, supra note 423, al 124-125; Bogaert, E. R. C. van, supra notc 332, al 172; Foster, W. F., supra noIe 330, al 155.
424 Compare art. 1 (a) of the Convenlio~ supra Dote S. 42S See arts III and IV f)f the Convention: .... damage being caused ... to persons or propcrty on board ...• ,
supra note 5.
-------------------------------
International Responsibility and Li ability Paie 100
Property is lost or damaged when it has been subject to interference resulting in its
destruction or in its being in any way rendered unfit for the use for which it was
intended426•
One of the stumbling blocks in the Legal Sub-Committee's path to a draft agreement
was the issue of radioactive contamination. White Western countries contemplated
nuclear damage to be covered by the envisaged convention427, the Hungarian proposaIs,
which received the support of most socialist States, specifically excluded it428•
Attempting to come to a compromise solution, sorne delegates indicated that they would
be willing to accept a limitation of liability with respect to radioactive contamination429•
426 See Foster, W. F., supra note 330, at 156-157. 427 Il was argued thal the Outer Space Trealy did not provide for the exclusion of nuclear damage and the
Liability Convention should thcrcfore extend to it, too; see the statements by the Brazilian delegate, UN Doc. AjAC.I05jC.2jSR.1l8 at SO, by the Canadian de1egate, UN Doc. AjAC.I0SjC.2jSR.94 al 53-54, the French dclegate, UN Doc. AjAC.I05jC.2jSR.I23 at 124-125, and the delegate from the United Kingdom, UN Docs Aj AC.I05jC.2jSR.94 at 51, and AjAC.I05jC.2jSR.106 at 53. The Czechoslovakian de]egate a]so took tbis view, see UN Doc. AjAC.I05jC.2/SR.118 at 79.lt was aIso mentioned that a victim might have serious difficullies in distinguishing between nuclear damage and damage caused by the impact or the explosion of a spaee object; see the statements by the Canadian delegate, UN Doc. AjAC.I05jC.2jSR.94 al 53-54, and by the del~gate of the United States, UN Doc. AjAC.I05jC.2jSR.49 at 3. The French delegate pointed out that unlike other types ofnuc1ear hazards where the risks could be assessed, nuc1ear damage caused bya space object was impossible to foresee and even more impossible to assess in advance, see bis statement, UN Doc. AjAC.105jC.2jSR.123 al 124-125. Finally, it was mentioned that the compensation 50ugbt for nuc1ear damage would he no different from that payable for other kinds oC damage, sec tbe staternent by tbe de1egate from the United States, UN Doc. Aj AC.I05jC.2jSR.127 al 154.
428 Sec arl.lI para. 1 of the Hungarian draft, supra note 249.1t was argued that exc1uding nuc1ear damage from the Convention would rer.der a limitation of liability unnecessary, see the statement by the Bulgarian dclcgate, UN Doc. AjAC.105jC.2jSR.78 at 16. AIso, it was in accord with established practice to deal with nuclcar damage separately, as was illustrated by the various nuc1ear liability conventions, see the statements by the Hungarian delegate, UN Doc. AjAC.I05jC.2/SR.93 at 38-39, and by the delegation of the Soviet Union, UN Doc. AI AC.I05jC.2jSR.49 a14. The view was held tbat the risk of nudcar damage was minimal and it was thus unnecessary to deal with it immediately, see the statemcnts by the Bulgarian delcgate, UN Doc. AjAC.I05jC.2jSR.78 atl6, by the Hungarian dclegate, UN Doc. AjAC.105jC.2/SR.94 at 57, and by the Soviet Union, UN Doc. A!AC.105jC.2jSR.94 at52. The Austrian dclcgate was of the opinion that excluding the topie of nuc1ear damage would simplify the task of seuing a limit on Iiability and, apart from that, nuclear damage caused by spacc activities was likely to he 50 different from the other types of damage resulting from such activilies that il would he simpler to deal with it in a separate convention, see the slatement by the Austrian delegate, UN Doc. AjAC.I05jC.2jSR.49 al S.
429 See the lttalemenb by the Australian de1egate, UN Doc. AjAC.I05jC.2jSR.93 at 46, the Belgian delegale, UN Doc. AjAC.105jC.2jSR.49 at 6 and 7, and the Canadian delegate, UN Doc. AjAC.105jC.2jSR.93 at4S.
------------ --- ---
International Responsibility and Liability Paie 101
Another representative stated that he was preparcd to accept the exclusion of nuclear
damage from the agreement "if the space powers gave an assurance in the fmm of a
dec1aration which would be part of the Convention that they would not use nuclear
material or place it aboard space objects'143O. However, taking into account the rapid
evolution of space technology, there was the possibilitf that the space propulsion
technique based entirely on nuc1ear reactors would be perfected shortly and thus render
a Convention excluding nuc1ear damage meaningless. It was also suggested to prepare a
separate agreement dealing with the issue, or to amend the International Convention on
Civil Liability for Nuclear Damage431 so as to inc1ude within ils scope damage caused by
space objects432•
A majority in the Legal Sub-CommiUee took the view that nucIear damage caused by
space objects should be dealt with in the Liability Convention and it was finally agreed
not to exclude the issue433•
3.2.5.3.2 Indirect, COllsequential or Remote Damage
It was because of the highly disputed question whether or not the Liability Convention
should cover con!lequential or indirect damage, that the "applicable law" discussions in
COPUOS' Legal Sub-Committee continued for yeaTS. In the course of those debates, it
became obvious that Western countries considered such damage to he incIuded in the
definition of "damage", while socialist States refused the term to have such notion434•
430 See the statement by the Indian dclcgate, UN Doc. A/AC.I0S/C.2/SR.I08 at 71. 431 See supra note 193. 432 See Bogaert, E. R. C. van, supra Dote 332, at 172. 433 Agreement was reaehed, whcn, in 1969, the Soviet dclcgation dcclared lhal it would admit nudear
damage into thl' field of application of the Convention. See UN Doc. A/AC.l05/C.2/SR.118 at 5. 434 See the Report of the Legal Sub·Commillee on tbe Work of ilS Sixth Session, UN Doc. A/ AC.105/37,
al para. 17. See also Deleau, Olivier, supra nole 380, al 878.
-
1
International Responsibility and Liability Pa~e 102
ln cases of responsibility as weIl as in those of liability damage sustained is recoverable
only if it was "cétused by" a space object. No indication is given as to whether daims will
lie for both direct and indirect damages.
"Caused by" could be interpreted as providing that only a direct accident with a space
object, i. e. one involving physical impact on the victim, should entitle the latter to
damages. It could, how('ver, also be interpreted in the context of causality, i. e. meaning
that there must be a proximate causation between the accident and the damage. In the
latter interpretation, "caused by" would be nothing but the declaration of a general
requirement in national as weIl as international law: there can be no allocation of
damages if no causal connection has been established415•
ln view of the fact that the representatives in the Legal Sub-Committee never came to a
conclusion as to whether the Convention should coyer direct as weIl as indirect damages,
the interpretation of "caused by" should be restricted to the basic one, namely that in the
context of causation. No consensus having been reached, il is unlikely that the drafters
intended to settle the outstanding issue by requiring that only damage "caused by" a
spa ce object shaH incur the launching State's responsibility or liability. Therefore, it
depends on the facts of the particular case whether damage can be considered as having
been "caused by" a specifie spaee object or not436• This also applies to the often-discussed
clean-up costs437 and costs incurred by precautionary measures438• Such costs are not
415 On the notion of "caused by" in the Convention see Christo~ CM) Q., The Modern International Law of Outer Space, supra Dote 285, at 96-97; Gorove, Stephen, "Cosmos 954: Issues of Law and Policy",supra Dote 324, at141.
436 See Cheng, Bin, "International Liability for Damage Caused by Space Objects", supra Do:e 330, al 115; Malte, Nicolas Mateesco, Acrospacç Law l:l From Scicntiliç Exploration to Commercial Utilization, supra note 2Q~, al 157; Fostcr, W. F., supra note 330, al 158.
4~7 See Dembling, Paul G., "Cosmos 954 and the Space Treaties· (1978) 6 J. Space L. 129-136, with further references.
International Responsibility and Liability Pill:C' 103
generally covered cr exc1uded from being recoverable. If the necessary causal nexus can
be established, they are as compensable as any other damage that may occur.
3.2.5.3.3 Moral or Immaterial Damages
Moral or immateriaJ damage sustained by private individuals may qualify a!l
compensable damage under the Convention, if it constitutes "personal in jury or other
impairment of health"·n9. ln view of the broad definition of the term "other impairment
of health'o44O, pain, suffering, and humiliation, for ex ample, are types of harm which can
be considered as falling within the scope of the Convention441 •
As to States, immateriaJ damage may occur in the form of injuries to the dignity or the
sovereignty of a State. The breach of a treaty obligation may also be regarded as moral
damage442•
An unintended return of a space object entering another State's airspace without prior
notification constitutes an infringement of the other State's sovereign rights. Thus, it
may incur daims for compensation or other forms of reparation. However, the bases for
such claims cannot be found in the lex specialis of space law, but in general customary
438 See Gorove, Stephen, "Cosmos 954: Issues of Law and Polief, supra noie 324, al 141-142. Sec also COPUOS' Legal Sub-CommiUec's Report on the Work of its Twenly-Sixth Ses!;ion, UN Doc. A/AC.I05j385 of April 16, al 21·22, para. 43, and al 26. The;. West German Minisler of the Inlerior, Zimmermann, intendcd to daim DM 350,000.-- which the Federal Republie of Germany had spcnl on precautionary measures taken in view of the probable crash of the Sovict satellite 1402 onlo Wes! German territory in February 1983, see "Bonn will Moskau die Kosten fur 'Kosmos' in Rechnung steUen", Frankfurter AlIgemeine Zeitung, February 10, 1983, at 1. The West German Foreign Ministry fwally decidcd Dot to pass on the daim as the damage was regarded as bcing too remote to he covered by the Liabilily Convention.
439 See art. 1 lit. (a) of the Convention, supra note 5. 440 See supra 3.2.5.3.1.1. 441 Christol, CarlO., The Modern Intcrnational Law of OUI Ci Spa cc, supra note 285, at 97-100, in
discussing the problcm of moral damages, makes ample reference to municipallaws, espccially the law oftbe United States. While municipallaw May he ofrelevance for a victim resorting to local remedics availahle in the launching Slate, it does not provide any perception of what kind of damage is compensable under the Convention and, if it is remediable, to what extent. See Christol, CarlO., The Modern International Law of Outer Spaçç, supra note 285, at 98. 442
....
1
•
International Responc;ibility and Liability Paae 104
international law. The definition of damage laid down in the Convention c1early does
not cover moral damage in the form of a breach of treaty obligation or an infringement
of sovereign rights443•
3.2.5.4 The Payment of Compensation
Once damage done has been identified as compensable and the am ou nt of
compensation due has been assessed. in the absence of an agreement to the contrary,
"the compensation shaH be paid in the currency of the claimant State or, if that State so
requests. in the currency of the State from which compensation is due'0444.
The provision does not specify a particular point in time at which a claimant State
wishing to be paid in the currency of the respondent has to request 50. However, if the
Convention is to work equitably, the request should have to be made before the final
determination of the amount of compensation due445•
3.2.6 The SeUlement or Disputes
The seulement of disputes with regard to claims under the Convention was the last and
probably the most crucial issue which delayed the conclusion of the Liability
Convention446•
443 See art. 1 lit. (a) of the Convention, supra Dote 5. 444 See art. XIII of the Convention, supra Dote 5. 445 Sec Cheng, Bin, "International Liability for Damage Caused by Space Objects', supra note 330, at 132.
Chengs points out thal, espccially in vlew of the artificiality of sorne exchallge ratef, the provision could easily he abuscd if a rcquest for tbe compensation to he paid in the respondent's CllJTency could he made subsequcllt 10 the final delermination of the amount due.
446 Sec Cheng. Bin, "International Liability for Damage Caused by Space Objects", supra Dole 330, at 135; Christol, CarlO., The Modern International Law of Outer Spaçk' supra note 285, at 84; Foster, W. F" supra note 330, al 141-142 .
International Responsibility and Liahility Pue 105
While sorne delegations in the Legal Sub-Committee subrnitted proposaIs which
provided for compulsory arbitration447, others strongly opposing to the ide a of
compulsory third-party settlement favoured the introduction of a provision concerning
the establishment of a parity conciliation or inquiry commission44B• Sorne States
preferred the Clairns Commh,sion to be vested with the competence of rendering a
binding decision449, others lOok the view that its decision should be of advisory nature
onlyt5O.
The controversial discussion revealed the opposing views of States engaging in space
missions on the one hand and potential victim States on the other hand. It also uJlveiled
the fundamentally different underslanding socialist States have of sovereignty from the
notion attributed to the terrn in Western countries.
The outcorne of the tedious debates is a carefully drafu;cJ compromise. One of the
principal objectives of the dispute settlement provisions laid down in articles XIV to XX
of the Convention451 is to enable a c1aimant State, in the absence of a settlement through
diplomatie negotiations, within one year following the notification of the claim to the
launching State, to initiate an independenl processus which will be able, with, but if
necessary without, the co-operation of the launching State, to come to a definite
conclusion on the question of responsibility or Iiability and the amount of compensation
due. To guarantee that a claimant State will receive an authoritative pronouncement on
447 See arl. 4 of the Belgian draft, UN Doc. A/ AC.105/C.2/L.7 /Rev.3; art. X of the proposai submiucd by the United States, UN Doo. A/AC.105/C.2/L.l9 and A/AC.105/C.2/L.58.
448 See art. Xl of a Hungarian proposaI, UN Doc. A/AC.10S!C.2/L.10/Rev. 1, and the submission of Bulgaria, Hungary and the Soviet Union, UN Docs A/AC.105/C.2/L.76 and A/AC.105/85, Annex 1 ~; 4.
449 See art. 10 of the draft convention proposcd by the United States in 1967, UN Docs A/ AC.105/C.2/L 19 and A/ AC.105/37, Annex 2 at 6. See abo art. 6 of the M:cond annex to the 1968 submission \.lf India, UN Doc. A/AC.I05/C.2/L.32/Rev. 1 and Corr. 1, and A/AC.105/45, Annex 1 at 21 and 19, art. 10 of the 1968 Italian proposai, UN Doc. A/AC.105/C.2/L.40 and Corr. 1, and A/AC.105/4S, Annex 1 at 30 and 40 See finally the eight State proposaI submillcd by Argcntina, AustraIia, Bclgium, Canada, ltaIy, Japan, Swcdcn and the United Kingdom in 1970, UN Doc. A/AC.105/85, Annex 1 at 3.
450 See, for example, the statements of the Hungarian delegatioD, UN Doc. A/ AC.105/C.2/SR.121 at 5, and the Polish delegation, UN Doc. A/AC.105/C.2/SR.l48 at64.
451 For the lext of the Convention, see supra Dote 5.
International Responsibility and Liahility Pa&e 106
whether its claim is valid under the Convention and, if so, how much compensation it
mayexpect to receive, time limits are prescribed with regard to the judgment or award
to be rendered.
3.2.6.1 The Establishment or a Claims CommissioD
The obligation imposed on the parties to a dispute ta establish a Claims Commission is
mandatory if a period of one year has e]apsed since the presentation of the claim to the
launching State, diplomatie negotiations have not led to the settlement of the claim, and
either party has requested such a course4S2•
3.2.6.2 The Composition of the Claims Commission
The Claims Commission is to be composed of three members irrespect ive of the number
of claimants or respondents joined in any one proceeding: one mem!>er being appointed
by the daimant State or States, one member being appointed by the launching State or
States, and the third member, the umpire and Chairman, being appointed jointly by both
parties4S3• Each party is to make its appointment within two months of the request for
the establishment of a Claims Commission. Twice as much time is given for the
appointment of the Chairman; if four months have passed without the parties having
agreed on the choice of a Chairman, he shaH, at the request of either party, be
appointed by the SecretaI)' General of the United Nations within a further period of two
months4S4•
452 S.:oc art. XIV of the Convention, supra note 5. 453 Sec arts XV para. 1 and XVII of the Convention, supra note S. 454 Sec art. XV para. 2 of the Convention, supra nole S.
1
----------------------------------------.... ·9 1
International Responsibility and Liahility
It is not possible for one party to frustrate the establishment of the Claims Commission
by failing to make its appointment within the stipulated period, because the other party
may then request the Chairman to form a single-member commission455•
When a vancancy arises in the Commission. a replacement shall be provided by the
same procedure as for the original appointment4S6•
3.2.6.3 The Claims Commissions's Procedure
It is for the Claims Commission to determine ilS procedure, the place or places wnere it
shaH sit and all other administrative matters45i.
Except for decisions and awards by a single·member commission. alI decisions and
awards of the Commission are to be by majority vote458• They must be handed down as
promptly as possible. no later than one year after the establishment of the Commis~ion.
unless an extension of this period is deemed necessary459. The reasons for the decision or
award are to be stated and it is to be made public; certified copies are to be delivered to
each of the parties and to the Secretary of the United Nations460•
3.2.6.4 The Claims Commission's Competence
The Commission shaH decide the merits of the c1aim and, if compensation is to be made,
determine the amount of compensation due in accordance with the respective provisions
of the Convention461•
455 See art. XVI para. 1 of the Convcnti(\n, supra Dote 5. 456 Sec art. XVI para. 2 of the Convention, supra note S. 457 Sec art. XVI paras 1 and 4 of the Convention, supra note 5. 458 Sec art. XVI para. 5 of the Convention, supra note 5. 459 See art. XIX para. ~ 01 the Convention, supra note 5. 460 See arl. XIX para. 4 of the Convention, supra Dote S. 461 See arts XVIII and XIX para. 1 of the Convelltion, supra note S.
1
In\ernational Rcsponsibilit)' and Liahility Paie 108
The Commission's decision shaH be final and binding only if the parties have agreed sa,
otherwise it shaH render a final and recommendatory award ta be considered by the
parties in good faith462•
While the latter provision clearly reflee!.!; the divergence of opinions persisting among
the members of the Legal Sub-Cornmittee throughout the negotiations and even at the
time of the adoption of the draft convention463, there may in practice be less difference
between a final and binding decision on the one hand, and a recommendatory award on
the other hand than a first glance at the text rnight suggest. On the international plane,
there is no coercive power that could ensure the enforcement of a final and binding
decision, even if one were provided for in aIl instances464• The efficacy of such a decision
still depends on the good faith of the State or States found responsible or liable. Because
of the political and moral realities of the situation, a recommendatory award made
public may thus attain a degree of efficacy weIl comparable to that of a legally binding
decision465•
462 Sec art. XIX para. 2 of tbe Convention, supra note 5. 463 Sec supra note 3.2.6. Compare Cheng, Bin, "International Liability for Damage Caused by Space
Objects·, supra note 330, al 135-139. 464 See the statcmcùt by the Brazilian dclcgation, UN Doc. AI AC.I05/C.2/SR.147 al 54. 465 Compare the statements of the Brazilian dclegate, supra note 464, the BuJgarian deJegate, UN Doc.
AI AC.l05IC.2/SR.148 al 67-68, and the Hungarian delegate, UN Doc. AI AC.105/C.2/SR.121 al 104.
l
International Rcs[!onsibility and Liability
4 Conclusion
In general public internationallaw, there are three categories of norms:
- primary norms establishing rights and duties for subjects of international law,
- secondary norms defining the legal consequences incurred by the infringernent of
primary norms, and
- tertiary norms addressed to the implementation of primary and secondary norms a!l
weil as to the settlement of disputes.
Two types of accountability, one belonging to the category of secondary norms, the other
one to be classified as primary norms, may be distinguished:
- responsibility for internationally wrongful acts deals with the legal con!lcquences
following breaches of internationallaw established by primary norms,
- Iiability for injurious consequences arising out of acts not prohibited by international
law is original in nature.
White State responsibility is an established concept in public international law, liability
for risk has not reached this level of acceptance yet and itl\ applicability i!o. thcreforc
dependent on specifie stipulations in conventional regimes.
The 1972 Liability Convention, an international agreement concluded to provide for a
legal regime that takes account of the particularities typical of cases of lo~!o. or damage
caused by space activities, establi~hes a dual system of accountahility referring to
responsibility as weIl as to liability. Although the term "re~~onsihility" i5 not heing u~ed
in the Convention, it is in fact fault-based responsihility rather than liahility that i!l
prescribed as the legal consequence of damage having occurred elsewhere th an on the
surface of the Earth to a space object of one launching State by the !lpace ohject of
another launching State. Only if damage has occurred on the surface of the Earth or to
aircraft in flight shall a launching State be absolutely liable.
Space activities are a typicaI example of the kind of activities that prompted the
development of the concept of "li ab iIi t y for risk" or "Iiability for damage caused by ultra-
i
•
1
International Re5pomihihty and Liahihty Page 110
hazardùus activities" as described in legal doctrine and in the I.1ternational Law
Commission's draft codification. That the concept was nevertheless made applicable to
but a minority of the potential cases of loss or damage caused by space objects is
explainahle only hy the hesitance of States embarking on space activities to accept as
hinding on a large scale a type of accountability far more rigid than State responsibility.
Seeing that the space age had only started fifteen years before, the legal regime
estahlished by the Liability Convention in 1972 can be con~idered a great achievement.
Since then, space technology has advanced and space has become more crowded; the
risk of accidents has increased. The Liability Convention has been applied but once, a
substantive revision has not taken place.
While the rules regarding the resolution of disputes and the settlement of daims appear
to provide a suitable regime for controversies arising in the wake of damage caused by
space objects, the primary and secondary norms set out in the Liability Convention cali
for a revision.
If the dual system of responsibility and liability was replaced by liability as the Jegal
consequence of damage having been caused by space objects anywhere, be it on the
surface of the Earth, in the atmosphere, or in outer space, the agreement could be even
more victim-oriented and far easier to apply in practice. Even if a ceiling had to be set
on liability for such an alteration to be acceptable to the Contracting Parties, the
advantage of deleting proof of fault or proof of failure to act with due diligence would
outweigh this drawback.
1
1
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Alexander, Ronald E. "Measuring Damages under the Convention on International Liability for Damage Caused by Space Objects" (1978) 6 J. Space L. 151-159.
Alland, Deni~ "International responsibility and sanctions: Self-defence and countermeasures in the I.L.C.'s codification of rules governing international responsibility", Sr;nedi, Marina and Bruno Simma, eds, United Nations Codification of State Responsibility (New York: Oceana, 1987) 143-185.
Amerasinghe, Chittharanjan F. "Imputability in the Law of State Responsibility fûr Injuries to Aliens" (1')66) XXII Rev. Egypt. Dr. Int'l 91-130.
Anzilotti, Dionisio Teoria general della responsabilità dello Stato nel diriuo internazionale (Firenze: Lumachi, 1902)
Anzilotti, Dionisio "Observations" (19271) 33 Annuaire 101499-501.
Basdevant, Jules "Règles générales du droit de la paix" (1936 IV) 58 RdC 470-692.
Beyerlin, Ulrich "Die israelische Befreiungsaktion von Entebbe aus vôlkerrechtlicher Sicht" (1977) 37 ZaôRV 213-243.
Billingham, John, William Giibreath and Brian O'Ù!ary, eds Space Resources and Space Set!kment, Technical Papers derived from the 1977 Summer Study at NASA Ames Research Center, Moffet Field, California, NASA SP-428 (Washington, D. c.: Government Printing Office, 1979).
Bogaert, E. R. C. van Aspects of Space Law (Deventer: Kluwer Law and Taxation, 1986).
1
1
lliQliQiUaphy n
Bollecker-Stern, Brigitte Le préjudice dans ]a théorie de la responsabilité internationale (Paris: Pédone, 1973).
Borchard, Edwin M. "Theoretical Aspects of the International Responsibility of States" (1929) 1 ZaoRV 223-250.
Bosco, J. A. Liability for Outer Space Activities - A United States Perspective (LL. M. Thesis, Faculty of Graduate Studies and Research, McGill University, 1985) [unpublished).
Bourély, Michel G. "Comments on the Rajski Report", published paper presented at the Twelftb Colloquium on the Law of Outer Space in Mar deI Plata, Argentina, from October 5, 1969, to October 10, 1969; Schwartz, Mortimer D., ed., Proceedin&s of the Twelfth Colloquium on the Law of Outer Space, International Institute of Space Law of the International Astronautical Federation, (Davis, California: Univer~ity of California School of Law, 1970) at 78-81.
Bourquin, M. "Observations" (19271) 33 Annuaire 101501-509.
Bouvé, C. L 'The National Boycott as an International Delinquency" (1934) 28 AJIL 19-42.
Boyle, Alan E. "State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?" (1990) 39 Int'I & Comp. L Q. 1-26.
Brierly, J. L 'The Shortcomings of International Law" (1924) 5 Brit. Y. B. Int'14-16.
Brierly, J. L 'The Theory of Implied State Complicity in International Clairns" (1928) 9 Brit. Y. B. Int'l L. 42-49.
Briggs, Herbert W. ''The Punitive Nature of Damages in International Law and State Responsibility for FaiJure to Apprehend, Prose cu te or Punish", Mathews, John M. and James Hart, eds, Essays in Political Science in Honor of West,,} Woodbury Willou&hby (Baltimore: John Hopkins Press, 1937) 339-353.
Briggs, Herbert W. The Law of Nations - Cases. Documents and Notes, 2nd ed. (New York: Appleton - Century - Crofts, 1952).
r 1
BibliolVaphy
Broad, William J. "Orbiting Junk Threatens Space Missions", The New York Times, August 4, 1987, Cl and C3.
Brownlie, lan Principles of Public International Law, 3rd ed. (Oxford: Oxford University Press, 1979).
Brownlie, lan
III
System of the Law of Nations. State Responsibility, Part 1 (Oxford: Clarendon Press, 1983).
Caemmerer, Ernst von "Wandlungen des Deliktsrechts", Caemmerer, Ernst von, Ernst Friesenhahn, Richard Lange, eds, Hundert Jahre Deutsches Rechtsleben. Festschrift zum hundertjahrigen Bestehen des Deutschen Juristenta~es 1860-1960, vol. 2 (Karlsruhe: C. F. MueHer, 1960) 49-136.
Caflish, Lucius C. 'The Protection of Corporate Investments Abroad in the Light of the Barcelona Traction Case" (1971) 31 ZaôRV 162-196.
Calabresi, Guido The Costs of Accidents - A l..e~al and Economie Analysis (New Haven: Yale University Press, 1970).
Calvo, Carlos Le droit international théoretiQue et pratique vol. III, 4th ed. (Paris: Guillaumin et cie, 1888).
Cançado Trindade, A. A. "Exhaustion of Local Remedies in International Law and the Role of National Courts" (1977/78) 17 ArchVR 333-370.
Cavaglieri, Arrigo "Règles générales du droit de la paix" (1929 1) 26 RdC 315-583.
Cheng, Bin 'The 1%7 Outer Space Treaty" (1968) 95 J. Dr. Int'1532-644.
Cheng, Bin "International Liability for Damage Caused by Spa ce Objects" Jasentuliyana, Nandasiri and Roy S. K. Lee, eds. Manual on Space Law, vol. 1 (Dobbs Ferry, New York: Oceana. 1979) 83-172.
r •
Bibli0JU8phy IV
Christenson, Gordon A. ''The Doctrine of Attribution in State Responsibility" Lillich, Richard B., ed., International Law of State Responsibility for Injuries to A1iens (Charlottesville: University Pres~ of Virginia, 1983) 321-360.
Christol, Carl Q. "International Liability for Damage Caused by Space Objects" (1980) 74 Am. J. Int'l L. 346-371.
Christol, Carl Q. The Modern International Law of Outer Space (New York: Pergamon Press, 1982).
Cocca, A. A. "The Principle of 'Full Compensation' in the Convention on Liability for Damage Caused bX Ohjects Launched into Outer Space", published paper presented at the FJfteenth Colloquium on the Law of Outer Space, Vienna, Austria, October 8, 1972, to October 15, 1972, Schwartz, Mortimer D., ed., Proceedin&s of the Fifteenth CoHoQuium on the Law of Outer Space, International Institute of Space Law of the International AstronauticaI Federation (Davis, California: University of California School of Law, 1973) 92-95.
Codigo Civil para el Distrito Federal 57th ed. (Mexico: Porrua, 1989)
Cohn, M. G. "La théorie de la responsabilité" (1939 Il) 68 RdC 209-325.
Combacau, Jean "Obligations de résultat et obligations de comportement: Quelques questions et pas de réponse", Mélan&es offerts à Paul Reuter - Le droit international: unité et diversité (Paris: Pédone, 1981) 181-204.
Combacau, Jean and Denis Alland "'Primary' and 'secondary' rules in the law of State responsibility: Categorizing internatIOnal obligations" (1985) XVI Netherl. Y. B. Int'I L. 81-109.
Cran, Randa) R. Jr. "New Commercial Launch Industry Faces a Product-Liability Vacuum" (1987) Nat. L J. 22 and 27.
Dahm, Georg Vôlkerrecht, vols 1 to III (Stuttgart: Kohlhammer, 1958-1961).
Décencière-Ferrandière, A. La responsabilité des Etats à raison des domma&es subis par des étran&ers (Paris: Rousseau, 1925).
Bibliojp"!!phy
Deleau, Olivier "La Convention sur la Responsabilité Internationale pour les Dommages Causés par des Objets Spatiaux" (1971) XVII Ann. Fr. Dr.Int'l 876-888.
Delbez, Lo'Jis
y
"La responsabilité internationale pour crimes commis sur le territoire d'un Etat et dirigés contre la sureté d'un Etat étranger" (1930) 37 Rev. gén. dr. int'I 461-475.
Delivanis, Jean La légitime défense en droit international public moderne (Paris: 'ubrairie Générale de Droit et de Jurisprudence, R. Pichor. et R. Durand-Auzias, 1971).
Dembling, Paul G. "Cosmos 954 and the Space Treaties" (1978) 6 J. Space L. 129-136.
Dembling, Paul G. and Daniel M. Arons "The United Nations Celestial Bodies Convention" (1966) 32 J. Air L. & Corn. 535-550.
Deutsch, Erwin FahrUissigkeit und erforderliche SorgfaIt (Kôln: Carl Heymanns, 1963).
Deutsch, Erwin Haftungsrecht, vol. 1 (Kôln: C. Heymanns, 1976)
Doehring, Karl "Local Remedies, Exhaustion of', Bernhard, Rudolf, ed., En~c1opedia of Public International Law, vol. 1 (Amsterdam: North-J-fo])and Publishing Company, 1981) 136-140.
Dumas, Jacques "La responsabilité des Etats à raison des crimes et délits commis sur leur territoire au pl~judice d'étrang~rs" (1931 II) 36 RdC 182-261.
Dunn, .~rederick S. The Protection of Nationals - A Study in the Application of International Law (Baltimore: John Hopkins Press, 1932).
Dupuy, Pierre-Marie La Responsabilité Internationale des Etats vour les Dommages d'Qrigin~ Technologique et Industrielle (Paris: Pédone, 1976).
Eagleton, Clyde The Responsibility of States in International Law (New York: New York University Press, 1928).
Eagleton, Clyde "Measure of Damages in International Law" (1929-1930) 39 Yale L. J. 52-75.
1
BibliolUaphy
Eagleton, Clyde "International Organization and the Law of Responsibility" (1950 1) 76 RdC 323-425.
Efremoff, Jean
VI
"Organisation de la conciliation comme moyen de prévenir les guerres" (19371) 59 RdC 101-223.
Eustathiades, Constantin Th. "Les sujets du droit international et la responsabilité internationale - Nouvelles tendances" (1953 III) 84 RdC 397-633.
Evatt, Herbert V. 'The International Responsibility of States in the Case of Riots or Mob Violence, A Study of the Ka]goorlie Riots Case, 1934" (1935) 9 (Suppl.) Austr. L. J. 9-28.
Fauchille, Paul Traité de droit international pub1ic, vol. l, part 1 (Paris: Rousseau, 1922).
Favre, Antoine "Fauit as an Element of the IIIicit Act" (1964) 52 Geo. L. J. 555-570.
Firestone, Marc S. "Problems in the Resolution of Disputes Concerning Damage Caused in Outer Space" (1984-1985) 59 TrJlane L. Rev. 747-780.
Fleming, John G. The Law of Torts, 6th ed. (Sydney: The Law Book Company, 1983).
Foster, W. F. 'The Convention on International Liability for Damage Caused by Space Objects" (1972) X Cano Y. B. Int'I L. 137-185.
Frank, Reinhard, ed. Das Straf~esetzhuch für das Deutsche Reich nebst dem Einführun~s~esetz, 5th to 7th ed. (Tübingen: Mohr, 1908).
Freeman, Alwyn V. "Recent Aspects of the Calvo Doctrine and the Challenge to International Law" (1946) 40 Am. 1. Int'l L. 121-147.
Freeman, Alwyn V. "Responsibility of States for Unlawful Acts of Their Armed Forces" (1955 il) 88 RdC 267-416.
Bibliowaphy yu
Gal, Gyula Space Law (Leyden: Sijthoff, 1969).
Galloway, Eilene "Agreement Governing the Activities of States on the Moon and Other Celestial Bodies" (1980) 5 Annals Air & Sp. L. 481-508.
Garda Amador, F.V. "State Responsibility, Sorne New Problems" (1958 II) 94 RdC 369-491.
Gilbert, Geoff ''The Criminal Responsibility of State~" (1990) 39 Int'l & Comp. L. Q. 345-369.
Goldie, L. F. E. "Liability for Damage and the Progressive Development of International Law" (1965) 14 Int'l & Comp. L. Q. 1189-1264.
Goldie, L. F. E. "International Principle~ nfResponsibiJity for Pollution" (1970) 9 Colum. J. Transnat. L. 283-330.
Goldie, L. F. E. "Development of an International Environmental Law - An Appraisal", Hargrove, John Lawrence, ed., Law. Institutions. and the Global Environment (Dobbs Ferry, New York: Oceana, 1972) 104-165.
Goldie, L. F. E. " A General View of International Environmental Law. A Survey of CapabiIities, Trends and Limits", Kiss, Alexandre-Charles, ed., The Protection of the Environment and International Law. CollQ.q1Jium 1973 of the Ha~ue Academy of Internatipnal Law (l..eiden: Sijthoff, 1975) 25-143.
Goldschmidt, Jürgen Das Problem einer vôlkerreçhtlichen Gefahrdunishaftuni unter Be .. :jcksichti~uni des Atom- und Weltraumrechtes (Kuln: Carl Heymanns. 1978).
Goodin, Robert E. Protectini the Vulnerable - A ReanalpsiS of.Qur Social Responsibilities (Chicago: The University of Chicago ress, 1985).
Gorove, Stephen Studies in Space Law: Its Challe nies and Prospects (Leyden: Sijthoff, 1977).
=
1
BibliOjUaphy VIIl
Gorove, Stephen "Cosmos 954: Issues of Law and Policy" (1978) 6 J. Space L 137-146.
Graefrath, Bernhard "Responsibility and Damages Caused: Relationship between Responsibility and Damages" (1984 II) 185 RdC 9-149.
Graefratb, Bernhard, Edith Oeser and Peter S. Steiniger Volkerre~htliche Verantwortlichkeit der Staaten (Berlin: Staatsverlag der Deutschen Demokratischen Republik, 1977).
Green, LG. International Law throu~h Cases, 2nd ed. (London: Stevens & Sons, 1959).
Green, Leslie C. "New Trends in International Criminal Law" (1981) Il Isr. y" B. Hum. Rts. 9-40.
Grey, Jerry, ed. Space Manufacturinc Facilities (Space Colonies), Proceedings of the Princeton/ AJAA/NASA Conference May 7-9, 1975 (Including the Proceedings of the May 1974 Princeton Conference on Space Colonization), (New York: American Institute of Aeronautics and Astronautics, 1977).
Grey, Jerry, ed. Space Manufacturing Facilities II, Proceedings of the Third Princeton/ AIAA Conference, May 9-12, 1977 (New York: American Institute of Aeronautics and Astronautics, 1977).
Grotius, Hugo Ik1.ure Belli ac Pacis, Lib. Il (London: John W. Parker, 1853).
Guggenheim, Paul "Les Principes de droit international public" (19521) 80 RdC 1-189.
Guggenheim, Paul Traité de Droit international public. avec Mention de la Pratique internationale et suisse, vol. 2, 2nd ed. (Geneva: Georg & Cie, 1967).
Gutierrez Espada, Cesareo La Responsabilidad Internacional por Dafios en el Derecho deI Espacia (Murcia: Secretariado de PublicaclOnes, 1979).
Haesler, T. The Exhaustion of Local Remedies in the Case Law uf International Courts and Tribunals (Leyden: Sijthoff, 1968)
Hangartner, Yvo "Vôlkerrechtliche Grundpflichten Privater", Hangartner, Yvo and S. Trechsel, eds, Vôlkerrecht im Dienste des Menschen, Festschrift rur Hans Haug (Bem: Haupt, 1986) 109-122.
1
..
BibliQlVaphy IX
Heard, Kevin D. "Space Debris and Liability: An Overview" (1987) 17 Cum.LRev. 167-203.
Hershey, Amor S. The Essentials of International Public Law and Orianizations (New York: Macmillan, 1927).
Hofmann, Rainer "Refugee-Generating Policies and the Law of State Responsibility" (1985) 45 ZaôRV 694-713.
Holmes, Oliver Wendell Jr. The Common Law (Boston: Little, Brown, and Company, 1881).
Hosenball, S. Neil "Space Law, Liability, and Insurable Risks" (1976-1977) 12 Forum 141-154.
Jorre, Olimpiad S. Soviet Civil Law (Boston: Martinus Nijhoff, 1988).
Jabloner, Clemens and Wolf Okresek ''Theoretische .~.md praktische Anmerkungen zu Phanomenen des 'soft law'" (1983/84) 34 OZôffRVR 217-241.
Jagota, S. P. "State responsibil!ty: circumstances precluding wrongfulness" (1985) XVI Netherl. Y. B. Int 1 L 249-277.
Jenks, C. Wilfred "Lbbility for Ultra-Hazardous Activities in International Law" (1966 1) 117 RdC 99-200.
Jennings, R. Y. ''The Caroline and McLeod Cases" (1938) 32 Am. J. Int'I L. 82-99.
Jiménez de Aréchaga, Eduardo "International Responsibility", S9tensen, Max, ed., Manua} of Public International Law (London: Macmillan, 1968) 531-603.
Jiménez de Aréchaga, Eduardo "International Responsibility of States for Acts of the Judiciary", Friedmann, Wolfgang, Louis Henkin and Oliver Lissitzyn, Transnational Law in a Chan~ini: Society, Essays in Honor of Philip C. Jessup (New York: Columbia UniverSity Press, 1972) 171-187.
Karl, Wolfram ''The Time Factor in the Law of State Responsibility", Spinedi, Marina and Bruno Simma, eds, United Nations Codification of State Responsibility (New York: Oceana, 1987) 95-114.
J
l
BibliQlUaphy x
Keeton, Robert E. "Conditional Fault in the Law of Torts" (1959) 72 Harv. L Rev. 401-444.
Kelsen, Hans "Unrecht und Unrechtsfolgen in Vôlkerreeht" (1932) 12 ZôR 481-608.
Kelsen, Hans ''The Draft Declaration on Rights and Duties of States - Critieal Remarks" (1950) 44 Am. 1. Int'l L. 259-276.
Kelson, John M. "State Responsibility and the Abnormally Dangerous Activity" (1972) 13 Harv. Int'l L. J. 197-244.
King, B. E. "Prescription of Claims in International Law" (1934) 15 Brit. Y. B. Int'l L. 82-97.
Klein, Eckhard "Beihilfe zum Vôlkerrechtsdelikt", Münch, Ingo von, ed., Staatsrecht -Vôlkerrecht - Europarecht, Festsehrift rur Hans-Jürgen Schlochauer (Berlin: de Gruyter, 1981) 425-438.
Kubn, Margarete Verschuldens- oder Verursachunishaftuni der Staaten im alliemeinen Vôlkerrecht (Dissertation, Genf, 1961).
La Pradelle, Albert de and Nicolas Politis il rbitra e internationaux, vol. 1 (Paris: Les Editions
Internationales, 19 7).
Lachs, Manfred The Law of Outer Space (Leiden: Sijthoff, 1972).
Lacbs, Manfred "Sorne Reflections on Substance and Form in International Law", Friedman, Wolfgang, Louis Henkin und Oliver Lissitzyn, eds, Transnational Law in a Chan~in~ Society, Essays in Honor of Philip C. Jessup (New York: Columbia University Press, 1972) 99-112.
LalTéranderie, G.
Lais, R.
"Les Accords relatifs à la Station Spatiale Internationale" (1989) 93 Rev. gén. dr. int'1317-384.
Die Rechtsfol~en vôlkerrechtlicher Delikte, Institut für internationales Recht an der Universitat Kiel, Vortrage und Einzelsehriften, Erste Reihe, No. 18 (Berlin: Stilke, 1932).
f ,
Loder, Bernard Cornelius Johannes La différence entre l'arbitrage international et la justice internationale. (Harlem: Tjeenk Willink, 1923).
Malanczuk, Peter
Xl
"Countermeasures and self-defence as circumstances precJuding wron~fulness in the International Law Commission's draft articles on State re~ponsibiltty", Spinedi, Marina and Bruno Simma, eds, United Nations Codification of State Responsibility (New York: Oceana, 1987) 197-286.
Mangoldt, Hans von "Methods of Dispute Seulement in Public International Law", Buckstiegel, KarlHeinz, ed., Settlement of Space Law Dispute~, Schriften zum Luft- und Weltraumrecht, vol. 1 (Kuln: C..arl Heymanns, 1980) 15-26.
Marek, Krystyna "Criminalizing State Responsibility" (1978/79) 14 Rev. Bel. Dr. Int'I 460-485.
Marie, Jean-Bernard "International Instruments Relating to Human Rights, Classification and Chart Showing Ratifications as of 1 January 1987" (1987) 8 Hum. Rts L. J. 217-244.
Matte, Nicolas Mateesco Droit Aérospatial (Paris: Pédone, 1969).
Matte, Nicolas Mateesco Aerospace Law [:1 From Sc;entific Exploration to Commercial Utilization (Toronto: Carswell, 1977).
Matte, Nicolas Mateesco, ed. Space Activities and Emeriini International Law (Montreal: Centre for Research of Aïr and Space Law, McGill University, 1984).
Meloni, G. "Notes sur l'Interprétation de la Convention Relative à la Responsabilité Résultante des Activités Spatiales" (1974) 13 Diriuo Aereo 284-287.
Meron, Theodor "International Responsibility of States for Unauthorized Acts of Their Officiais" (1957) 33 Brit. Y. B. Int'} L. 85-114.
Mossner, Jorg Manfred "Privatpersonen aIs Verursacher vôlkerrechtlicher Delikte. Bemerkungen zu Art. Il des Entwurfs der ILe zur Staatenverantwortlichkeit" (1981) 24 Germ. Y. B. Int'l L 63-91.
1
Bibliœraphy XII
Mohr, Manrred ''The I.L.C.'s Distinction between 'International Crimes' and 'International Delicts' and its Implications", Spinedi, Marina and Bruno Simma, eds, United Nations Codification of State Responsibility (New York: Oceana, 1987) 115-141.
Moore, John Hass.~lt Histol)' and Di&est of the International Arbitrations to which the United States has been a Party, vol. 1 and IV (Washington: Government Printing Office, 1898).
Moore, John Hasselt A di&est of internationallaw as embodied in diplomatie discussions. treaties aruI other international aireements. international awards. the decisions Qf municipal cQurts. and the writin&s of jurists (Washington: Government Printing Office, 1906).
Moore, John Hasselt International Adjudications - Ancient "nd MQdern HistQl)' and DQcuments. toðer with Mediatorial Reports. Advisol)' Opinions. and the Decisions Qf DQmestic Commissions on International Claims, Modern Series IV (New York: Oxford University Press, 1931).
Moore, Patrick The Next Fifty Years in Space (New York: Taplinger Publishing, 1976).
Münch, Ingo von Das vôlkerrechtliche Delikt in der rnQdernen Entwicklun& der Vôlker&cmeinschaf) (Frankfurt a. M.: Keppler, 1963).
Nanda, V. P. "LiabiJity for Spa ce Activities" (1969) 41 U. Colo. L. Rev. 509-528.
O'Connell, D. P. International yw, vol. II, 2nd ed. (London: Stevens & Sons, 1970).
Oppenheim-Lauterpacht
Palandt
InternatiQnal Law, vol. l,8th ed. (London: Longmans, Green and Co., 1955).
Bürf.erliches Gesetzbuch. Kommentar, 49th ed. (München: C.H. Beck'sche Ver agsbuchhandlung, 1990).
BibliQwaphy Xlii
Patermann, Christian "Interpretation of Sorne Articles of the Convention on International Liability for Damage Caused by Space Objects", published paper presented at the Fifteenth Colloquium on the Law of Outer Space, Vienna, Austria, OClober 8, 1972, to October 15, 1972, Schwartz, Mortimer D., ed., Proceedin&s of the Fifteenlh Ç;oIloquium on the Law of Outer Space. International Institute of Spac:e Law of the International Astronautical F~deration (Davis, California: University of California School of Law, 1973) 118-129.
Perret, Robert-Ù)uis De la faute et du devoir en droit international. Fondement de la responsabilité (Dissertation, Zürich: Perret, 1962).
Personnaz, J. La réparation du préjudice en droit international public (Paris: Sirey, 1939)
Phillimore, Robert Joseph Ç.ommentaries opon International Law, vol. l, 3rd ed. (London: Butterworths, 1879).
Pinto, M. C. W. "Reflections on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law" (1985) XVI Netherl. Y. B.lnt'l L. XVI 17-48.
Poulantzas, Dionyssios M. "The Rule of Exhaustion of Local Remedies and Liability for Space Veihcle Accidents", published paper presented at tÎle Sixth Colloquium on the Law of Outer Space in Paris, France, from September 27, 1963 to September 30,1963;, Harley, Nadrew G., ed., Proceedin~s of ~ixth Colloquium on the Law of Outer Space. International In~titute of Space Law of the International Astronautical Federation, (Washington D.e.: International N.tronautical Federation, 1964).
Prosser, William Lloyd Handbook of the Law of Torts, 4th ed. (St. Paul, Minnessota: West, 1971).
Quéneudec, Jean-Pierre La responsabilité internationale de l'Etat pour les fautes personnelles de ses a~ents, (Paris: R. Pichon et R. Durand-Auzi,as, 1966).
Quoe Dinh, Nguyen, Patrick Dailler and Allain Pellet Droit international Public, 3rd ed. (Paris: Librairie Générale de Droit et de Jurisprudence, 1987).
Rademacher, Horst \lEin teures, aber nützliches Spielzeug", Frankfurter AlIgemeine Zeitung, April 12, 1991, at 16.
1
1
BibljQ&Taphy XIV
Rajski, Jerzy "Liability for Damages Caused by Space Objects Including Weather Control from Outer Space", published paper presented at the Twelfth Colloquium on the Law of Outer Space in Mar dei Plata, Argentina, from October 5, 1969, to Octobrr 10, 1969; Schwartz, M. D., ed., Proceedines of the Twelfth ColloQuium on the Law of OutcLSpace, International Institute of Space Law of the International A"tronautical Federation (Davis, California: University of California School of Law, 1979) 69-77.
Rausehning, Dietrich "Verantwortlichkeit der Staaten rur vôlkerrechtswidriges Verhalten", Rauschning, Dietrich and A1brecht Randelzhofer, Staatenverantwortlichkeit (Responsibility of States), Berichte der deutschen Gesellschaft rur Vôlkerrecht, HeCt 24 (Heidelberg: c.F. Müller, 1984) 7-31.
Reis, Herbert "U.S. Discusses 'Applicable Law' for Outer Spa ce Claims", Statement made in the U.N. Committee on the Peaceful Uses of Outer Space on November 20, 1970, (1970) 62 Dep't St. Bull. 18-20.
Reis, Herbert "Sorne Reflections on the Liability Convention for Outer Space" (1978) 6 J. Space L. 125-128.
Reitzer, L. La réparation comme conséquence de l'acte illicite en droit international (?aris: Sirey, 1938).
Reuter, Paul "Principes de Droit International Public", (1961 II) 103 RdC 423-656.
Reuter, Paul "Le dommage comme condition de la responsabilité internationale", Estudios de derecho internaçional homenaje al Professor Miaja de la Muela, vol. II (Madrid: Ed. Technos, 1979) 837-846.
Riee, ",'illiam Gorham "State Responsibility for Failure to Vindicate the Public Peace", (1934) 28 Am. J. Infl L 246-254.
Riedel, Eibe H. "Die Tatigkeit der International Law Commission im Jahre 1977" (1978) 21 Germ. Y. B. Int'l L 439-460.
1
1
1
~B~ib~lio~~~a~p~hy~ ________________________________________________ --AY
Rosenne, Shabtai "The Settlement of Treaty Disputes under the Vienna Convention of 1969" (1971) 31 Za6RV 1-62.
Roxburgh, Ronald F. International Conventions and third States (London: Longmans, Green, 1917).
Salmon, Jean "Les Circonstances excluant l'illicéité", Zemanek, Karl and Jean Salmon, Responsabilité Internationale (Paris: Pédone. 1987) 89-225.
Schenk von Stauffenberg, Berthold Grar Statut et Règlement de la Cour Permanente de Justice Internationale; Eléments d'Interprétation, Max-Planck-Institut fur au~Hindisches Recht und Vôlkerrecht, Berlin (Berlin: C. Heymann, 1934).
Schindler, Dietrich Die Schiedsgerichtsbarkeit seit 1914. Entwicklung und heuti~er Stand, Handbuch des Vôlkerrechts, vol. V, (Stuttgart: Kohlhammer, 1938).
Schütz, Hans Joachim "Die Tatigkeit der International Law Commission im Jahre 1978" (1979) 22 Germ. Y. B. Int'l L. 414-433.
Schwarzenberger, Georg International Law ailPlllied by International Courts and Tribunals, vol. l, 3rd ed. (London: Stevens, 1957).
Scott, James Brown Les travaux de la Cour permanente d'arbitra&e de la HaGue (New York: O~ford University Press, 1921).
Seidl-Hohenveldern, 19naz .. "Der Barcelolla-Traction-Fall" (1971) 22 OZ6ffR 255-309.
Serv~is, Jean and E. Mechellynck, eds Codes Belees, vo1.1 (Bruxelles: Emile Bruylant, 1989).
Simma, Bruno "Grundfragen der Staatenverantwortlichkeit in der Arbeit der International Law Commission" (1986) 24 ArchVR 357-407.
Smith, Delbert D. Space Stations, International Law and PQ1icy (Boulder, Colorado: Westview Press, 1979).
Starke, J. G. Introduction to International Law, 9th ed. (London: Butterworths, 1984).
1
BibliOjUaphy
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Strupp, Karl Eléments du droit international public; universel. européen et américain, vol. l, 2nd ed. (Paris: Editions internationales, 1930).
Tammes, A. J. P. "Soft Law", Essays on International & Comflarative Law in Honour of Judie Erades (The Hague: Martinus Nijhoff, 198 ) 187-195.
Tanzi, Attila "Is Damage a Distinct Condition for the Existence of an Internationally Wron~ful Act?" Spinedi, Marina and Bruno Simma, cds, United Nations Codification of State Responsibility (New York: Oceana, 1987) 1-33.
Thon, August Festrede. ~ehahen in der Universitatskirche ru Jena zur Akademischen Preisverlelhun~vom 16. Juni 1894 von Au~st Thon (Jena: UniversitatsBuchdruck G. euenhahn, 1894).
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Tomuschat, Christian "Grundpflichten des Individuums nach Vôlkerrecht" (1983) 21 ArehVR 289-315.
Triepel, Heinrich Vôlkerrecht und Landesrecht (Leipzig: C. L. Hirschfeld, 1899).
Tunkin, Grigory '''General Principles of Law' in International Law", Marcie, René, Hermann Mosler, Erik Suy and Karl Zemanek, eds, Internationale Festschrift rur Alfred Verdross (Münehen: Wilhelm Fink, 1971) 523-532.
Vasak, Karel 'Toward a Specifie Human Rights Law", Vasak, Karel, ed., The International pimensions of Human Ri~hts, vo1.2 (Paris: UNESCO, 1982) 671-679.
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i
Bibliwaphy
Vés4rhelyi,Istdn Restitution in International Law (Budapest, Akadémiai Kiad6, 1964).
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Verdross, Alfred Vôlkerrecht, 5th ed. (Wien: Springer, 1964).
Verdross, Alfred and Bruno Simma
XYlI
Universelles Vôlkerrecht - Theorie und Praxis, 3rd ed. (Berlin: Duncker und Humblot, 1984).
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Vitt, Elmar Pif' Marskolonie [:1 Rechtsfra2en der Planetenbesiedelun& (Dissertation, Kôln, 1989).
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BjbliOjVaphy XVIII
Zemanek, Karl "La Responsabilité Internationale des Etats pour Faits Intemationalement llicites, ainsi que pour Faits Internationalement Licites", Zemanek, Karl and Jean Salmon, Responsabi1ité Internationale (Paris: Pédone, 1987) 1-88.
Zemanek, Karl "Causes and Forms of International Liability" Cheng, Bin and E. D. Brown, eds, Contemporary Problems of International Law: Essays in honour of Geori Schwarzenbeq:er on his ei2htieth birthday (London: Stevens & Sons, 1988) 319-332.
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Table of Cases XIX
Table of Cases
Gust Adams (United States) v. Panama Arbitral award of May 22,1933, (1955) VI Rep.lnt'} Arb. A. 308-312.
Alabama Arbitral award of 1872; Moore, John Bassett, History and Digest of the International Arbitrations to which the United States has been a Party, vol. 1 (Washington: Government Printing Office, 1898) 495-682.
Ambatielos Claim Arbitral award of March 6, 1956, (1963) XII Rep.lnt'l Arb. A. 83-153.
Klaus Barbie Judgment of October 6, 1983, Cour de Cassation, Chambre Criminelle, (1983) 110 Clunet 779-786; Judgment of January 26, 1984, Cour de Cassation, Chambre Criminelle, (1984) 111 Clunet 308-315~ Judgment of December 20, 1985, Cour de Cassation, Chambre Criminelle, (1986) 113 Clunet 127-143.
Barcelona Traction, Light and Power Company Ltd. (Second Phase) Judgment of February 5, 1970, (1970) I.CJ. Reports 4-357.
Biens britanniques au Maroc espagnol Arbitral award of May 1, 1925, (1949) Il Rep. Int'l Arb. A. 615-742.
Jean-Baptiste Caire, Estate of (France) v. United Mexican States Arbitral award of June 7, 1929, (1952) V Rep. Int'l Arb. A. 516-534.
Louise O. Canah! (U.S.A.) v. United Mexican States Arbitral award ofOctober 15,1928, (1952) IV Rcp. Int'l ATb. A. 389-391.
Carthage Arbitral award of 1913, (1961) XI Rep. Int'} Arb. A. 448-461.
Chattin (United States v. Mexico) General Claims Commission, 1927, Opinions of Commissioners, 422; Briggs, Herbert W., The Law of Nations. Cases, Do<..'Uments, and Notes, 2nd ed. (New York: Appleton-Century-Crofts, 1952) 666.
Cheverau (France v. United Kingdom) Arbitral award of June 9, 1931, (1949) Il Rep. Int') Arb. A. 1113-1143.
Corfu Channel (Merits) Judgment of April 9, 1949, (1949) I.CJ. Reports 4-169.
Dogger Bank (Russie contre Grande Bretagne) Arbitral award; Scott, James Brown, Les travaux de la Cour permanente d'arbitrage de la Hague (New York: Oxford University Press, 1921) 427-434.
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Table of Cases
Adolf Eichmann Judgment of the District Court of Jerusalem of December 12, 1961, and judgment of the Supreme Court of Israel of May 29, 1962, (1968) 36 Int'l L. Rep. 5-276 and 277-342 respectively.
Factory at Chorz6w (Claim for Indemnity) (Merits) Judgment of July 26, 1927, (1929) l'.C.IJ. Reports, Series A, No.17.
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xx
Joint and final report of January 5, 1935, (1949) III Rep.lnt'I Arb. A 1613-1618.
Indemnité Russe Arbitral award of 1912, (1961) XI Rep. Int'I ATb. A 419-447.
Interhandel (S\\itzerland v. U.S.A.) Judgment of March 21, 1959, (1959) I.CJ. Reports 6-125.
International Status of South-West Africa Judgment of 1950, (1950) I.CJ. Reports 128-219.
Jamaica Arbitral award; Moore, John Bassett, International Adjudications - Ancient and Modern History and Documents, together with Mediatorial Reports, Advisory Opinions, and the Decisions of Domestic Commissions on International Claims, Modern Series IV (New York: Oxford University Press, 1931) 489-518.
Laura May Buffington Janes et al. (lI.S.A.) v. Vaited Mexican States Arbitral award of November 16, 1925, (1952) IV Rep. Int'I Arb. A. 82-98.
George Adams Kennedy (V.S.A) v. United Mexican States Arbitral award of May 5, 1927, (1952) IV Rep. Int'I Arb. A 194-203.
Lusitania Arbitral award of November 1, 1923, (1956) VII Rep. Int'I Arb. A. 32-44.
Francisco Manén (United Mexican States) v. United States of America Arbitral award of April 27, 1927, (1952) IV Rep. Int'l Arb. A. 173-190.
Gertrude Parker Massey v. Mexico Advisory opinion of April 15, 1927, (1927) 21 Am. J. Int'I L 783-791.
Mavrommatis Palestine Concessions Judgment of August 30, 1924, (1924) P.C.IJ. Reports, Series A, No.2.
Mexican Shepherds Arbitral award; Moore, John Bassett, A digest of internationallaw as embodied in diplomatie discussions, treaties and other international agreements, international awards, the decisions of municipal courts, and the writings of jurists (Washington: Govemment Printing Office, 19(6) 787-790.
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Table of Cases XXI
NauJilaa (Responsabilité d'Allemagne à raison des domma~es causés dans les colonies portugaises du Sud de l'Afrique [!!entence sur le principe de la responsahilité]) Arbitral award of June 30, 1928, (1949) 11 Rep.lnt'l Aro. A. 1011-1033.
Neptune Arbitral award of 1797; Moore, John Basselt, History and Digest of the Intt'rnational Arbitrations to which the United States has been a Party, vol. IV (Washington: Government Printing Office, 1898) 6.
North American Dredging Company of Texas (U.S.A) v. United Mexican States Arbitral award of March 31, 1926, (1952) IV Rep. Int'I Arh. A. 26-35.
Norwegian Shipowners Claims (Norway v. United States) Arbitral award of October 13, 1922, (1948) 1 Rep. Infl ATb. A. 307-346.
Walter A. Noyes (United States) v. Panama Arbitral award of June 21, 1933, (1955) VI Rep.lnt'I Arb. A. 321-324.
Différend OUoz Arbitral award ofSeptember 18, 1950, (1964) XIII Rep. Int'I Arb. A. 222-242.
Owners of the Jessie, the Thomas F. Bayard and the Pescawha (Great Britain) v. United States Arbitral award of December 2, 1921, (1955) VI Rep. Int'I Arb. A. 57-60.
Panevezys-Saldutiskis Railway Judgment of February 28, 1939, (1939) P.C.lJ. Reports, Series A/B, No.76.
Peleus Judgment, War Crimes Court, Hamburg, 1945; Green, L. G., International Law through Cases, 2nd ed. (London: Stevens & Sons, 1959) 674.
Propriétés religieuses (France, Royaume-Uni, Espagne contre Portugal) Arbitral awards of September 2, 1920, (1948) 1 Rep. Int'I Arh. A. 7-57.
Réclamations des sujets italiens résidant au Perou Arbitral award of September 30, 1901, (1966) XV Rep. Int'I Arh. A. 399-453.
Reparation for Injuries Suffered in the Service of the United Nations Advisory opinion, (1949) I.CJ. Reports 174-220.
Representatives of Elizabeth Cadenhead (Great Britain) v. United States Arbitral award, (1955) VI Rep. Int'I Arb. A. 40-41.
Harry Roberts (U.S.A.) v. United Mexican States Opinion and decision of November 2,1926, (1927) 21 Am. J.lnt'I L. 357-361.
Rudloff Arbitral award of December 31, 1903, (1959) IX Rep. Int'l Arb. A.244-261.
Table of Cases
John Rylands and Jihu Horroks v. Thomes Fletcher Judgment; (1868) L. R. 3 H. L. 330-342.
xxn
Sambiaggio (Italy v. Venezuela) Arbitral award; Venezuelan Arbitrations of 1903, Senate Doc. 316, 58th Congo 2nd Sess. 1904,4620 Report of Jackson H. Ralston, 666.
Shufeldt Claim Arbitral award of July 24, 1930, (1949) II Rep. Int'J Arb. A 1079-1102.
TraiJ Smelter (U.S.A. v. Canada) Arbitral award of April 16, 1938, and MaTch 11, 1941, (1949) III Rep. Int'I Arb. A. 1905-1982.
Tribolet (United States v. Mexico) General Claims Commissioners, Opinions (1931), 68, (1929-1930) 95 Ann. Dig ..
United States Diplomatie and Consular Staff in Tehran (United States of America v. Iran) Judgment of May 24, 1980, (1980) I.CJ. Reports 3-65.
H. G. Venable (U.S.A.) v. United Mexican States Arbitral award of July 8, 1927, (1952) IV Rep. Int'I Arb. A 219-261.
Vincent et al. v. Lake Erie Transportation Company Judgment; 124 N. W. 221-222.
Wal Wal Incident Arbitral award of September 3, 1935, (1949) III Rep. Int'I Arb. A. 1657-1667.
S. S. Wimbledon Judgment of January 16, 1923, (1923) P.C.IJ. Reports, Series A, No.1.
Thomas H. Youmans (U.S.A.) v. United Mexiean States Arbitral award of November 23,1926, (1952) IV Rep. Int'I Arb. A. 110-117.
