YEARBOOK INTERNATIONAL LAW COMMISSION 1985 · 2015. 6. 15. · (c) Judicial decisions and State practice other than agreements 1. Definition of harm (a) Multilateral agreements ,

A/CN.4/SER.A/1985/Add.l (Part 1/Add.l)

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1985Volume II

Part One

Documents of the thirty-seventh session{Addendum)

UNITED NATIONS

A/CN.4/SERA/1985/Add.l (Part 1/Add.l)

YEARBOOKOF THE

INTERNATIONALLAW COMMISSION

1985Volume II

Part One

Documents of the thirty-seventh session{Addendum)

UNITED NATIONSNew York, 1989

NOTE

Symbols of United Nations documents are composed of capital letters com-bined with figures. Mention of such a symbol indicates a reference to a UnitedNations document.

References to the Yearbook of the International Law Commission are ab-breviated to Yearbook . . ., followed by the year (for example, Yearbook . . .1980).

The Yearbook for each session of the International Law Commission comprisestwo volumes:

Volume I: summary records of the meetings of the session;Volume II (Part One): reports of special rapporteurs and other documents con-

sidered during the session;Volume II (Part Two): report of the Commission to the General Assembly.All references to these works and quotations from them relate to the final

printed texts of the volumes of the Yearbook issued as United Nations publications.

The two studies prepared by the Secretariat, which were originally issued inmimeographed form, are reproduced in the present volume with the editorialchanges required for the presentation of the final texts.

A/CN.4/SER.A/1985/Add.I (Part I/Add.1)

UNITED NATIONS PUBLICATION

Sales No. E.86.V.9 (Part 1/Add.l)

ISBN 92-1-133324-5ISSN 0082-8289

O35OOP

CONTENTSPage

International liability for injurious consequences arising out of acts not prohibited by in-ternational law (agenda item 8)

Document A/CN.4/384. Survey of State practice relevant to international liability forinjurious consequences arising out of acts not prohibited by international law,prepared by the Secretariat 1

Relations between States and international organizations (second part of the topic)(agenda item 9)

Document A/CN.4/L.383 and Add. 1-3. Practice of the United Nations, the special-ized agencies and the International Atomic Energy Agency concerning their status,privileges and immunities: supplementary study prepared by the Secretariat 145

INTERNATIONAL LIABILITY FOR INJURIOUS CONSEQUENCES ARISINGOUT OF ACTS NOT PROHIBITED BY INTERNATIONAL LAW

[Agenda item 8]

DOCUMENT A/CN.4/384*

Survey of State practice relevant to international liability for injurious consequencesarising out of acts not prohibited by international law, prepared by the Secretariat

[Original: English][16 October 1984}

CONTENTS

Abbreviations

Note concerning quotations.

INTRODUCTION.

Chapter

I. ACTIVITIES CAUSING INJURIES BEYOND THE TERRITORIAL JURISDICTION OR CONTROL OF THE

STATE WHERE THEY ARE CONDUCTED

A. Forms of activities(a) Multilateral agreements(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

B. Location of origin of activities1. Activities conducted within the territorial jurisdiction or under the control of the ac-

ting State(a) Multilateral agreements(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

2. Activities conducted outside the territorial jurisdiction or control of the acting State ...(a) Multilateral agreements(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

11. ASSESSMENT OF ACTIVITIES FOR THEIR INJURIOUS IMPACT

(a) Multilateral agreements(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

A. Data collection(a) Multilateral agreements(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

B. Prior negotiation and consultation(a) Multilateral agreements(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

1. Definition of harm(a) Multilateral agreements ,(b) Bilateral agreements(c) Judicial decisions and State practice other than agreements

PuruRruphs

1-19

PaKe

3

3

20-5420-3623-2728-3132-36

37-54

39-4940-4344-4647-4950-5450-525354

55-248

56-6061-6465-68

69-9670-7576-8384-96

97-19599-103104-107108-113

114-167116-135136-150151-167

66788

8

9991010101111

11

121313

14141619

22222324

26273235

Originally issued under the symbol ST/LEG/15 and Corr.l.

Documents of the thirty-seventh session—Addendum

Chupler Paragraphs Page

2. Competence to decide what constitutes harm 168-195 40(a) Multilateral agreements 170-175 40(b) Bilateral agreements 176-184 41(c) Judicial decisions and State practice other than agreements 185-195 43

C. Balancing of interests 196-240 46(a) Multilateral agreements 198-207 46(b) Bilateral agreements 208-215 49(c) Judicial decisions and State practice other than agreements 216-240 51

D. Exoneration from the duty of prior negotiation 241-248 56(a) Multilateral agreements 242-244 56(b) Bilateral agreements 245-246 57(c) Judicial decisions and State practice other than agreements 247-248 57

III. PREVENTIVE MEASURES 249-340 58

A. Management and monitoring 252-299 58(a) Multilateral agreements 252-270 58(b) Bilateral agreements 271-286 63(c) Judicial decisions and State practice other than agreements 287-299 66

B. Provisions for prevention of harm 300-340 68(a) Multilateral agreements 301-309 68(b) Bilateral agreements 310-318 69(c) J udicial decisions and State practice other than agreements 319-340 71

IV. GUARANTEES OF COMPENSATION FOR INJURIES 341-357 74

(a) Multilateral agreements 342-349 74(b) Bilateral agreements 350-352 76(c) Judicial decisions and State practice other than agreements 353-357 76

V. LIABILITY 358-508 77

(a) Multilateral agreements 384-389 8 2

(b) Bilateral agreements 390-394 83(c) Judicial decisions and State practice other than agreements 395-404 84

A. Balancing of interests 405-412 86(a) Multilateral agreements 407-410 86(b) Bilateral agreements 411-412 87

B. Operator's liability 413-437 87(a) Multilateral agreements 415-430 88(b) Bilateral agreements 431-434 93(c) Judicial decisions and State practice other than agreements 435-437 93

C. State liability 438-483 94(a) Multilateral agreements 439-445 94(b) Bilateral agreements 446-462 95(c) Judicial decisions and State practice other than agreements 463-483 98

D. Exoneration from liability 484-508 101(a) Multilateral agreements 485-504 101(b) Bilateral agreements 505-507 105(c) Judicial decisions and State practice other than agreements 508 106

VI. COMPENSATION 509-621 106

A. Content 510-567 1061. Compensate injuries 510-544 106

(a) Multilateral agreements 510-516 106(6) Bilateral agreements 517-521 107(c) Judicial decisions and State practice other than agreements 522-544 108

2. Forms of compensation 545-555 111(a) Multilateral agreements 546-549 111(b) Bilateral agreements 550-552 112(c) Judicial decisions and State practice other than agreements 553-555 112

3. Limitation on compensation 556-567 113(a) Multilateral agreements 557-563 113(b) Bilateral agreements 564-566 114(c) Judicial decisions and State practice other than agreements 567 115

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

Paragraphs Page

B. Authorities competent to award compensation 568-606 1151. Local courts and authorities 570-584 115

(a) Multilateral agreements 570-580 115(b) Bilateral agreements 581-583 n 7

(c) Judicial decisions and State practice other than agreements 5 84 * * 82. International courts, arbitral tribunals and joint commissions 585-589 U8

(a) Multilateral agreements 585-586 1 1 8

(b) Bilateral agreements 587-588 1 2 2

(c) Judicial decisions and State practice other than agreements 589 12 2

3. Applicable law 590-606 I 2 2

(a) Multilateral agreements 590-594 1 2 2

(b) Bilateral agreements 595-601 123(c) Judicial decisions and State practice other than agreements 602-606 123

C. Enforcement of judgments 607-621 124(a) Multilateral agreements 608-617 124(b) Bilateral agreements 618-620 126(c) Judicial decisions and State practice other than agreements 621 127

ANNEXESPage

I. Multilateral treaties 128

II. Bilateral treaties 132

III. Judicial decisions and State practice other than agreements 138

ECEIAEAICJIMCOIMOINTALOASOECDPCIJUNEP

ABBREVIATIONS

Economic Commission for EuropeInternational Atomic Energy AgencyInternational Court of JusticeInter-Governmental Maritime Consultative Organization (now IMO)International Maritime OrganizationInter-American Institute of International Legal StudiesOrganization of American StatesOrganisation for Economic Co-operation and DevelopmentPermanent Court of International JusticeUnited Nations Environment Programme

I.C.J. ReportsP.C.I. J., Series A

P.C.I.J., Series A/B

ICJ, Reports of Judgments, Advisory Opinions and OrdersPCIJ, Collection of Advisory Opinions (Nos. 1-24, up to and including

1930)PCIJ, Judgments, Orders and Advisory Opinions (Nos. 40-80: beginning

in 1931)

NOTE CONCERNING QUOTATIONS

In quotations, words or passages in italics followed by an asterisk were not italicized in the originaltext.

Unless otherwise indicated, quotations from works in languages other than English have beentranslated by the Secretariat.


Introduction

1. At its thirty-fifth session, in 1983, the InternationalLaw Commission requested that three parts of the studyprepared by the Secretariat on multilateral and bilateralagreements and judicial decisions and State practiceother than agreements relating to the question of inter-national liability for injurious consequences arising outof acts not prohibited by international law be madewidely available.1 The three parts of that study wereprepared between 1982 and 1983 for the use of the lateRobert Q. Quentin-Baxter, the Special Rapporteur forthat topic. At the request of the Commission, theSecretariat has now updated them and combined themin a single volume.

2. It is not the purpose of this study to define, alter orin any way affect the scope or the framework of the sub-ject under consideration by the Commission. Theoutline of the study and the individual papers wereprepared when the Commission was still at thepreliminary stage of examining the scope and theframework of the topic. On the basis of priorpreliminary studies and taking into account the reportsof the Special Rapporteur as well as the Commission'sreports on the question, the Secretariat examined thesubject, as well as State practice, in a factual context.The presentation of material and information in thisdocument does not imply the expression of any opinionwhatsoever on the part of the Secretariat of the UnitedNations concerning its content nor on the positions thatStates may have adopted regarding specific cases oragreements referred to therein.

3. Briefly, the factual context of the subject is markedby the increasingly intensive use in many different formsof the resources of the planet for economic, industrialor scientific purposes. Because of their economic andecological interdependence, activities occurring withinor beyond the territorial control or jurisdiction of Statesmay have an injurious impact on other States or theirnationals. To cite only one example, at this stage of thetechnological revolution, the activities of productiveplants may cause harmful consequences which maycross boundaries, causing atmospheric changes through"acid rain" or through river and coastal waters. Fur-thermore, the scarcity of natural resources, the need forthe more efficient use of resources and the creation ofsubstitute resources have led to innovative productionmethods, sometimes with unpredictable consequences.2

This factual aspect of global interdependence has beendemonstrated by events that have frequently resulted ininjuries beyond the territorial jurisdiction or control ofthe acting State.3

4. Activities having an extraterritorial injurious im-pact are also conducted by private entities. These en-tities operate within the territorial jurisdiction or underthe control of the acting State, within the shared domainor within the territorial jurisdiction or under the controlof the injured State.4 For economic reasons, private en-tities transfer from one State to another hazardous andheavily polluting industries such as those producingsteel, aluminium, asbestos and certain toxic chemicals.5

The injuries may be considerable. Reports indicate thatthese injuries are not limited to the recipient State, butsometimes cross into neighbouring States, and indeedoccasionally even to the original exporting State.6

5. Acts with extraterritorial injurious impact havealways been met with in international relations and havebeen of concern to international law. States appear tohave recognized that, in the exercise of their exclusiveauthority within or beyond their territories, over theirships, for example, they are expected to have due regardfor the interests of other States that may adversely be af-fected. The present study reviews a number of examples

1 Yearbook . . . 1983, vol. II (Part Two), p. 83, para. 286.2 It is not the purpose of this study to describe the factual instances

of global interdependence. The above brief description is intendedmerely to indicate the reasons for the choice of materials on Statepractice.

3 The "acting State", in this study, refers to the State within whoseterritorial jurisdiction or under whose control an activity has takenplace that has caused or may cause injuries beyond its territorialjurisdiction or control to other States or their nationals.

4 The "injured State" or "affected State" refers to the State thathas suffered or may suffer injuries as a result of an activity by theacting State. The injuries may be to the State's property or the privateproperty of its nationals.

5 These polluting industries are sometimes transferred fromdeveloped to developing countries, where labour and production costsare lower and standards of environmental regulations are looser orless strictly enforced. See B. Castleman, The Export of HazardousFactories to Developing Nations (1978).

6 See North-South: a Programme for Survival, report of the In-dependent Commission on International Development Issues underthe chairmanship of Willy Brandt (London, Pan Books, 1980).

The States members of OECD have attempted to provide for en-vironmental protection in "Guidelines for multinational enterprises",which the OECD Council was to review in 1984. See also OECD,Economic and Ecological Interdependence (Paris, 1982), p. 66.

In 1983, the Inter-Governmental Working Group on TransnationalCorporations prepared a comprehensive draft code of conduct fortransnational corporations. The draft includes a section on en-vironmental protection that provides for measures to avoid andremedy environmental damage, to supply relevant information todeveloping countries about the potential hazards involved in certainindustrial activities, etc. The principles of environmental protection ofthe code of conduct provide as follows:

"Environmental protection"44. Transnational corporations, in carrying out their productionactivities, shall comply with national policies, laws and regulationsof the countries in which they operate with regard to preservation ofthe environment. They shall take steps to improve the environmentand make efforts to develop and apply adequate technologies forthis purpose."45. Transnational corporations shall supply to the authorities ofthe countries in which they operate all relevant information concer-ning:

"(a) Features of their products or processes which may harm theenvironment and the measures and costs required to avoid harmfuleffects;

"(b) Prohibitions, restrictions, warnings and other regulatorymeasures imposed in other countries, on grounds of protection ofthe environment, on products and processes which they have in-troduced or intend to introduce in the countries concerned."46. Transnational corporations shall be responsive to requestsfrom Governments of the countries in which they operate and beprepared where appropriate to co-operate with internationalorganizations in their efforts to develop and promote national andinternational standards for the protection of the environment."(E/C.10/1983/S/4, pp. 11-12.)


of State co-operation, evidenced by treaties, in whichthe parties have agreed on procedures under which cer-tain activities may be conducted. The substance of theseagreements reveals certain procedural and substantiveprinciples by which the parties have accommodatedtheir conflicting interests: "good-neighbourliness","due care", "equitable principles".

6. The materials examined in this study have beenselected and analysed on the basis of their relevance tothe concepts of good-neighbourliness, due care,equitable principles, prior negotiation and consultation,balance of interests and prevention and minimization ofinjuries to others in the undertaking of activities withinor beyond the territorial jurisdiction or control ofStates. It is not suggested that every example of Statepractice examined deals only and directly with acts "notprohibited by international law". Their selection wasdictated by their relevance to the topic of liability or bythe pertinence of the activities examined, whether or notthey were wrongful. It is therefore pertinent to considerthe handling of some disputes in which there was nogeneral agreement as to the lawfulness or unlawfulnessof the acts or omissions giving rise to injurious con-sequences; for example, the hydrogen bomb tests in theatmosphere in the 1950s and 1970s generated debateconcerning their lawfulness among jurists. Similarly,there was extensive discussion among jurists concerningthe lawfulness of the hydrogen bomb tests conducted bythe United States of America on the high seas in 1954,although this matter was never submitted for judicialdecision.7 The French nuclear tests gave rise to the samedebate. That matter was submitted to the InternationalCourt of Justice for a decision, but the judgment wasnot rendered on the merits of the case.8

7. Although certain treaties deal with matters that maybe characterized as "wrongful acts", they relate toproblems relevant to the topic of international liabilityand have been included for that reason. These treatiesdemonstrate the relevance of the concepts of due care,good-neighbourliness, etc., and the forms in which theyhave been used. A detailed examination of these treatiesreveals how a particular activity with potentially in-jurious impact has been undertaken under some form ofsupervision, what preventive measures are required inorder to avoid or at least to minimize injuries to otherinternational actors, what kind of injuries are involvedand at what point they become unacceptable and entailliability and, finally, what are the remedies. Since this isa survey of past trends, treaties have been selectedwhether or not they are still in force.

8. A large number of bilateral agreements haveapplied the concepts of good-neighbourliness, due

7 See e.g. E. Margolis, "The hydrogen bomb experiments and inter-national law", The Yale Law Journal, New Haven, Conn., vol. 64,1955, p. 629; M. S. McDougal and N. A. Schlei, "The hydrogenbomb tests in perspective: lawful measures for security", ibid.,p. 648; M. S. McDougal, "The hydrogen bomb tests and the interna-tional law of the sea", The American Journal of International Law,Washington, D.C., vol. 49, 1955, p. 356; and H. J. Taubenfeld,"Nuclear testing and international law", Southwestern Law Journal,Dallas, Tex., vol. 16, p. 365.

' Nuclear Tests {Australia v. France; New Zealand v. France),judgments of 20 December 1974, I.C.J. Reports 1974, pp. 253and 457.

care, etc., in the utilization of shared rivers. Since mostof those agreements were examined by Mr. Schwebel inhis third report on the law of the non-navigational usesof international watercourses,9 only some of them areexamined in this study.

9. Judicial decisions of domestic courts, of interna-tional courts and of arbitral tribunals involving effortsby third-party decision-makers are relevant for thesubstantive principles they examine and sometimes forthe factors they balance against one another.Documents exchanged between foreign ministries andgovernment officials are important sources of Statepractice, as are settlements of disputes through non-judicial methods. Although they are not products ofconventional judicial procedure, they may represent apattern in trends regarding substantive issues in dispute.Statements made by the State officials involved as wellas the content of the actual settlement of disputes will beexamined for their possible relevance to the substantiveprinciples of liability.

10. This study has not ignored the difficulties ofevaluating a particular instance as "evidence" of Statepractice.10 Different policies may motivate the conclu-sion of treaties or decisions. Some may be compromisesor accommodations for extraneous reasons. Butrepeated instances of State practice, when they followand promote similar policies, may create expectationsabout the authoritativeness of those policies in futurebehaviour. Even though some of the policies may nothave been explicitly stated in connection with the rele-vant events, or may purposely and explicitly have beenleft undecided, continuous similar behaviour may leadto the creation of a customary norm. Whether or not thematerials examined here are established as customarylaw, they demonstrate a trend in expectations and maycontribute to the clarification of policies concerningsome detailed principles of the international liabilitytopic. Practice also demonstrates ways in which com-peting principles, such as "State sovereignty" and"domestic jurisdiction", are to be reconciled with thenew norms.

11. In referring to State practice, caution must be ex-ercised in extrapolating principles, for the more general

9 Yearbook . . . 1982, vol. II (Part One), p. 65, document A /CN.4/348.

10 For example, abstention by States from engaging in activitieswhich, although lawful, may cause injuries beyond their territorialjurisdiction, may or may not be relevant to creating customarybehaviour. The Permanent Court of International Justice and its suc-cessor, the International Court of Justice, have observed that the merefact of abstention, without careful consideration of the motivatingfactors, is insufficient proof of the existence of an international legalcustom. Abstention by States from acting in a certain way may have anumber of reasons, not all of which have legal significance. See thejudgment rendered on 7 September 1927 by the Permanent Court ofInternational Justice in the Lotus case (P.C.I.J., Series A, No. 10,p. 28). A similar point was made by the International Court of Justicein its judgment of 20 November 1950 in the Asylum case (I.C.J.Reports 1950, p. 286), and in its judgment of 20 February 1969relating to the North Sea Continental Shelf cases (/. C.J. Reports 1969,p. 44, para. 77). See also C. Parry, The Sources and Evidences of In-ternational Law (Manchester University Press, 1965), pp. 34-64.

However, in its judgment of 6 April 1955 in the Nottebohm case(second phase), the Court relied on State restraint as evidence of theexistence of an international norm restricting freedom of action(I.C.J. Reports 1955, pp. 21-22).


expectations about the degree of tolerance concerningthe injurious impact of activities can vary from activityto activity. For example, the general expectations aboutappropriate behaviour concerning economic andmonetary activities may differ, as far as their extra-territorial injurious impact is concerned, from thoseregarding experimental or industrial activities, or ac-tivities relating to self-defence, self-help, the environ-ment, etc.

12. The materials examined in this study are not, ofcourse, exhaustive. They relate primarily to activitiesconcerning the physical use and management of the en-vironment, for State practice in regulating activitiescausing injuries to other States has been developed moreextensively in this area. The format of the study is alsodesigned to be a useful source material; hence, relevantextracts from treaties, judicial decisions and officialcorrespondence are also cited.

13. The outline of the study has been formulated onthe basis of functional problems which may appear rele-vant to the topic of international liability. Since thefocus of the topic appears to be on the continuing flowof activities from the stage of initiation to that of com-pletion, the study follows a similar chronological order.

14. Chapter I describes activities which have beenregulated for their possible extraterritorial injurious im-pact in terms of both their nature and their location oforigin.

15. Chapter II examines the process of initiation of ac-tivities that may entail extraterritorial injurious impact.It points out different stages of this process in which theacting State, prior to undertaking the activity, attemptsto assess the impact of the activity on other States andinternational actors. State practice demonstrates theexistence of a rather complex procedure for assessingthe impact of activities, such as the collection of data bythe acting States about the activities and their possibleimpact, negotiation with potentially affected (injured)States and the balancing of the interests involved by cor-

relating the benefits of carrying out the activity with itscost, etc.

16. Chapter III examines the procedure by which at-tempts are made to prevent or at least minimize extra-territorial injuries, and reviews the monitoring systemprovided in treaties and recommended in State practice.It also points out the types of or recommended changesin activities in order to prevent or minimize their in-jurious impact. It appears that monitoring systems mayinvolve co-operation among the acting and the injuredStates, or may be entrusted to an independent non-governmental body, etc.

17. Chapter IV examines the requirements ofguarantees for payment of compensation in relation toactivities with strong potential extraterritorial injuriousimpact whose performance has been agreed upon by theacting and the injured States.

18. Chapter V examines the issue of liability for extra-territorial injurious impact. Despite compliance withprocedural requirements designed to prevent orminimize damage, injuries may be suffered by otherStates and their nationals. This chapter examines theissue of liability. It points out that in determining theliability of the acting State a balance is struck betweenthe interests of the parties and those of the larger com-munity. It also examines the extent to which theoperator of the activity or the State in whose territory,or under whose control, the activity has taken place, isliable. Chapter V also examines the circumstances thatpreclude the liability of the acting State.

19. Finally, chapter VI examines the issue of com-pensation and damages. It reviews the relevant treatyprovisions and forms of State practice concerningcompensable injuries and other forms of compensation.It points out that some treaties provide limitations oncompensation. It examines the authorities recognized inState practice as competent to decide on compensationand reviews the enforceability of judgments awardingcompensation.

CHAPTER I

Activities causing injuries beyond the territorial jurisdiction or controlof the State where they are conducted

A. Forms of activities

20. Activities causing injuries beyond the territorialjurisdiction or control of the acting State vary. Theymay include use of airspace, nuclear or industrial ac-tivities, conservation and utilization of economicallyimportant resources, and even communication andbroadcasting. Some of these activities may cause moresubstantial injuries than others, and the injuries maysometimes be devastating. State practice appears todemonstrate no significant relationship between theforms of activities and the substantive or procedural re-quirements regulating them. However, a relationshipexists between the injury or harm those activities may

cause and the substantive and procedural requirementsapplicable thereto, that is, the rules authorizing or notsuch activities and the conditions governing their per-formance. Ensuring compliance with the norms of pro-cedure and observance of the concepts of due care,good-neighbourliness, etc., becomes more complex asthe possibility and extent of injury resulting from the ac-tivities become more substantial. Activities causing in-juries that could be devastating may be banned outright.Some nuclear testing may be included in this category,as illustrated by the 1963 Treaty Banning NuclearWeapon Tests in the Atmosphere, in Outer Space andUnder Water. Similarly, the emplacement of nuclearweapons and other weapons of mass destruction on the


sea-bed and the ocean floor and in the subsoil thereof,"as well as military or any hostile use of environmentalmodification techniques,12 have been prohibited bymultilateral treaties. The treaties dealing with thetwo latter activities provide for monitoring or "verifi-cation" of compliance with treaty obligations by itssignatories. Therefore, regardless of the similarity in the"form" of these three activities and their regulation bytreaties, the actual reason for banning them is the extentof their harmful consequences, which has led to a policydecision by their signatories to ban them altogether.Sometimes the extent of injuries may not lead to a totalbanning of an activity, but to partial or temporary ban-ning or to substantial revision of the form in which theactivity may be carried out, as for instance in the TrailSmelter case.

21. At a very general level, injuries caused by activitiesbeyond the territorial jurisdiction or control of the act-ing State may be divided into three categories. The firstcategory covers injuries generally considered minor andexpected to be tolerated among States without com-pensation. The second category is not generally ex-pected to be tolerated, unless with the consent of the in-jured State, or against payment of compensation. Thethird category comprises injuries that are devastatingand not generally expected to be tolerated at all. Statepractice shows that it is extremely difficult to identifythe thresholds separating the three categories of in-juries. It may be easier to pinpoint activities leading tothe third category of injuries; these activities are nor-mally banned. Treaties banning some of them refer inthe preamble to the more general expectations of thecommunity, the promotion of peace and security andother principles of the United Nations Charter. Themain difficulties arise in identifying the threshold be-tween the first and second categories of injuries, that is,in identifying the types of activities and the types of in-juries concerning which the acting State has to consultthe potentially injured State, or take measures to pre-vent the injury. It appears, so far, that State practice hasnot dealt with this question categorically and in a singleformula. Sometimes it is the nature of the resourcesbeing used that is taken as the point of departure, suchas shared rivers, the high seas or airspace. At othertimes, the attempt has been made to determine the ex-pectations shared by the parties. Expectations are em-bodied in treaties, official correspondence and generalrelations between States. At the most general level, Statepractice, both in treaties and in judicial decisions, hasreferred to the concepts of good-neighbourliness, duecare, equitable principles, etc., as guidelines todistinguish activities with tolerable injuries from thoseresulting from the second category of injuries.

22. It is not only activities that may cause extra-territorial injuries; inactivity may also lead to injuries.The 1949 judgment of the International Court of Justicein the Corfu Channel case leads to this conclusion. Thedecision of the German Constitutional Law Court in the

Donauversinkung case (1927), involving the States ofWtirttemberg and Prussia versus the State of Baden andregarding their rights in the flow of the waters of theDanube, bears on the question of inactivity. Holdingthat "Baden must desist from injuring her neighbour",the Court further stated that Baden did "not need toeliminate the natural loss of water that would occur inthe storage area even if the dam were not there, but onlythe augmented seepage caused by the dam". As to theprohibition by the State of Baden of measures to renderit possible for the waters of the Danube to flow onwardsrather than to run off to the Aach, the Court consideredthat Baden could not justify it on the grounds that "inthis way she is only maintaining the natural conditionswith respect to the water", and that while a State "is notobliged to interfere, in the interests of another State,with the natural processes affecting an internationalriver", the action of Baden in that particular caseamounted to "the neglect of any orderly work ofmaintenance" along that stretch of the river. The Courtheld that the State of Baden was "therefore required toeliminate the increased seepage caused by herinactivity"* .'3

(a) Multilateral agreements

23. Many activities with possible extraterritorial in-jurious consequences have been regulated bymultilateral treaties. They include the use of nuclearmaterials, industrial activities, disposal of wastes, etc.Multilateral treaties regulating nuclear activities includethe 1963 Vienna Convention on Civil Liability forNuclear Damage, the 1962 Convention on the Liabilityof Operators of Nuclear Ships, the 1960 Convention onThird Party Liability in the Field of Nuclear Energy andthe 1963 Treaty Banning Nuclear Weapon Tests in theAtmosphere, in Outer Space and Under Water.

24. The 1952 Convention on Damage caused byForeign Aircraft to Third Parties on the Surface coverssome space activities, while the 1972 Convention onInternational Liability for Damage caused by Space Ob-jects deals with outer space activities.

25. Some polluting activities are covered by the 1960Convention concerning the Protection of Lake Con-stance against Pollution, the 1969 International Con-vention on Civil Liability for Oil Pollution Damage, the1973 International Convention for the Prevention ofPollution from Ships and the 1972 Convention on thePrevention of Marine Pollution by Dumping of Wastesand other Matter. The 1982 United Nations Conventionon the Law of the Sea provides in its article 195 thatStates "shall act so as not to transfer, directly or in-directly, damage or hazards from one area to another ortransform one type of pollution into another". Article196 of the Convention refers to pollution resulting fromthe use of technologies or the intentional or accidentalintroduction of alien or new species in a particular partof the marine environment where they might causesignificant and harmful changes.

" Treaty of 11 February 1971 on the Prohibition of the Emplace-ment of Nuclear Weapons and other Weapons of Mass Destruction onthe Sea-bed and the Ocean Floor and in the Subsoil thereof.

12 Convention of 10 December 1976 on the Prohibition of Militaryor any other Hostile Use of Environment Modification Techniques.

13 Wurttemburg and Prussia v. Baden (1927) (Entscheidungen desReichsgerichts in Zivilsachen (Berlin, 1927), vol. 116, appendix, p. 18;Annual Digest of Public International Law Cases, 1927-1928 (Lon-don, 1931), vol. 4, p. 128, case No. 86). See also G. H. Hackworth,ed., Digest of International Law (Washington, D.C., 1940), vol. I,pp. 596-599.


26. Among the conventions relating to the conser-vation of economically important fish stocks, the 1966International Convention for the Conservation ofAtlantic Tunas and the 1949 International Conventionfor the Northwest Atlantic Fisheries may be named.

27. Conventions dealing with communications andbroadcasting include the 1927 InternationalRadiotelegraph Convention, with general regulationsand additional regulations, the 1932 InternationalTelecommunication Convention and the 1936 Inter-national Convention concerning the Use of Broad-casting in the Cause of Peace.

(b) Bilateral agreements

28. A great number of bilateral agreements relate tothe utilization of lakes or rivers shared by the contract-ing States. Bilateral agreements may also relate tonuclear activities and materials. For example, the 1966Convention between Belgium and France onradiological protection with regard to the installationsof the Ardennes nuclear power station is concerned withradiological protection in connection with the nuclearpower plant at Chooz, belonging to the Societed'energie nucleaire franco-beige des Ardennes, a joint-stock company created by France and Belgium andoperating in French territory near the Belgian border.Similarly, the exchange of letters of 16 July 1976 cons-tituting an agreement between France and the USSRconcerning the prevention of accidental or unauthorizeduse of nuclear weapons relates to the use of nuclearmaterials that may cause injuries to the other contrac-ting party.

29. Bilateral agreements have been concluded toregulate the transport of hazardous substances and theconduct of activities affecting climate and weather. Thefirst matter was the subject of the 1973 Agreement be-tween Norway and the United Kingdom relating to thetransmission of petroleum by pipeline from the EkofiskField and neighbouring areas to the United Kingdom.A similar agreement was concluded between the FederalRepublic of Germany and Norway,14 while Canada andthe United States of America concluded an agreementconcerning weather modification activities.15

30. Some bilateral agreements deal with any activitiesthat may have harmful consequences in the neighbour-ing State across the border. The most recent agreementof this kind was signed between the United States ofAmerica and Mexico on 14 August 1983." The pream-ble to that Agreement recognizes the importance of a"healthful" environment for the long-term economicand social well-being of present and future generationsof each country as well as of the global community. Ar-ticle 2 of the Agreement provides that the parties shall

14 Agreement of 16 January 1974 between the Federal Republic ofGermany and Norway relating to the transmission of petroleum bypipeline from the Ekofisk Field and neighbouring areas to the FederalRepublic of Germany.

13 Agreement of 26 March 1975 between Canada and the UnitedStates of America relating to the exchange of information on weathermodification activities.

16 Agreement of 14 August 1983 between the United States ofAmerica and Mexico on co-operation for the protection and improve-ment of the environment in the border area.

adopt appropriate measures to prevent, reduce andeliminate sources of pollution in their own territorieswhich affect the border areas of the other.

31. Some bilateral agreements deal with the use ofland close to frontier areas, as for instance the 1973Agreement between the Federal Republic of Germanyand Austria concerning regional planning.

(c) Judicial decisions and State practiceother than agreements

32. State practice in the regulation of pollution causedby industrial activities is evidenced, for example, by theTrail Smelter case, by the correspondence between theUnited States of America and Mexico concerning theirdispute relating to the Peyton Packing Company andthe Casuco Company, and the decision rendered in theGeorgia v. Tennessee Copper Company case (1907).

33. The Nuclear Tests case, brought before the Inter-national Court of Justice, the claims made against theUnited States of America following the Eniwetok Atolltests and against the United Kingdom following theChristmas Island tests, as well as the Canadian claimagainst the USSR for damage caused by the Sovietsatellite Cosmos 954, deal with nuclear activities.

34. Some of the judicial decisions dealing with utiliz-ation of international rivers are the Lake Lanoux case,the Societe d'energie 6lectrique du littoral mediter-ranien v. Compania Imprese Elettriche Ligure (theRoya case) (1939), and the Missouri v. Illinois (1906)and Kansas v. Colorado (1907) cases.

35. The Fisheries case (United Kingdom v. Norway)and the Fisheries Jurisdiction cases (United Kingdom v.Iceland; Federal Republic of Germany v. Iceland) dealwith fishery activities, whereas the North Sea Continen-tal Shelf cases, the 1959 arbitration between PetroleumDevelopment (Trucial Coast) Ltd. and the Sheikh ofAbu Dhabi, and the Continental Shelf case {Tunisiav. Libyan Arab Jamahiriya) relate to use of the oceansubsoil by the coastal States.

36. Other activities forming the subject matter of Statepractice that may be cited are the development of powerplants (the Roya case), counterfeiting {United States v.Arjona), and highway construction (diplomatic cor-respondence between the United States of America andMexico concerning the Smugglers and Goat Canyons).

B. Location of origin of activities

37. Activities conducted by the acting State or its na-tionals with injurious consequences for other States andtheir nationals may occur within or beyond the ter-ritorial jurisdiction or control of the acting State. Theymay occur in the shared domain, but cause injury toanother State or its nationals either in the shared do-main or within the territorial jurisdiction or under thecontrol of the injured State. Activities may also occurwithin the territorial jurisdiction or under the control ofthe injured State itself. Although the location of ac-tivities with injurious impact is relevant, it is not the keyfactor in regulating them. The location of activities ap-pears to bring into play other relevant and competing in-


terests and relevant principles of international law; forexample, if an activity occurs on the high seas, the in-terests and rights of the acting State concern the utiliz-ation of resources, including the waters of the high seas,and the relevant principle of international law is that offreedom of the high seas. The location of origin of ac-tivities may also determine the question of jurisdictionover any possible dispute regarding the consequences ofthe activities. State practice demonstrates that the keyissue in regulating, substantively or procedurally, an ac-tivity with injurious consequences is the extent and kindof injury it causes and its impact on the functioning ofrelations between States, regardless of the location oforigin of the activity.

38. The present section is primarily descriptive. Itrecapitulates the relevant parts of treaties and judicialdecisions bearing on activities occurring within orbeyond the territorial jurisdiction or control of theacting State, but causing injuries to other States or theirnationals.

1. ACTIVITIES CONDUCTED WITHIN THE TERRITORIAL

JURISDICTION OR UNDER THE CONTROL

OF THE ACTING STATE

39. Most of the activities occurring within the ter-ritorial jurisdiction or under the control of one Stateand causing injuries to neighbouring States relate to theuse of resources shared by two or more neighbouringStates or to activities close to the frontier.


40. The 1960 Convention concerning the Protection ofLake Constance against Pollution deals with sharedresources. Under article 1, paragraph 2, of the Con-vention, the riparian States are to take the necessarymeasures in their respective territories to prevent any in-crease in the pollution of Lake Constance and, so far aspossible, to improve the quality of its waters. To thatend, the riparian States are to apply strictly, in respectof Lake Constance and its affluents, all the provisionson water protection that are in force in their territories.

41. The 1974 Convention on the Protection of the En-vironment between Denmark, Finland, Norway andSweden is a treaty between neighbouring States, butrelates to a wider group of activities. Article 1 of theConvention defines "environmentally harmful" ac-tivities as being the discharge from the soil or frombuildings or installations of solid or liquid waste, gas orany other substance into watercourses, lakes or the seaand the use of land, the sea-bed, buildings or instal-lations in any other way which entails, or may entail,environmental nuisance by water pollution or any othereffect on water conditions, sand drift, air pollution,noise, vibration, changes in temperature, radiation,light, etc. The Protocol to the Convention states thatdischarge from the soil or from buildings or instal-lations of solid or liquid waste, gases or other sub-stances into watercourses, lakes or the sea shall beregarded as environmentally harmful activities only ifthe discharge entails or may entail a nuisance to the sur-roundings. Therefore the mere discharge of "polluting"substances is not sufficient to bring it under the regimeof the Convention.

42. Acts covered by the 1960 Convention on ThirdParty Liability in the Field of Nuclear Energy and the1963 Vienna Convention on Civil Liability for NuclearDamage may also be included in the category of ac-tivities occurring, most probably, within the territorialjurisdiction or under the control of a State but causingextraterritorial harmful effects. The parties to theseconventions, however, are not neighbouring States of aparticular region; the conventions are open to all States.

43. The language used in the 1982 United NationsConvention on the Law of the Sea is more ambiguouson the location of origin of activities. Article 195 of theConvention provides that, "in taking measures to pre-vent, reduce and control pollution of the marine en-vironment", States shall behave in certain ways. Thusthe location of origin of polluting activities may bewithin or beyond the territorial jurisdiction or controlof States.


44. The location of most of the activities regulated bybilateral agreements is within the territorial jurisdictionor under the control of the States parties to theseagreements. A number of bilateral agreements relate tothe use of a resource shared by two States, such asrivers. In this group of agreements, activities may occurin the section of the shared resource which is within theterritorial jurisdiction of either State or within the sec-tion of the resource shared by both States. Mostbilateral agreements, however, deal with activities oc-curring within the territorial jurisdiction or under thecontrol of one State. For example, in the 1949 Agree-ment between Norway and the Soviet Union,17 the par-ties agree not to exploit the mineral deposits near theirfrontiers in a way that may harm their respective ter-ritories. Thus they agree, in order to safeguard the fron-tier line, to have a belt 20 metres wide on either sidewithin which no such activity may take place, unless inexceptional cases and by agreement between the parties.Article 18 of the Agreement provides:

Article 18

1. Mineral deposits near the frontier line may not be so prospectedor worked as to harm the territory of the other Party.

2. In order to safeguard the frontier line, there shall be a belt20 metres wide on either side thereof in which the work referred to inparagraph 1 of this article shall ordinarily be prohibited and shall bepermitted only in exceptional cases by agreement between the com-petent authorities of the Contracting Parties.

3. If in any particular case it is not expedient to observe the beltsreferred to in paragraph 2 of this article, the competent authorities ofthe Contracting Parties shall agree on other measures necessary tosafeguard the frontier line.

45. Some bilateral agreements deal with activities oc-curring within the territorial jurisdiction of the "in-jured" State. For example, under the 1967 Agreementbetween the Federal Republic of Germany andAustria,18 the Federal Republic of Germany agrees to

17 Agreement of 29 December 1949 between Norway and the USSRconcerning the regime of the Norwegian-Soviet frontier and procedurefor settlement of frontier disputes and incidents.

18 Agreement of 19 December 1967 between the Federal Republic ofGermany and Austria concerning the effects on the territory of theFederal Republic of Germany of construction and operation of theSalzburg Airport.

10 Documents of the thirty-seventh session—Addendum

establish a safety zone in its own territory for an airportto be established in Salzburg (Austria). Hence, activitiesthat may cause injuries in the territory of the FederalRepublic of Germany may be caused in that territorybut not necessarily by nationals of that State. The injurymay be the result of the operations of the Austrian air-port.

46. The passage of nuclear ships to or from foreignports is the subject of bilateral agreements for theprevention of nuclear or other kinds of damage. Thesetreaties approach the question of territorial jurisdictionor control functionally. Accordingly, they are relevantto nuclear damage occurring within the territory of thehost State if the nuclear incident has occurred withinthat territory. For example, under article 20 of the 1970Treaty between Liberia and the Federal Republic ofGermany,19 liability under the Treaty shall apply tonuclear damage occurring within Liberian territory orLiberian waters if the nuclear incident has occurredwithin Liberian territory or Liberian waters. And ar-ticle VIII of the 1964 Agreement between the UnitedStates of America and Italy on the use of Italian portsby the N.S. Savannah20 stipulates that the United Statesis liable for "any damage to people or goods derivingfrom a nuclear incident in which the N.S. Savannahmay be involved within Italian territorial waters". Theagreements concluded by the United States of Americawith Ireland21 and with the Netherlands22 containsimilar provisions.


47. Judicial decisions and official correspondencerelating to this group of activities stem from conflictsprimarily between neighbouring States in relation to theuse of resources shared by them, such as rivers andairspace. The sources point to a broad range of activitiestaking place in the territory of the acting State or underits control which may cause injury to other States and

" Treaty of 27 May 1970 between Liberia and the Federal Republicof Germany on the use of Liberian waters and ports by N.S. [nuclearship] Otto Hahn.

20 Agreement of 23 November 1964 between the United States ofAmerica and Italy on the use of Italian ports by the N.S. [nuclear ship]Savannah. See also the exchange of notes of 16 December 1965 con-stituting an agreement between the United States of America and Italyconcerning liability during private operation of the N.S. Savannah.

21 Exchange of notes of 18 June 1964 constituting an agreement be-tween the United States of America and Ireland relating to public liab-ility for damage caused by the N.S. Savannah. The agreement pro-vides (note I):

"(1) The United States Government shall provide compensationfor all loss, damage, death or injury in Ireland (including Irish ter-ritorial seas) arising out of or resulting from the operating of N.S.Savannah to the extent that the United States Government, theUnited States Maritime Administration or a person indemnifiedunder the Indemnification Agreement is liable for public liability inrespect of such loss, damage, death or injury."22 Agreement of 6 February 1963 between the Netherlands and the

United States of America on public liability for damage caused by theN.S. Savannah, which provides:

"Article 7"This Agreement relates only to a nuclear incident occurring

during a voyage of the N.S. Savannah to or from the Netherlands orits presence in Netherlands waters."

See also the Operational Agreement of 20 May 1963 on arrangementsfor a visit of the N.S. Savannah to the Netherlands.

their nationals. For example, the tribunal in the LakeLanoux case stated that pollution of waters, changedchemical composition or temperature of waters, anddiminution of the volume of water flow resulting fromthe use by one State of international waters within itsborders could violate the rights of the affected State andgive rise to a "duty of care" in carrying out the activity.In even broader language, the tribunal in the TrailSmelter case stated that. . . no State has the right to use or permit the use of its territory insuch a manner as to cause injury by fumes in or to the territory ofanother or the properties or persons therein.23

Even more generally, the International Court of Justice,in its judgment of 19 April 1949 in the Corfu Channelcase, stated that it was "every State's obligation not toallow knowingly its territory to be used for acts contraryto the rights of other States".24

48. An activity originating within the territory of theacting State but not relating to the use of resourcesshared by two neighbouring States is the launching ofsatellites. For example, in a note addressed to the SovietUnion in January 1979, Canada argued the liability ofthat country following the crash of a Soviet nuclear-powered satellite, Cosmos 954, on Canadian soil.

49. In the Alabama case (1872), the United States ofAmerica sought compensation for injuries resultingfrom the building and outfitting, in British ports, ofConfederate ships which were permitted to leave thoseports in breach of Britain's duty of neutrality.

2. ACTIVITIES CONDUCTED OUTSIDE THETERRITORIAL JURISDICTION OR CONTROL

OF THE ACTING STATE


50. A number of multilateral agreements regulate ac-tivities occurring beyond the territorial jurisdiction orcontrol of acting States, but causing injuries to otherStates and their nationals either in the shared domain orwithin the territorial jurisdiction of the injured State.Several of the treaties cited in this section deal withnuclear materials. Article XIII of the 1962 Conventionon the Liability of Operators of Nuclear Ships statesthat the Convention applies to nuclear damage causedby a nuclear incident occurring in any part of the worldand involving the nuclear fuel of or radioactive productsor waste produced in a nuclear ship flying the flag of acontracting State. Thus, according to this broad defini-tion, a damage-causing nuclear incident may occurwithin or beyond the territorial jurisdiction or controlof States. Article XI, paragraph 2, of the 1963 ViennaConvention on Civil Liability for Nuclear Damage, inan attempt to specify the authority competent to decideon the issue of liability, refers to the location of originof the activity. It states that, where the nuclear incidentoccurs outside the territory of any contracting party, orwhere the place of the nuclear incident cannot be deter-mined with certainty, jurisdiction over such actions

23 United Nations, Reports of International Arbitral Awards,vol. Ill, p. 1965.

241.C.J. Reports 1949, p. 22.

International liability for injurious consequences arising out of acts not prohibited by international law 11

shall lie with the courts of the State in which the liableoperator is established.

51. The 1972 Convention on the Prevention of MarinePollution by Dumping of Wastes and other matterregulates certain aspects of activities relating to the useof the sea on the assumption that such uses, if notregulated, will cause injury to a number of coastalStates. Sometimes particular activities, including the useof resources beyond the territorial jurisdiction or con-trol of States, have a noticeable economic impact onother States and their nationals. These activities havealso been regulated by multilateral conventions. For ex-ample, the exploitation of certain resources of the seamay fall into this category. Some of the conventionsdealing with the exploitation of sea resources bear onthe conservation of certain fishery resources which havestrong economic implications. Thus they differ fromconventions relating to general conservation; they dealwith resources that affect the interests of coastal Statesin a much more quantitative, tangible, immediate andeconomic form. In the preamble to the 1966 Interna-tional Convention for the Conservation of AtlanticTunas, the parties explicitly recognize their "mutual in-terest" in the populations of tuna and tuna-like fishfound in the Atlantic Ocean, and in maintaining thosepopulations at levels that will permit the maximum sus-tainable catch for nutritional and other purposes.Similarly, in the preamble to the 1949 InternationalConvention for the Northwest Atlantic Fisheries, theparties explicitly recognize their shared interest in theconservation of the fishery resources of the north-westAtlantic Ocean.

52. The 1969 International Convention relating to In-tervention on the High Seas in Cases of Oil PollutionCasualties provides in article I that parties to the Con-vention may take such measures on the high seas as maybe necessary to prevent, mitigate or eliminate grave andimminent danger to their coastlines or related interestsfrom pollution or threat of pollution of the sea by oil,following upon a maritime casualty. Such incidents onthe high seas nearly always cause injuries to at least theflag State. Article VI of the Convention provides that, ifthe measures taken by the coastal State go beyond whatis necessary to prevent the injury, that State shall beobliged to pay compensation to the extent of thedamage caused by measures exceeding those that arereasonably necessary. In considering whether themeasures are proportionate to the damage, article Vprovides that account shall be taken of: (a) the extentand probability of imminent damage if those measuresare not taken; (b) the likelihood of those measures being

effective; (c) the extent of the damage that may becaused by such measures. Hence any party which takesmeasures in contravention of these requirements andcauses damage to others shall be obliged to pay com-pensation. Article 1 of the 1963 Treaty Banning NuclearWeapon Tests in the Atmosphere, in Outer Space andUnder Water prohibits nuclear explosions at anyplace ifsuch explosion causes radioactive debris to be presentoutside the territorial limits of the State under whosejurisdiction or control such explosion is conducted. Inthat connection, the 1971 Treaty on the Prohibition ofthe Emplacement of Nuclear Weapons and OtherWeapons of Mass Destruction on the Sea-bed and theOcean Floor and in the Subsoil thereof should also bementioned. The 1976 Convention on the Prohibition ofMilitary or any other Hostile Use of EnvironmentalModification Techniques deals with techniques of thistype which might occur either within or beyond the ter-ritorial jurisdiction or control of the acting State.


53. In agreements regarding the use of foreign portsby nuclear ships, the State whose nuclear ship is visitingthe foreign ports has accepted liability for injuries itsships may cause outside the territory of the host Stateduring a passage to or from its port if the damage iscaused to the host State or to ships of the host Stateregistry.25


54. Although almost all the judicial decisions and of-ficial correspondence dealing with questions of extra-territorial injuries surveyed in this study relate to ac-tivities occurring within the territorial jurisdiction orunder the control of a State, at least one decision bearson activities occurring in the shared domain. In theFisheries Jurisdiction cases,26 the United Kingdom andthe Federal Republic of Germany objected to theunilateral expansion of the fishery zone by Iceland,which, they claimed, had been extended to the high seas.

23 See e.g. the Treaty of 27 May 1970 between Liberia and theFederal Republic of Germany, which provides, in article 20, that theFederal Republic of Germany shall be liable for injuries its nuclearship may cause "outside Liberian territory or Liberian waters during apassage to or from a Liberian port or to or from Liberian waters". Seealso footnotes 20 and 22 above and the similar agreements concludedby the United States of America with Italy and the Netherlands con-cerning the N.S. Savannah.

26 I.C.J. Reports 1974, pp. 3 and 175.

CHAPTER II

Assessment of activities for their injurious impact

55. The "assessment of activities for their injuriousimpact" referred to in this study involves a continuousprocess that begins prior to, but may continue duringthe performance of activities with potentially injuriousimpact in order to prevent or minimize injuries to other

States and their nationals. Such assessment comprisesdifferent stages in which a variety of interests areevaluated and accommodated, and choices and changesmade. Although the expression "assessment of ac-tivities" is used in this study, the content and conduct ofthe process are to be found under other headings in

12 Documents of (he thirty-seventh session—Addendum

many treaties, judicial decisions and official cor-respondence between States, although not alwayssystematically and step by step. The unsystematicreferences to the procedures and stages of the assess-ment of activities in treaties or judicial decisions areprimarily determined by the main purposes of the treatyor by the questions posed for judicial decision.Sometimes one or more aspects of assessment pro-cedures may be irrelevant to a particular activity. Forexample, in the case of the prohibition of emplacementof nuclear weapons on the high seas, or of the hostileuse of environmental modification techniques, assess-ment procedures such as collection of data, exchange ofinformation and consultation, etc. are totally irrelevant.The only stage of assessment that may be relevant and isstipulated in the two treaties dealing with these two ac-tivities is that of monitoring. Sometimes the proceduralrequirements for assessing activities for their injuriousimpact prior to or during their undertaking have beeneliminated in agreements. States have made a policydecision that the performance of these activities is essen-tial regardless of their harmful impact, as is apparentfrom most treaties dealing with shipping. The basicthrust of these treaties is to determine liability and toprovide compensation for injuries these activities maycause.


56. The requirement that States assess the injuriousimpact of their activities is reflected in article 192 of the1982 United Nations Convention on the Law of the Sea,which provides: "States have the obligation to protectand preserve the marine environment." The language ofarticle 194, paragraph 2, is more explicit. It requiresStates to take "all measures" necessary to preventdamage resulting from activities under their jurisdictionor control to other States and their environment:

Article 194. Measures to prevent, reduce and controlpollution of the marine environment

2. States shall take all measures necessary to ensure that activitiesunder their jurisdiction or control are so conducted as not to causedamage by pollution to other States and their environment, and thatpollution arising from incidents or activities under their jurisdiction orcontrol does not spread beyond the areas where they exercisesovereign rights in accordance with this Convention.

57. With regard to activities concerning resourcedeposits in the Area which extend beyond the limits ofnational jurisdiction, article 142 of the Convention re-quires that the acting State, when exploiting thedeposits, take due account of the rights and interests ofthe coastal State. Paragraph 1 of this article reads:

Article 142. Rights and legitimate interests of coastal States

1. Activities in the Area, with respect to resource deposits in theArea which lie across limits of national jurisdiction, shall be con-ducted with due regard to the rights and legitimate interests of anycoastal State* across whose jurisdiction such deposits lie.

Moreover, part XII of the Convention elaborates on therequirement of assessing the injurious impact of ac-tivities. Sections 1 to 4 of part XII in particular dealprimarily with the detailed steps of impact assessment asset forth in this study.

58. Two multilateral treaties regarding communica-tions systems require their signatories to use their com-munications installations in ways that will not interferewith the facilities of other States parties. Article 10,paragraph 2, of the 1927 International RadiotelegraphConvention requires the parties to the Convention tooperate stations in such a manner as not to interferewith the radioelectric communications of other contrac-ting States or of persons authorized by those Govern-ments:

Article 10. Conditions to be observed by stations. Interference

2. All stations, whatever their object may be, must, so far as poss-ible, be established and operated in such manner as not to interferewith the radioelectric communications or services of other contractingGovernments and of individual persons or private enterprisesauthorized by those contracting Governments to conduct a publicradiocommunication service.

59. The 1932 International Telecommunication Con-vention contains a similar requirement:

Article 35. Interference

1. All stations, whatever their object may be, must, so far as poss-ible, be established and operated in such manner as not to interferewith the radioelectric communications or services of other Contrac-ting Governments, or of private enterprises recognized by those Con-tracting Governments or other duly authorized enterprises which con-duct a radiocommunication service.

2. Each of the Contracting Governments not itself operatingsystems of radiocommunication undertakes to require private enter-prises which it recognizes and other enterprises duly authorized forthat purpose to observe the provisions of paragraph 1 above.

Again, the 1936 International Convention concerningthe Use of Broadcasting in the Cause of Peace prohibitsthe broadcasting to another State of material designedto incite the population to act in a manner incompatiblewith the internal order and security of that State. It pro-vides:

Article 1

The High Contracting Parties mutually undertake to prohibit and,if occasion arises, to stop without delay the broadcasting within theirrespective territories of any transmission which to the detriment ofgood international understanding is of such a character as to incite thepopulation of any territory to acts incompatible with the internalorder or the security of a territory of a High Contracting Party.

60. Article 12 of the 1983 Convention for the Protec-tion and Development of the Marine Environment ofthe Wider Caribbean Region requires the contractingparties to develop technical and other guidelines toassist them in assessing the environmental impact oftheir development projects upon the area covered by theConvention. The assessment should bear in particularon the effects of those projects upon coastal areas.Under this article, each contracting State shall, when re-quested, submit information concerning its develop-ment programme and the potential consequencesthereof. Where appropriate, a State may engage in con-sultations with other contracting States which may beaffected by the impact of its activities. This articlereads:

Article 12. Environmental impact assessment

1. As part of their environmental management policies the Con-tracting Parties undertake to develop technical and other guidelines toassist the planning of their major development projects in such a wayas to prevent or minimize harmful impacts on the Convention area.


2. Each Contracting Party shall assess within its capabilities, orensure the assessment of, the potential effects of such projects on themarine environment, particularly in coastal areas, so that appropriatemeasures may be taken to prevent any substantial pollution of, orsignificant and harmful changes to, the Convention area.

3. With respect to the assessments referred to in paragraph 2, eachContracting Party shall, with the assistance of the Organization whenrequested, develop procedures for the dissemination of informationand may, where appropriate, invite other Contracting Parties whichmay be affected to consult with it and to submit comments.


61. Since bilateral agreements are primarily directed tothe specific use of a particular resource, their pro-visions, including those relating to impact assessment,also appear to be more specific. For example, they maysimply prohibit certain specific activities. Nevertheless,these provisions are designed to protect the interests ofboth parties in security, economic or social matters.Thus article 3 of the 1922 Convention between Finlandand the RSFSR27 prohibits the diversion of certainwatercourses, the erection of constructions or the adop-tion of measures that might affect the flow of water byaltering the existing depth or condition of the parts ofthe watercourse situated in the territory of the othercontracting State, thereby damaging the fairway or en-croaching upon channels used for navigation or timber-floating, except by special agreement between the con-tracting States. This article does not prohibit certain ac-tivities, but specific results irrespective of the activitiesthemselves.

62. Occasionally, the provisions relating to impactassessment may be more general, not relating to anyspecific activity or outcome. Thus, under article 28,paragraph 1, of the 1963 Treaty between Hungary andRomania,28 the contracting parties are required toundertake forestry activities in the vicinity of their fron-tiers in such a way as not to impair the forest economyof the other party:

Article 28

1. Each Contracting Party shall so conduct its forestry operationsin the vicinity of the frontier as not to impair the forest economy ofthe other Party.

Again, article 1 of the 1973 Agreement between theFederal Republic of Germany and Austria29 establishesa German-Austrian Land Use Commission to facilitateco-operation in matters of land use, particularly in areasadjacent to their common frontier:

Article 1

With a view to furthering and facilitating co-operation in matters ofland use, particularly as regards areas adjacent to the common fron-tier, there shall be established a German-Austrian Land Use Commis-sion (hereinafter referred to as "the Commission").

27 Convention of 28 October 1922 between Finland and the RussianSocialist Federal Soviet Republic concerning the maintenance of riverchannels and the regulation of fishing on watercourses forming partof the frontier between Finland and Russia.

28 Treaty of 13 June 1963 between Hungary and Romania concern-ing the regime of the Hungarian-Romanian State frontier and co-operation in frontier matters.

29 Agreement of 11 December 1973 between the Federal Republic ofGermany and Austria concerning co-operation with respect to landuse.

Such co-operation would obviously entail consultationbetween the parties or through the Commission regard-ing land use in the frontier areas.

63. Sometimes the entire bilateral agreement mayfocus on the assessment of the impact of any activitythat has transboundary effects. The 1983 Agreement be-tween Mexico and the United States of America30 maybe cited as an example. In addition to the provisions ofthe preamble referred to above (para. 30), article 1 ofthe Agreement provides that co-operation among theparties shall be based on equality, reciprocity andmutual benefit:

Article 1

The United States of America and the United Mexican States,hereinafter referred to as the Parties, agree to co-operate in the fieldof environmental protection in the border area on the basis of equal-ity, reciprocity and mutual benefit. The objectives of the presentAgreement are to establish the basis for co-operation between the Par-ties for the protection, improvement and conservation of the environ-ment and the problems which affect it, as well as to agree on necessarymeasures to prevent and control pollution in the border area, and toprovide the framework for development of a system of notificationfor emergency situations. Such objectives shall be pursued withoutprejudice to the co-operation which the Parties may agree to under-take outside the border area.

64. Bilateral agreements have also been concluded forthe safeguard of frontier lines and the protection of thesecurity interests of the parties. For example, article 18of the 1949 Agreement between Norway and the SovietUnion requires the parties to maintain a belt 20 metreswide on either side of their frontier within which no ac-tivity for exploitation of mineral deposits may takeplace unless by agreement between the two States (seepara. 44 above).


65. The general requirement that States must assessthe injurious impact of activities undertaken by them orby persons under their control was stated in the TrailSmelter case. The tribunal observed that "no State hasthe right to use or permit the use of its territory in such amanner as to cause injury by fumes in or to the territoryof another or the properties or persons therein" (seepara. 47 above). The tribunal established a ratherprecise and comprehensive regime, which includedassessment of the injurious impact of smelting activitiesoccurring within the acting State but causing extra-territorial injuries.

66. A more exacting requirement of State assessmentof activities conducted under a State's territorial controlwas laid down in the judgment of 9 April 1949 of theInternational Court of Justice in the Corfu Channelcase (merits). In that case, the United Kingdom soughtindemnity for damage to one of its ships which hadstruck a mine in the Corfu Channel. The author of themine-laying remained unknown. None the less, theCourt found that Albania was responsible for thedamage occurring within its territorial waters:

From all the facts and observations mentioned above, the Courtdraws the conclusion that the laying of the minefield which caused theexplosions on October 22nd, 1946, could not have been accomplishedwithout the knowledge of the Albanian Government.

30 See footnote 16 above.

14 Documents of the thirty-seventh session—Addendum

The obligations resulting for Albania from this knowledge are notdisputed between the Parties.* Counsel for the Albanian Governmentexpressly recognized that "if Albania had been informed of the opera-tion before the incidents of October 22nd, and in time to warn theBritish vessels and shipping in general of the existence of mines in theCorfu Channel, her responsibility would be involved . . ." .

The obligations incumbent upon the Albanian authorities consistedin notifying, for the benefit of shipping in general, the existence of aminefield in Albanian territorial waters and in warning the ap-proaching British warships of the imminent danger to which theminefield exposed them. Such obligations are based, not on the HagueConvention of 1907, No. VIII, which is applicable in time of war, buton certain general and well-recognized principles, namely: elementaryconsiderations of humanity, even more exacting in peace than in war:the principle of the freedom of maritime communication; and everyState's obligation not to allow knowingly its territory to be used foracts contrary to the rights of other States.*11

67. From the language of the judgment it appears thatthe standard of "due care" which a State must maintainas regards activities by other international actors on itsterritory is at least that of non-negligence in the assess-ment of injurious impact:

It is clear that knowledge of the minelaying cannot be imputed tothe Albanian Government by reason merely of the fact that aminefield discovered in Albanian territorial waters caused the ex-plosions of which the British warships were the victims. It is true, asinternational practice shows, that a State on whose territory or inwhose waters an act contrary to international law has occurred, maybe called upon to give an explanation. It is also true that a State can-not evade such a request by limiting itself to a reply that it is ignorantof the circumstances of the act and of its authors. * The State may, upto a certain point, be bound to supply particulars of the use made by itof the means of information and inquiry at its disposal. . . . "

68. The Court recognized that, from the mere fact ofthe control exercised by a State over its territory andwaters, it could not be concluded that that State hadknown or ought to have known of any wrongdoingperpetrated therein. That fact, the Court concluded, byitself and apart from other circumstances, did not primafacie involve responsibility, nor did it shift the burdenof proof. On the other hand, the Court recognized thatthe exclusive control by a State over its territory had abearing upon the methods of proof available toestablish the knowledge by the State of such events. Byreason of this exclusive control, the injured State wasoften unable to furnish direct proof of facts giving riseto responsibility. The injured State should therefore beallowed "a more liberal recourse to inferences of factand circumstantial evidence".33 According to the Court,this form of evidence was admitted in all systems of lawand was recognized by international law. It should fur-ther be regarded "as of special weight when it is basedon a series of facts linked together and leading logicallyto a single conclusion".34 Recourse to a very liberal in-terpretation and acceptance of evidence regarding theknowledge by the State of injurious acts carried out byother entities appears to have been recognized.

A. Data collection

69. Collecting data on the possible effect of activitieswith potentially injurious consequences is the first step

31 I.C.J. Reports 1949, p. 22.32 Ibid., p. 18.33 Ibid.34 Ibid.

in the impact assessment process. It requires seriousconsideration, in good faith, of the interests of others.This early stage of assessment includes gathering scien-tific information about the kind and extent of injurieswhich an activity may cause to other States or theirnationals. Collection of data may be undertaken by theacting State alone, by a joint commission or by a groupof States. Thus collection of data may be required withrespect to the impact of activities on shared domains,and to the level of possible injuries to other States andtheir nationals.


70. Some multilateral agreements provide that thedata may be collected by States individually. Article XIof the 1978 Kuwait Regional Convention for Co-operation on the Protection of the Marine Environmentfrom Pollution explicitly requires States to assess thepotential injuries to the marine environment that any oftheir activities undertaken within their territory maycause:

Article XL Environmental assessment

(a) Each Contracting State shall endeavour to include anassessment* of the potential environmental effects in any* planningactivity* entailing projects within its territory, particularly in thecoastal areas, which may cause significant risks of pollution in the SeaArea;

(b) The Contracting States may, in consultation with thesecretariat, develop procedures for dissemination of information ofthe assessment of the activities referred to in paragraph (a) above;

(c) The Contracting States undertake to develop, individually orjointly, technical and other guidelines in accordance with standardscientific practice to assist the planning of their development projectsin such a way as to minimize their harmful impact on the marine en-vironment. In this regard international standards may be used whereappropriate.

This article does not seem to be concerned about in-juries to a specific State, but rather about injuries to adesignated area in the Gulf waters (sea area) shared bythe contracting States.

71. The 1979 Convention on Long-range Transbound-ary Air Pollution provides for research and exchange ofinformation and an examination of the impact of ac-tivities undertaken by the parties to the Convention.This Convention is primarily concerned with the preven-tion and minimizing of injury; it is not concerned withthe question of liability. Articles 3 and 4 of the Conven-tion provide:

Article 3

The Contracting Parties, within the framework of the present Con-vention, shall by means of exchanges of information, consultation,research and monitoring, develop without undue delay policies andstrategies which shall serve as a means of combating the discharge ofair pollutants, taking into account efforts already made at nationaland international levels.

Article 4

The Contracting Parties shall exchange information on and reviewtheir policies, scientific activities and technical measures aimed atcombating, as far as possible, the discharge of air pollutants whichmay have adverse effects, thereby contributing to the reduction of airpollution including long-range transboundary air pollution.

Article 7 of the Convention deals with co-operationamong member States in research and development ofmethods for reducing air pollution and its long-rangetransmission:


Article 7The Contracting Parties, as appropriate to their needs, shall initiate

and co-operate in the conduct of research into and/or developmentof:

(a) existing and proposed technologies for reducing emissions ofsulphur compounds and other major air pollutants, includingtechnical and economic feasibility, and environmental consequences;

(b) instrumentation and other techniques for monitoring andmeasuring emission rates and ambient concentrations of airpollutants;

(c) improved models for a better understanding of the transmissionof long-range transboundary air pollutants;

(d) the effects of sulphur compounds and other major airpollutants on human health and the environment, includingagriculture, forestry, materials, aquatic and other natural ecosystemsand visibility, with a view to establishing a scientific basis for dose/ef-fect relationships designed to protect the environment;

(e) the economic, social and environmental assessment of alterna-tive measures for attaining environmental objectives including thereduction of long-range transboundary air pollution;

(/) education and training programmes related to the environmen-tal aspects of pollution by sulphur compounds and other major airpollutants.

Under article 8 of the Convention, the parties are re-quired to exchange data and information on emissionsof pollutants at agreed intervals, on major changes innational policies and in industrial development, withtheir potential impact, and on meteorological andphysico-chemical factors:

Article 8

The Contracting Parties, within the framework of the ExecutiveBody referred to in article 10 and bilaterally, shall, in their commoninterests, exchange available information on:

(a) data on emissions at periods of time to be agreed upon, ofagreed air pollutants, starting with sulphur dioxide, coming from grid-units of agreed size; or on the fluxes of agreed air pollutants, startingwith sulphur dioxide, across national borders, at distances and atperiods of time to be agreed upon;

(6) major changes in national policies and in general industrialdevelopment, and their potential impact, which would be likely tocause significant changes in long-range transboundary air pollution;

(c) control technologies for reducing air pollution relevant to long-range transboundary air pollution;

(d) the projected cost of the emission control of sulphur com-pounds and other major air pollutants on a national scale;

(e) meteorological and physico-chemical data relating to the pro-cesses during transmission;

(/) physico-chemical and biological data relating to the effects oflong-range transboundary air pollution and the extent of the damage*which these data indicate can be attributed to long-range transbound-ary air pollution;

(g) national, subregional and regional policies and strategies for thecontrol of sulphur compounds and other major air pollutants.

* The present Convention does not contain a rule on State liability fordamage.

Subparagraphs (e), (/), (g) and (h) of article 9 of theConvention again deal with data collection and ex-change of information:

(e) the need to exchange data on emissions at periods of time to beagreed upon, of agreed air pollutants, starting with sulphur dioxide,coming from grid-units of agreed size; or on the fluxes of agreed airpollutants, starting with sulphur dioxide, across national borders, atdistances and at periods of time to be agreed upon. The method, in-cluding the model, used to determine the fluxes, as well as the method,including the model, used to determine the transmission of airpollutants based on the emissions per grid-unit, shall be madeavailable and periodically reviewed, in order to improve the methodsand the models;

(/) their willingness to continue the exchange and periodic updatingof national data on total emissions of agreed air pollutants, startingwith sulphur dioxide;

(g) the need to provide meteorological and physico-chemical datarelating to processes during transmission;

(h) the need to monitor chemical components in other media suchas water, soil and vegetation, as well as a similar monitoring pro-gramme to record effects on health and environment.

72. Some multilateral agreements have establishedcommissions designed, among other things, to carry outresearch and collect data. Thus article III of the 1966 In-ternational Convention for the Conservation of AtlanticTunas establishes a Commission whose duties includethe study of the effect of human and natural factors onthe abundance of tuna and tuna-like fish in the areascovered by the Convention. In undertaking such astudy, the Commission is not obliged to use only infor-mation supplied by member States; it may conduct itsindependent research studies and use the research con-ducted by and the services of private organizations orindividuals. Article IV of the Convention, defining thefunctions of the Commission, reads:

Article IV

1. In order to carry out the objectives of this Convention theCommission shall be responsible for the study of the populations oftuna and tuna-like fishes (the Scombriformes with the exception of thefamilies Trichiuridae and Gempylidae and the genus Scomber) andsuch other species of fishes exploited in tuna fishing in the Conventionarea as are not under investigation by another international fishery or-ganization. Such study shall include research on the abundance,biometry and ecology of the fishes; the oceanography of their environ-ment; and the effects of natural and human factors upon their abun-dance. The Commission, in carrying out these responsibilities shall,insofar as feasible, utilize the technical and scientific services of, andinformation from, official agencies of the Contracting Parties andtheir political subdivisions and may, when desirable, utilize theavailable services and information of any public or private institution,organization or individual, and may undertake within the limits of itsbudget independent research to supplement the research work beingdone by governments, national institutions or other internationalorganizations.

2. The carrying out of the provisions in paragraph 1 of this articleshall include:

(a) colle