Yearbook of the International Law Commission 1985 Volume II Part One Addendum One

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A/CN.4/SER.A/1985/Add.l (Part 1/Add.l)
YEARBOOK
OF T HE
INTERNATIONAL
LAW COMMISSION
1985
Volume II
Part One
Documents of the thirty-seventh session
{Addendum)
UNITED NATIONS

A/CN.4/SERA/1985/Add.l (Part 1/Add.l)
YEARBOOK
OF THE
INTERNATIONAL
LAW COMMISSION
1985
Volume II
Part One
Documents of the thirty-seventh session
{Addendum)
UNITED NATIONS
New 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 United
Nations 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 comprises
two 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 in
mimeographed form, are reproduced in the present volume with the editorial
changes 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 92-1-133324-5
ISSN 0082-8289
O35OOP
CONTENTS
Page
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 for
injurious 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 ARISING
OUT 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 consequences
arising out of acts not prohibited by international law, prepared by the Secretariat
[Original: English]
[16 October 1984}
CONTENTS
PaKe
Abbreviations 3
Note concerning quotations. 3
PuruRruphs
INTRODUCTION. 1-19
Chapter
I. ACTIVITIES CAUSING INJURIES BEYOND THE TERRITORIAL JURISDICTION OR CONTROL OF THE
STATE WHERE THEY ARE CONDUCTED 20-54 6
A. Forms of activities 20-36 6
(a) Multilateral agreements 23-27 7
(b) Bilateral agreements 28-31 8
(c) Judicial decisions and State practice other than agreements 32-36 8
B. Location of origin of activities 37-54 8
1. Activities conducted within the territorial jurisdiction or under the control of the ac-
ting State 39-49 9
(a) Multilateral agreements 40-43 9
(b) Bilateral agreements 44-46 9
(c) Judicial decisions and State practice other than agreements 47-49 10
2. Activities conducted outside the territorial jurisdiction or control of the acting State ... 50-54 10
(a) Multilateral agreements 50-52 10
(b) Bilateral agreements 53 11
(c) Judicial decisions and State practice other than agreements 54 11
11. ASSESSMENT OF ACTIVITIES FOR THEIR INJURIOUS IMPACT 55-248 11
(a) Multilateral agreements 56-60 12
(b) Bilateral agreements 61-64 13
(c) Judicial decisions and State practice other than agreements 65-68 13
A. Data collection 69-96 14
(a) Multilateral agreements 70-75 14
(b) Bilateral agreements 76-83 16
(c) Judicial decisions and State practice other than agreements 84-96 19
B. Prior negotiation and consultation 97-195 22
(a) Multilateral agreements 99-103 22
(b) Bilateral agreements 104-107 23
(c) Judicial decisions and State practice other than agreements 108-113 24
1. Definition of harm 114-167 26
(a) Multilateral agreements , 116-135 27
(b) Bilateral agreements 136-150 32
(c) Judicial decisions and State practice other than agreements 151-167 35
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 82
(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 510-567 106
1. 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 568-606 115
1. Local courts and authorities 570-584 115
(a) Multilateral agreements 570-580 115
(b) Bilateral agreements 581-583 n7
(c) Judicial decisions and State practice other than agreements 5 84 * * 8
2. International courts, arbitral tribunals and joint commissions 585-589 U8
(a) Multilateral agreements 585-586 118
(b) Bilateral agreements 587-588 122
(c) Judicial decisions and State practice other than agreements 589 122
3. Applicable law 590-606 I22
(a) Multilateral agreements 590-594 122
(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
ANNEXES
Page
I. Multilateral treaties 128
II. Bilateral treaties 132
III. Judicial decisions and State practice other than agreements 138
ABBREVIATIONS
ECE Economic Commission for Europe
IAEA International Atomic Energy Agency
ICJ International Court of Justice
IMCO Inter-Governmental Maritime Consultative Organization (now IMO)
IMO International Maritime Organization
INTAL Inter-American Institute of International Legal Studies
OAS Organization of American States
OECD Organisation for Economic Co-operation and Development
PCIJ Permanent Court of International Justice
UNEP United Nations Environment Programme
I.C.J. Reports ICJ, Reports of Judgments, Advisory Opinions and Orders
P.C.I. J., Series A PCIJ, Collection of Advisory Opinions (Nos. 1-24, up to and including
1930)
P.C.I.J., Series A/B 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 original
text.
Unless otherwise indicated, quotations from works in languages other than English have been
translated by the Secretariat.
Documents of the thirty-seventh session—Addendum
Introduction
1. At its thirty-fifth session, in 1983, the International 4. Activities having an extraterritorial injurious im-
Law Commission requested that three parts of the study pact are also conducted by private entities. These en-
prepared by the Secretariat on multilateral and bilateral tities operate within the territorial jurisdiction or under
agreements and judicial decisions and State practice the control of the acting State, within the shared domain
other than agreements relating to the question of inter- or within the territorial jurisdiction or under the control
national liability for injurious consequences arising out of the injured State.4 For economic reasons, private en-
of acts not prohibited by international law be made tities transfer from one State to another hazardous and
widely available.1 The three parts of that study were heavily polluting industries such as those producing
prepared between 1982 and 1983 for the use of the late steel, aluminium, asbestos and certain toxic chemicals.5
Robert Q. Quentin-Baxter, the Special Rapporteur for The injuries may be considerable. Reports indicate that
that topic. At the request of the Commission, the these injuries are not limited to the recipient State, but
Secretariat has now updated them and combined them sometimes cross into neighbouring States, and indeed
in a single volume. occasionally even to the original exporting State.6
2. It is not the purpose of this study to define, alter or 5. Acts with extraterritorial injurious impact have
in any way affect the scope or the framework of the sub- always been met with in international relations and have
ject under consideration by the Commission. The been of concern to international law. States appear to
outline of the study and the individual papers were have recognized that, in the exercise of their exclusive
prepared when the Commission was still at the authority within or beyond their territories, over their
preliminary stage of examining the scope and the ships, for example, they are expected to have due regard
framework of the topic. On the basis of prior for the interests of other States that may adversely be af-
preliminary studies and taking into account the reports fected. The present study reviews a number of examples
of the Special Rapporteur as well as the Commission's
reports on the question, the Secretariat examined the 4 The "injured State" or "affected State" refers to the State that
subject, as well as State practice, in a factual context. has suffered or may suffer injuries as a result of an activity by the
The presentation of material and information in this acting State. The injuries may be to the State's property or the private
property of its nationals.
document does not imply the expression of any opinion
5 These polluting industries are sometimes transferred from
whatsoever on the part of the Secretariat of the United
developed to developing countries, where labour and production costs
Nations concerning its content nor on the positions that are lower and standards of environmental regulations are looser or
States may have adopted regarding specific cases or less strictly enforced. See B. Castleman, The Export of Hazardous
agreements referred to therein. Factories to Developing Nations (1978).
6 See North-South: a Programme for Survival, report of the In-
3. Briefly, the factual context of the subject is marked dependent Commission on International Development Issues under
by the increasingly intensive use in many different forms the chairmanship of Willy Brandt (London, Pan Books, 1980).
of the resources of the planet for economic, industrial The States members of OECD have attempted to provide for en-
vironmental protection in "Guidelines for multinational enterprises",
or scientific purposes. Because of their economic and
which the OECD Council was to review in 1984. See also OECD,
ecological interdependence, activities occurring within Economic and Ecological Interdependence (Paris, 1982), p. 66.
or beyond the territorial control or jurisdiction of States In 1983, the Inter-Governmental Working Group on Transnational
may have an injurious impact on other States or their Corporations prepared a comprehensive draft code of conduct for
transnational corporations. The draft includes a section on en-
nationals. To cite only one example, at this stage of the
vironmental protection that provides for measures to avoid and
technological revolution, the activities of productive
remedy environmental damage, to supply relevant information to
plants may cause harmful consequences which may developing countries about the potential hazards involved in certain
cross boundaries, causing atmospheric changes through industrial activities, etc. The principles of environmental protection of
"acid rain" or through river and coastal waters. Fur- the code of conduct provide as follows:
"Environmental protection
thermore, the scarcity of natural resources, the need for
"44. Transnational corporations, in carrying out their production
the more efficient use of resources and the creation of activities, shall comply with national policies, laws and regulations
substitute resources have led to innovative production of the countries in which they operate with regard to preservation of
methods, sometimes with unpredictable consequences.2 the environment. They shall take steps to improve the environment
and make efforts to develop and apply adequate technologies for
This factual aspect of global interdependence has been
this purpose.
demonstrated by events that have frequently resulted in
"45. Transnational corporations shall supply to the authorities of
injuries beyond the territorial jurisdiction or control of the countries in which they operate all relevant information concer-
the acting State.3 ning:
"(a) Features of their products or processes which may harm the
environment and the measures and costs required to avoid harmful
effects;
"(b) Prohibitions, restrictions, warnings and other regulatory
1 Yearbook . . . 1983, vol. II (Part Two), p. 83, para. 286.
measures imposed in other countries, on grounds of protection of
2 It is not the purpose of this study to describe the factual instances the environment, on products and processes which they have in-
of global interdependence. The above brief description is intended troduced or intend to introduce in the countries concerned.
merely to indicate the reasons for the choice of materials on State "46. Transnational corporations shall be responsive to requests
practice. from Governments of the countries in which they operate and be
3 The "acting State", in this study, refers to the State within whose prepared where appropriate to co-operate with international
territorial jurisdiction or under whose control an activity has taken organizations in their efforts to develop and promote national and
place that has caused or may cause injuries beyond its territorial international standards for the protection of the environment."
jurisdiction or control to other States or their nationals. (E/C.10/1983/S/4, pp. 11-12.)