International Liability

The ILC agreed that responsibility for internationally illicit acts and the so-called responsibility
for riskarising out of the performance of certain lawful activities are of such sharply different
hypotheses, that confusion between them might have an adverse effect on the understanding of
the
main subject of State responsibility.1As a result, in 1974, the ILC was entrusted with an
additional item entitled ‘‘international liability for injurious consequences arising from acts not
prohibited by international
law” and later appointed Mr. Robert Q. Quentin-Baxter as Special Rapporteur for the topic.2
On the one hand, such industries and activities are of great value for
mankind, and, in spite of their potential negative impact on the safety
and health of the international community and the environment, there
is no alternative means available thus far to substitute for them. On
the other hand, however, the hazardous and harmful effects from such
activities not only to the author State itself, but, no less significantly, to
neighboring States are often catastrophic and devastating, and must be
addressed by international law. In maintaining the balance, the Special
Rapporteur advocated that the author State should be obliged to accept.
The ILC gradually changed its approach, shifting its focus from
‘‘pure liability rules” to preventive, regulatory principles and rules of
reparation.3The schematic outline of Quentin-Baxter’s Fourth Report
contained a ‘‘compound ‘primary’ obligation” comprising four duties:

1
On this matter, the ILC, in its report to the General Assembly on the workof its
twenty-first session, concluded: ‘‘The Commission also agreed in recognizing the
importance, alongside that of responsibility for internationally illicit acts, of the
so-called responsibility for riskarising out of the performance of certain lawful
activities, such as spatial and nuclear activities. However, questions in this latter
category will not be dealt with simultaneously with those in the former category,
mainly in order to avoid any confusion between two such sharply different hypotheses,
which might have an adverse effect on the understanding of the main subject. Any
examination of such questions will therefore be deferred until a later stage in the
Commission’s work.” See Report of the ILC on the Work of its Twenty-First Session,
June 2--August 8, 1969, Yearbook of the ILC (1969), vol. II, p. 203, at p. 233 (emphasis
added). In the ILC’s Report on its Thirtieth Session, the Commission again tookt he
view that the two questions cannot be treated jointly, stating: ‘‘A joint examination of
the two subjects could only make both of them more difficult to grasp. To be obliged
to bear any injurious consequences of an activity that is in itself lawful, and to be
obliged to face the consequences (not necessarily limited to compensation) of the
breach of a legal obligation, are not comparable situations. It is only because of the
relative poverty of legal language that the same term is sometimes used to designate
both.” See Yearbook of the ILC (1978), vol. II (Part Two), p. 75.
2
Report of the ILC on the Workof its Thirty-Second Session, GAOR, Thirty-Fifth Session,
Supp. No. 10 (A/35/10), Chapter VII. See also Yearbook of the ILC (1978), vol. II (Part Two),
pp. 6 and 149--152; General Assembly Resolution 32/151 of December 19, 1977, para. 7,
reproduced in Yearbook of the ILC (1980), vol. II (Part Two), p. 158.
3
See J. Barboza, Second Report, in Yearbook of the ILC (1986), vol. II (Part One), p. 145, at
pp. 146--147.
to prevent, inform, negotiate, and repair.4In other words, the source
State has the duty to take preventive measures; the duty to inform the
potentially affected State party of the possible damage; the duty to consult
with it on proper actions to be taken; and the duty to mitigate and
repair any damage. Should it fail to fulfill these duties, its international
responsibility would be invoked.5

4
R. Q. Quentin-Baxter, Fourth Report, in Yearbook of the ILC (1983), vol. II (Part One),
p. 201, at p. 213, para. 40, and pp. 223--225. See also D. Magraw, ‘‘Transboundary Harm:
The International Law Commission Study of ‘International Liability’,” American Journal
of International Law, vol. 80 (1986), p. 305, at p. 311.
5
Report of the ILC on its Forty-Second Session, Yearbook of the ILC (1990), vol. II (Part Two).