Chapter III

Responsibility and Liability in International Law

1. Introduction

In the present chapter, we will examine the various forms that responsibility
and liability may assume in international law. Comparing the concepts of
“responsibility” and “liability” will show which of the two adapts itself better
to the regulation of hazardous activities. The comparison will also try to dis-
cern whether or not the International Law Commission’s decision to treat “lia-
bility” as a separate subject was a wise one.

2. Responsibility and Liability in International Law

In response to modern technological risks, various forms of sine delicto liabil-

ity have progressively evolved in most domestic legal systems. In international
law, a number of specific (hazardous) activities are regulated by multilateral
conventions where the liability for transboundary damages falls mainly on
private persons or entities,1 and in some cases there may be a residual State
liability. In one convention, there is exclusive State accountability.2
Within the International Law Commission (ILC), several members were of
the opinion that the situations contemplated by the liability topic were well
covered by the concepts of responsibility.3 However, authors like Rolando

1
These conventions are referred to as “civil liability” conventions.
2
The Convention on International Liability for Damage Caused by Space Objects (Geneva, 29
March, 1972) is the only convention where liability is exclusively on the State, with sine delicto
liability to pay compensation for damage caused by its space objects. Art. II reads: “A launch-
ing State shall be absolutely liable for compensation for damage caused by its space objects on
the surface of the Earth or to aircraft in flight.” And Article III reads: “In the event of damage
being caused elsewhere than on the surface of the Earth to a space object of a launching State
or to persons or property on board such a space object by a space object of another launching
State, the latter shall be liable only if the damage is due to the fault of persons for whom it is
responsible.” 961 UNTS 187; Sands et al (eds) Documents in International Environmental
Law, p. 1538. Manchester University Press, 1994.
3
See Chapters VI and VII for an account of the development of this issue in the ILC.

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 21–30.
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22 Chapter III

Quadri4 and Roberto Ago5 would use a different name: what is legally known
as “liability” would be a guarantee given by an operator as a condition for the
legality of the hazardous activity he conducts. In this chapter, the main fea-
tures of international responsibility for wrongful acts will be compared with
those of sine delicto liability, and consideration will be given to the practical
consequences of differentiating one from the other.
In order to be effective, risk regulation requires regimes with special fea-
tures. Sine delicto liability has proved to be efficient in solving problems posed
by the risk inherent to some modern activities. For instance, its special fea-
tures include the irrelevance of fault, the possibility of prompt compensation,
the flexibility in the appreciation of causality, and the allocation of the costs of
reparation.6

2.1. Responsibility and Liability: the Use of Both Terms7

The meanings of the words “responsibility” and “liability” used nowadays by
the ILC and most UN bodies—and as seen in most international legal litera-
ture—do not correspond with the words’ original meanings in Anglo-
American law. Besides, the Anglo-American issue of having two different
words express the notion of responsibility does not exist in other legal sys-
tems. French (“responsabilité”), Spanish (“responsabilidad”), and Italian
(“responsabilità”) have only one word to convey both “responsibility” and
“liability”.
The choice of the word “liability” in the English version of the topic stems
from an exchange of views in the ILC during its twenty-fifth session, in 1973.
It was suggested by Mr. Kearney, the American member, that: “[T]he term
‘responsibility’ should be used only in connection with internationally wrong-
ful acts and that, with reference to the possible injurious consequences arising
out of the performance of certain lawful activities, the more suitable term ‘lia-
bility’ should be used.”8

4
Quadri, Rolando, Diritto Internazionale Pubblico, (5a Ed., Napoli 1968), pp. 590/591. It must
be noted that in Italian, as in French and Spanish, there is only one root word to refer to both
responsibility and liability. In French, liability is known as “responsabilité pour risque,” in
Spanish “responsabilidad por riesgo,” and something equivalent in many internal law systems
in the world. It seems too late to change these names; but it is important to bear in mind that
the concepts are different and they should be kept separate from each other.
5
Yearbook of the International Law Commission, 1969, Vol. I, p. 105.
6
See Chapter II.
7
A complete discussion on this question may be found in the Preliminary Report of Professor
Quentin-Baxter, Yearbook of the International Law Commission, 1979, Vol. II, Part I,
pp. 250/252.
8
Yearbook of the International Law Commission, 1973, Vol. I, p. 211.

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 Responsibility and Liability in International Law 23

So, the term “responsibility” refers to the legal consequences following the
breach of an international obligation—i.e., it is “responsibility for wrongful
acts.” That is the classical meaning of the word and it corresponds to the rooted
belief that there can be no real responsibility unless there is a wrongful act. As
L.F.E. Goldie puts it: “The term ‘responsibility’ thus includes the attribution of
the consequences of conduct in terms of the duties of a man in society.”9
But “responsibility” has still another meaning: the word may be used to
refer to a set of obligations that include a duty of care or vigilance, incumbent
on a certain person. In the “Informal Composite Negotiating Text, Revision 2”
of the Third UN Conference on the Law of the Sea, “States are responsible” is
translated as: “…il incombe aux Etats de veiller…”. Also, the meaning of
“responsibility” seems to be similar in Principle 21 of the Stockholm
Declaration.10
The word is used with the same meaning in UN General Assembly
Resolution 2749 (XXV) of December 17, 1970, paragraph 14: “Every State
shall have the responsibility to ensure that activities in the area…shall be car-
ried out in conformity with the international régime to be established”
(emphasis added).11
We would like to recall a remark by Goldie that: “[A]t times, publicists and
judges may employ the two terms (responsibility and liability) almost inter-
changeably or synonymously.”12 He added that: “in certain general contexts,
legal responsibility and legal liability may be given, in ordinary language, the
same meaning, to say that a man is legally responsible for some act or harm is
to state that his connection with that act or harm is sufficient, according to
law, to render him liable to his victims for the consequences of his act or for
the harm he has caused.”13
In fact, the only link between what came to be known as “liability” in
ILC parlance and State “responsibility” is that they both deal with the conse-
quences of certain acts. The difference is that the acts in one of them (“respon-
sibility”) are wrongful and in the other (“liability”) are lawful. This places the

9
Legal Aspects of Transfrontier Pollution, Paris OECD, 1977, p. 344.
10
“States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies and the responsibility to ensure that activities within their jurisdic-
tion or control do not cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction.”
11
“Concepts of strict and absolute liability and the ranking of liability in terms of relative expo-
sure to risk” in the Netherlands Yearbook of International Law, 1985, p. 182.
12
Second Report (Barboza), Doc. A/CN.4/402, p. 3.
13
Op.cit., p. 182.

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24 Chapter III

consequences of those acts in different stages of legal norms: the former in the
secondary norm and the latter in the primary norm.14
Rivers of ink have flowed to point out the subtle differences between such
words within the Anglo–American legal system, as if those differences could
automatically be transferred to international law. We might as well have called
them “Accountability I” and “Accountability II” and describe the features of
each one. Be that as it may, the fact is that “responsibility” in United Nations
legal parlance has become shorthand for “State responsibility for wrongful
acts,” and “liability” for “international liability for acts not prohibited by inter-
national law.” In this book, the terms will be used as in the ILC, unless other-
wise stated.

2.2. More on the Meaning of Certain Terms

(a) Objective Liability
The word “fault” in English and “faute” in French have dual meanings:
one refers to the breach of an obligation—i.e., to the mere contrast between
the conduct required by that obligation and the conduct which the author
State has in effect followed—and the other refers to culpa lato sensu—that is,
to dolus or negligence. The latter meaning points to the “subjective” aspect
of the conduct.15 Liability for lawful acts is sometimes also called “objective
liability” because, if no duty has been violated, the subjective element of
culpa cannot possibly exist. However, the breach of many international obliga-
tions does not require culpa and the correspondent responsibility is also
objective, so trying to distinguish liability from responsibility by its “objec-
tive” character may lead to ambiguity.16 The difference between “objective

14
“In liability, the primary norm includes the legal consequences, because there is no breach of
obligation. The primary norm may be expressed like this: “Damages caused by a lawful act of
a legal hazardous activity must be compensated. The secondary norm would be: if compen-
sation is not paid by the liable party, then there is a breach of obligation with legal conse-
quences: these consequences are again compensation, satisfaction, etc, only that in this case,
compensation may include interests, lucrum cessans, etc And of course, the injured State
may also take countermeasures in order to force the reluctant State comply”.
15
See Zemanek, op.cit. p.34. “Malheureusement, le terme ‘faute’ n’est pas employé uniformément
dans les systèmes juridiques ou dans toutes les langages. Dans plusieurs systèmes, ‘faute’ signifie
manquement à un devoir et est donc synonyme de délit…Dans d’autres systèmes, ‘faute’ impli-
que une sorte de culpa, soit intention, (dolus, culpa gravis) ou négligence (culpa levis ou levis-
sima) dans la violation d’une obligation.” It goes without saying that if there is no “manquement
à un devoir”, there cannot be fault in the second meaning.
16
As an example, the breach of most obligations of conduct of Part I of the ILC draft on State
responsibility does not require the existence of fault (culpa).

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 Responsibility and Liability in International Law 25

responsibility” and “liability” is that, in the former, culpa is irrelevant but there
is fault in the sense of a breach of obligation, whereas, in the latter, there is no
breach of obligation (and therefore also no culpa). One is ex delicto and the
other sine delicto.
In fact, the double meaning of “fault” has lead to confusion between cases of
strict liability due to the irrelevance of culpa—i.e., the subjective element of
State responsibility notwithstanding the breach of an obligation—and sine
delicto liability, where the breach of an obligation is not required.

(b) Strict Liability

“Strict liability” is the name employed in Anglo-American law for a no-fault
liability applying mainly in the field of torts. There are writers who consider it
as an “objective and relative responsibility”17—that is, a no-fault (in the sense
of culpa) responsibility for wrongful acts which is not absolute—that is, which
admits certain exceptions.
Maybe that was the theory underpinning common-law “strict liability,” but
not necessarily to “strict liability” as applied in some statutory fields. Referring
to “abnormally dangerous conditions or activities,” William Prosser acknowl-
edges that:
… [T]he courts have in effect recognized a new doctrine that the defendant’s
enterprise, while it will be tolerated by the law, must pay its way. There is a strong
and growing tendency, where there is blame on neither side, to ask, in view of the
exigencies of social justice, who can best bear the loss and then to shift the loss by
creating liability where there has been no fault. An entire field of legislation, illus-
trated by the workmen’s compensation acts, has been based upon the same
principle.18
According to Prosser’s description, “strict liability” is based on the idea
that the defendant was engaged in some kind of lawful activity exposing oth-
ers to a risk of harm under circumstances that justify allocating certain losses
caused by such risk to the defendant, even if the defendant acted with reason-
able care.19 There are cases, however, where liability is created by statute and
does not correspond to a wrongful act or tort, such as happens in labor acci-
dents. “Strict liability,” then, seems to be applicable both to torts (ex delicto)
and to lawful acts causing damage—in the last case, as a form of sine delicto
liability.

17
See e.g. B. Conforti, Diritto Internazionale, 3rd ed (1989), pp. 346/347.
18
Prosser, The Law of Torts, St.Paul, Minessota, 1978, p. 494.
19
See Prosser and Keaton on the Law of Torts, 5th ed.1984, p. 243/245.

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26 Chapter III

(c) Absolute Liability

The expression “absolute liability” also seems to originate in the Anglo-
American law to refer to a more rigorous form of liability. As L.F.E. Goldie
writes: “The term ‘absolute liability’ has been revived… to indicate that a more
rigorous form of liability than the usually labelled ‘strict’ is now before us,
especially on the international arena.”20
Let us remember, however, that even “absolute liability” admits of excep-
tions in international practice.

(d) Sine delicto Liability

“Sine delicto liability” would exactly correspond to the original title of the ILC
topic: “Liability for the Injurious Consequences of Acts Not Prohibited by
International Law.” Any regime of liability involving no breach of obligation is
characterized by the fact that: “Liability arises from lawful activities, on the
basis of the mere causal link between these activities and the damage done.
For this reason, such form of liability is, by its own nature, objective and
absolute.”21
Paradoxically, the word “absolute” is here only relative. The similarities and
differences between “strict liability” and “liability sine delicto” were explained
above. Changing the onus probandi is not a mechanism of “liability sine
delicto,” but of responsibility for wrongful acts, since the absence of subjective
fault (culpa) has to be proved in order to exempt the defendant from responsi-
bility, whereas fault is irrelevant in liability.

(e) Responsabilité pour risque (Risk Liability)

Generally, in civil law countries, responsabilité pour risque (risk liability) is the
liability which applies to a hazardous activity on the basis of the risk created
by the activity. As pointed out above, it is a liability without breach of obliga-
tion and, consequently, also without culpa (lato sensu)—in other words, it is a
form of sine delicto liability since it applies to lawful conduct.
The term is, in this writer’s opinion, quite adequate in that it takes “risk”
into account—a decisive factor in this book.

20
L.F.E.Goldie, “Concepts of Strict and Absolute Liability in Terms of Relative Exposure to
Risk”, Netherlands Yearbook of International Law, 1985, p. 194.
21
Ricardo Pisillo-Mazzeschi, “Forms of International Responsibility for Environmental Harm”
in Francioni and Scovazzi (eds.) International Responsibility for Environmental Harm,
Graham&Trotman, Ltd. London, 1991.

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 Responsibility and Liability in International Law 27

3. Liability Governed by Primary Norms

It is generally agreed that in liability both the act causing harm and its legal
consequences are contained in the primary norm. As a result, the consequence
(the prompt payment of adequate compensation) does not correspond to the
breach of obligation but to the fulfillment of a condition, namely the produc-
tion of damage. Some writers assign this result to a compound obligation to
prevent and abate transboundary environmental interference causing signifi-
cant harm.22
Secondary obligations are the typical field of responsibility and were dealt
with in the ILC in the topic called “State Responsibility.” They may take the
form of reparation (restitution, compensation, and satisfaction23) or securi-
ties and guarantees of non repetition. An obligation of cessation may also
arise if the primary obligation was breached by means of a continuous act.24
In other words, the primary norm would say something like: “Damage
caused by the activity (hazardous but lawful) shall be compensated.”25 If
the obligation to compensate is not fulfilled, then—and only then—there
would be a breach of the primary obligation and a second obligation would
arise in one of the above-mentioned forms (reparation, securities, and guaran-
tees). Now we have entered into the domain of responsibility for wrongful
acts.
The distinction between primary and secondary norms and obligations
was dismissed by some ILC members as being only “relative”; the implica-
tion being that the distinction between “responsibility” and “liability” was
also “relative.” That sounds illogical: a human conduct has only two possibili-
ties in relation with a legal obligation—either to fulfill it or to breach it. In
the first case, the conduct remains within the domain of the primary norm.
In the second case, the conduct enters into the domain of the secondary norm.

22
Lefeber R., Transboundary Environmental Interference and the Origin of State Liability,
Kluwer Law International 1996, pp. 230-232. However, such compound obligation implies a
contradiction, since the breach of prevention carries responsibility. Prevention is an alien
body in that primary obligation.
23
“Full reparation for the injury caused by the internationally wrongful act shall take the form
of restitution, compensation and satisfaction, either singly or in combination …” (Art. 34 of
UNGA Res. 56/83).
24
Cessation implies stopping the continuous act which is producing an also continuous viola-
tion of the primary obligation.
25
That primary norm may be contained in a treaty, like in the many existing conventions on
civil liability mentioned in Chapter IV.

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28 Chapter III

There is one type of norm for each possible conduct and there are no more
than two such possibilities. The distinction, then, is not contingent but neces-
sary; it cannot be cavalierly cast aside for having a “relative” value.

4. Distinctive Features of Liability

In the opinion of the International Law Commission,26 “responsibility” should

be carefully separated from “liability,” as was said in its Report on the occasion
of the creation of the “liability” subject, in a much quoted paragraph.27 A com-
parison of the two terms’ elements and features shows that “responsibility”
and “liability” are two different legal species.28

5. Conclusions

The general examination of “liability” shows the absence of fault and the pres-
ence of risk. This combination makes possible the balancing of the different
interests, as there is nobody to blame for subsequent damage and risk was
accepted from the beginning by all concerned—as long as potential victims
were compensated. Any legal theory that did not take into account the risks
created by modern technologies would be blind to central aspects not only of
liability, but of modern life. A third element of liability is the social interest in
the acceptance of risk.
Prompt and adequate compensation to victims is of the essence for the
socially acceptable functioning of a hazardous activity: the irrelevance of fault
makes establishing who exactly is to blame for the damage unnecessary. Only

26
Yearbook 1976, Vol. II, Part Two, p. 70. Even though the term used in this sentence is “respon-
sibility for risk,” the subject created was called “International Liability for the Injurious
Consequences of Acts Not Prohibited by International Law,” thus formally introducing the
term “liability” into the subject. The transcribed paragraph reflects the opinion of the ILC as
to the separation of the topics at the time, as well as the identification of “liability” as different
from “responsibility”—though it might not have been the opinion of some of its individual
members along the way.
27
“Owing to the entirely different basis of the so-called responsibility for risk and the different
nature of the rules governing it, as well as its content and the form it may assume, a joint
examination of the two subjects could only make both of them more difficult to grasp.”
Yearbook 1976, Vol. II, Part Two, p. 70.
28
For a complete development of this reasoning, see Julio Barboza “Sine delicto (Causal)
Liability and Responsibility for Wrongful Acts in International Law” in International Law on
the Eve of the Twenty-first Century. Views from the International Law Commission,
pp. 317/328.

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 Responsibility and Liability in International Law 29

proof of causality is required, and we have seen how that requirement has been
made flexible in the framework of existing conventions. In summary, causa-
tion, not authorship, is the key element in liability. An international liability
regime would, then, be more efficient in the regulation of risk than a tradi-
tional State responsibility regime. “Responsibility,” originating as it does in a
wrongful act, provokes a legal reaction based on the individualization of both
the wrongdoer and the attribution of consequences to the wrongful act. In
that sense, “responsibility” is—in some aspects and somewhat paradoxically—
stricter than “strict liability”: once the fault of a person has been established,
total reparation (In integrum restitutio) is the response of the law.
The above features require a legal regulation indifferent to fault, but sensi-
tive to the costs of the enterprises conducting hazardous activities—i.e., sensi-
tive to their economic viability and to the benefits that those activities bring to
society. “Liability” is more concerned with statistics, costs, equitable distribu-
tions, insurances, and other practicalities than by culpa lato sensu, the breach
of obligations and the integral restitution. More interest is vested in the con-
tinuous functioning of the hazardous but socially useful activity than in cessa-
tion: the consequences of damage may be collectively allocated among the
different participants in the activity precisely to attain that objective. The con-
venience of liability regulation of hazardous activities has been acknowledged
by most domestic legal systems, since liability has to do with conducts that are
lawful and not wrongful.
Compensation, however, is not the single goal of a legal regime intending to
cope with risk. Equally important is the minimization of risk in order to lower
exposure to significant harm—in other words: prevention for the sake of peo-
ple and the environment. Some measure of prevention flows as a by-product
of liability, since its exercise tends to reduce the number of accidents and, con-
sequently, lower the cost of compensations. But that side effect of liability
depends upon many subjective factors—such as the temperament of the oper-
ator and his social sensitivity (or insensitivity), which might make him indif-
ferent to incidents because insurance pays—so that in order to reach the
sufficient level of protection that society owes to risk-bearers, or a State owes
to another State, an objective regulation of prevention is necessary. Besides, on
the international plane, measures—like notifications and consultations to
affected States—help establish cooperation and, therefore, diminish the risk of
incidents. A regime of “hard” obligations of prevention is, then, a necessary
complement to sine delicto liability in order to achieve an efficient regulation
of a hazardous activity. Such obligations fall on the State, which must insure
that the best conditions of safety are met in the handling of risk-threatening
transboundary damage.

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