State Responsibility For Environmental Protection and Preservation

STATE RESPONSIBILITY FOR
ENVIRONMENTAL PROTECTION AND PRESERVATION:

Ecological Unities and a Fragmented World Public Order*
Jan Schneider**
i. Introduction
It is today becoming widely recognized that the
planet earth--or, more expansively, the entire earth-space
system--is an ecological unity both In a basic scientific
sense and in the sense of interdependencies of the social
processes by which mankind uses it. The plants, animals
(including homo sapiens) and micro-organisms that inhabit
the planet are united with each other and with their non-
living surroundings in a network of complex, interrelated
natural and cultural components known as the planetary
"ecosystem." While there is this increasing realization
of inextricable ecological interrelatedness, the world pub-
lic order today remains essentially a loosely organized de-
cision-making system in which some one hundred and fifty
different territorial communities seek to promote and ag-
grandize their own particular interests. Although the
states-as-sole-actors approach to international politics
has long been discredited, the primacy of the state in con-
temporary international law and politics seems to remain
unchallenged for the foreseeable future.
In view of the earth's biosphere as a single ecologi-
cal system, and the fragmented nature of the contemporary
international public order, it follows that there must be a
basic obligation upon states to protect and preserve the hu-
man environment, and in particular that states must be re-
sponsible for using the best practical means available to
them to prevent pollution and other destructive impacts on
both their own and common resources. This basic obligation
may seem obvious. But simple and self-evident as it might
appear, it represents something of a radical departure from
traditional international legal laissez-faire doctrines
claimed by states in respect of activities affecting both
their own territory and specific internationally shared re-
sources such as the seas and air. Although it is funda-
mental to several recent international declarations of prin-
ciple and to many emanations from customary international
law, at present there exists no explicit treaty obligation
laying down this responsibility in comprehensive terms cap-
able of effective implementation. In fact, the whole in-
*This article is part of a forthcoming book, World
Public Order of the Environment: Toward an InternalTiol
Ecological Law and Organization. Copyright retained by
Jan Schneider.
**Associate at Covington & Burling; J.D. 1973, Ph.D.
1975 Yale University.
19s75] YALE STUDIES IN WORLD PUBLIC ORDER
ternational law of state responsibility for environmental
protection and preservation, and complementary questions of
liability and compensation for environmental injury, is cur-
rently in a state of obscurity and flux. It is hoped that
the present paper can make some contribution towards an elu-
cidation of the various issues involved and hence towards
its codification and progressive development.
In their interactions with each other in the use and en-
joyment of resources, states and other actors on the world
scene make claims and counterclaims for the prescription and
application of authority. The first consideration to be
faced in evaluating these contentions concerns the question
of the basic permissibility of the activities involved, i.e.
whether or not they have been prohibited by the world com-
munity. Assuming that the activities are permissible in some
degree, the problem then becomes managing the public order
consequences of the resulting deprivations so as properly to
take account of environmental costs and benefits. The latter
objective may be sought through measures to deter actors from
incurring environmental risk and/or through allocating com-
pensatory costs for the ex post facto control or elimination
of injurious results. I-k7e-ng with the basic aim of in-
ternational tort law to minimize unauthorized coerclons and
deprivations of all kinds, the fundamental question here is
how to shape a law that serves all these purposes.
The aims or objectives being sought through what is
very loosely terms the law of "state responsibility" for en-
vironmental protection and preservation, can thus be usefully
described in terms of three broad subgoals: prevention of en-
vironmental deprivations, deterrence of impending environ-
mental harm, and reparation or compensation for environmental
injury which nevertheless results. The present discussion,
after some initial observations on the general background of
the doctrine of state responsibility in the environmental
context, will examine international environmental law in
light of each of these policy subgoals. The intention here
is not only to explore the relevant substantive legal prin-
ciples, but also to try to shed some light on the practical
nature of the problems involved and of the procedures neces-
sary to cope with them.
II. Background of State Environmental Responsibility
Less than a century ago U.S. Attorney General Judson
Harmon asserted that "[the fundamental principle of inter-
national law is the absolute sovereignty of every nation,
as against all others, within its own territory." From
STATE ENVIRONMENTAL RESPONSIBILITY [voL.2
this he concluded that "the rules, principles, and precedents
of international law impose no liability or obligation" which
inhibits a state from using the resources within Its terri-
tory as it chooses without regard to the impact upon others.1
Fortunately, this ultranationalistic notion was not adhered
to at that time, nor has it won sympathy in the subsequent de-
velopment of international law. Instead of the Harmon doc-
trine, the international community has clearly adopted the
maxim of sic utere tuo ut alienum non laedas (use your own
property so as not toiijure tht oTanother) fundamental to
both Roman and common law.
Today state responsibility must be regarded as "a con-
comitant of substantive rules and of the supposition that acts
and omissions may be categorized as illegal by reference to
the rules establishing rights and duties."12 Traditionally It
has been defined in narrow terms of a wrongful act or omission
which causes injury to an alien, but the doctrine has not been
confined to that context. As the reporters of the Harvard
draft Convention on the International Responsibility of States
for Injuries to Aliens have acknowledged, "(t]he responsibil-
ity of a State may also be engaged by a violation of any
treaty or any rule of customary international law under such
circumstances as that no injury to an individual is in-
volved." 3 Since such responsibility may be either original
with the state itself or vicarious as a result of unauthorized
acts of its agents or nationals, there are a great number of
possible permutations and combinations of international claim
situations. 4 Intricate problems may arise in connection with
I. Treaty of Guadelupe-Hidalgo - International Law, 21

Op. Att'y Gen. 274, 281 & 283 (1893-97). For some discussion
of this matter see Utton, "International Environmental Law and
Consultation Mechanisms," 12 Colum. J. Transnat'| L. 56, 57-59
(1973).
2. Brownlie, Principles of Public International Law 418-
19 (2d ed. 1973).
3. "Convention on the International Responsibility of
States for Injuries to Aliens" 45 (Sohn & Baxter reporters
1961). See generally Amerasinghe, State Responsibility for
Injuries toAliens (1967).
4. On this whole subject of who is responsible for what,
see Fatouros, "Developing Legal Standards of Liability for
Transnational Environmental Injury: Bases of Liability and
Standing to Complain," in International Responsibility for En-
vironmental Injury (Stein ed. forthcoming). And there are also
questions of agency and joint tortfeasors. See Brownlie, supra
note 2, at 441-44.
1975] YALE STUDIES IN WORLD PUBLIC ORDER
the participation of several states in the same act, and
they can be further complicated by questions of responsibil-
ity of one state for the acts of another state or its na-
tionals. 5 This whole issue is currently under discussion
In the U.N. International Law Commission, but neither the
ILC nor any other authoritative body has yet agrzed on a com-
prehensive set of principles or treaty articles.o
Meanwhile, "state responsibility" has acquired a more ex-
pansive meaning, and the term is now commonly employed by in-
ternational lawyers to encompass a broad range of conditions
under which international obligations may be incurred. In the
environmental context, there has been explicit acceptance of
the principle that states must bear responsibility for the ef-
fects of their actions on the environment of other states or
the common environment. The international community has al-
so expressed concern for clarifying the circumstances under
which violation of a substantive norm entails an obligation to
make reparation or to pay compensation for any resultant dam-
age. Principles 21 and 22 of the Stockholm Declaration, which
have frequently been cited in the present study and elsewhere,
embody the current community expectations, and it seems worth
repeating them fully in juxtaposition here:
Principle 21
States have, in accordance with the Charter
of the United Nations and the principles of in-
ternational law, the sovereign right to exploit
their own resources pursuant to their own en-
vironmental policies, and the responsibility to
ensure that activities within their jurisdiction
5. Id.
6. The ILC has, however, only been giving attention at
this stage of its deliberations to the responsibility of
states for internationally wrongful acts, leaving aside the
problem of responsibility for risk. It is currently discuss-
ing a set of draft articles on the subject. For some use-
ful introductory remarks and the text of and commentary on
the draft articles submitted by Ago, the Special Rapporteur,
see 2 Report of the International Law Commission on the Work
of Its Twenty-Sixth Session, 29 U.N. GAOR Supp. 10, at 287,
U.N. Doc. A/9610/Rev.1 (1974). After preparation of these
articles, the General Assembly. has asked the Commission to
take up work on the topic of i-nternational liability for in-
jurious consequences arising out of acts not prohibited by
international law: See G.A. Res. 3315 (XXIX) (28 January
1975). --
STATE ENVIRONMENTAL RESPONSIBILITY [VOL.2
or control do not cause damage to the environment
of other States or of areas beyond the limits of
national jurisdiction.
Principle 22
States shall co-operate to develop further
the international law regarding liability and
compensation for the victims of pollution and
other environmental damage caused by activities
within the jurisdiction or control of such States
to areas beyond their jurisdiction. 7
Logically understood, this formulation would have to incor-
porate responsibility to prevent irremediable or noncom-
pensable effects as well as liability for actual damage,
responsibility to warn of reasonably foreseeable environ-
mental consequences of otherwise lawful activities and re-
sponsibility to submit to peaceful and expeditious settle-
ment disputes related to any of these matters. There has
been some subsequent elaboration along these lines, but
many crucial issues remain unstated and substantially mis-
understood.
With reference to this expansive notion of interna-
tional obligations, the pages that follow should indicate
what progress has in fact been made toward developing effec-
tive sanctioning processes for the implementation or enforce-
ment of international environmental law. I shall also try to
indicate areas where there are basic deficiencies in the evo-
lution of a regime of state environmental responsibility.
III. Prevention of Environmental Deprivations

Within the overall realm of state environmental respon-
sibility, the first objective of international sanctioning or
implementing processes is that of long-term prevention of en-
vironmental deprivations. Prevention embraces a great variety
of measures and activities designed, over a varying range of
time, significantly to reduce the probability of undesirable
environmental effects. The instruments of policy involved
encompass the whole range of diplomatic, economic, ideologi-
cal and military strategies available for the maintenance of
international public order. Specific examples of likely
7. Report of the United Nations Conference on the

Human Environment, U.N. Doc. AICONF.4/l4, at 7 (1972) [here-
inafter Report.
"police action" may include the promulgation of standards

and criteria for use and enjoyment, inspection and monitor-
ing of compliance, the prohibition of enjoyment of the re-
sources to noncompliant users, and legal or administrative
proceedings to investigate complaints and determine appro-
priate penalties for violators.
For a comprehensive view, it is necessary to look both
at national policing systems and their sanctions for infringe-
ment of national environmental protection legislation and at
the conditions under which, and means by which, these and cer-
tain other sanctioning processes are directed toward upholding
multilateral prevention prescriptions. Then, with reference
to how to determine what new preventive measures may be neces-
sary or advisable In the future, a word ought to be added about
the crucial role of monitoring in enabling management of re-
sources according to sound scientific principles.
A. National Environmental Policing Systems

An excellent example in point, and one with which most
international lawyers will be familiar, is the Canadian Arc-
tic Waters Pollution Prevention Act. This piece of legisla-
tion is a model attempt by one state to provide comprehensive
8
environmental policing for its designated area of coverage.
Noone doubts the particularly severe climatic conditions or
other special ecological circumstances of Arctic regions. On
the other hand, the political ecology of the Arctic is exceed-
ingly complex and unconducive to joint action. 9 Consequently,
taking cognizance of its "responsibility for the welfare of
the Eskimo and other inhabitants of the Canadian arctic and
the preservation of the peculiar ecological balance that now
exists in the water, ice and land areas of the Canadian
8. Rev. Stat. Can. 1970 (1st Supp.) c. 2 (1970).

9. The basic poFitical ecological problem is as fol-
lows: On the one hand, claims of sovereignty on a sector
theory have been raised as to certain parts of the Arctic by
the Soviet Union. But, on the other, the United States,
among others, has strongly and consistently opposed the ad-
vancement of any such claims or the drawing of baselines by
Canada in its neighboring northern areas. As a result, any
determination in an international forum of rules and regula-
tions to apply to the Arctic, which would in effect refer to
the Arctic north of Canada overwhel-mingly, is not politically
viable from the Canadian point of view. See generally Pharand,
The Law of the Sea in the Arctic (1973).
arctic,"110 the government of Canada has gone ahead on its

own with this legislation. The act prohibits and prescribes
penalties for the deposit of "waste" in Arctic waters or on
the islands or mainland under conditions that such waste may
enter Arctic waters. It provides for civil liability result-
ing from such deposit on the part of persons engaged in ex-
ploring for, developing or exploiting the natural resources
on the land adjacent to the Arctic Waters or in the submarine
areas below the waters, or by persons carrying on any under-
taking on the mainland or the islands of the Canadian Arctic
or on Arctic waters, or by owners of ships navigating within
Arctic waters and owners of the cargo of any such ship (which
liability is absolute and not dependent upon any proof of
fault or negligence). In addition to these basic substantive
provisions, the act empowers the Governor General in Council
to make regulations relating to navigation in shipping safety
control zones and to prohibit any ship from entering such
zones unless it meets the regulations concerning hull and
fuel tank construction, navigation aids, safety equipment,
pilotage, icebreaker escort, etc.; he may also order destruc-
tion or removal of ships in distress which are depositing
waste or are likely to do so in the Arctic waters. The same
legislation furthermore makes arrangement for "Pollution Pre-
vention Officers" who among other things may, with the con-
sent of the Governor General in Council, seize a ship and its
cargo anywhere in the Arctic waters within the hundred-mile
zone of coverage or elsewhere in the territorial sea or the
internal or inland waters of Canada when there is suspicion,
on reasonable grounds, that the ship, or ship or cargo owners
have contravened the provisions of the act. Upon conviction
for such an offense, a court can order the forfeiture of both
the ship and its cargo.
Other nations have made differing policing arrangements
in accordance with what they understand as the nature and scope
of their pollution responsibility as concerns their own waters
and coasts and in regard to inclusive resources. Some of the
provisions of the U.S. Ports and Waterways Safety Program, for
example, have farreaching extraterritorial effects. 1 1 But, in
general, flag states, as might be expected, have expended very
little energy in developing capabilities for pollution preven-
tion on the part of their vessels (which may not even come near
10. Supra note 8, preamble.

11. Ports and Waterways Safety Act of 1972, 33 U.S.C.A.
§ 1221 et seq. (Supp. 1975).
their shores). 12 Rather than dwell on the extent of or juris-

dictional bases for enforcement regimes, however, the point
for present purposes is to highlight the basic nature of the
policing and sanctioning processes themselves. As was shown
by the example of the Arctic Waters legislation, a comprehen-
sive set of preventive measures would encompass regulations
for the conduct of operations in regard to the use and enjoy-
ment of ecologically interdependent resources on a functional
basis, investigatory powers to oversee compliance, subpoena
and other powers for the production of witnesses and documents,
seizure powers or bonding arrangements for the security of col-
lateral with which to satisfy an adverse judgment, juridical or
administrative procedures to evaluate conformity or noncon-
formity, and civil and/or criminal penalties for inadvertent
or willful violation. The U.S. Ports and Waterways Safety Act
even goes as far in its criminal penalties as, besides or in
addition to stipulating fines, providing for imprisonment of
up to five years.13
The references so far have been drawn primarily from the
area of marine environmental protection, since that is the gen-
eral subject of most direct and immediate international en-
vironmental concern at the present time. It goes without say-
ing, however, that states individually and collectively also
have an interest in protecting their air, rivers, lakes and
other resources from pollution and other kinds of environ-
mental deprivations and their people from various additional
nuisances (e.g. noise) as well. It would be futile to attempt
to catalogu~ill sorts of national environmental legislation
and its enforcement provisions here (although that task has
already in fact been begun by others elsewherel14). There are
some variations, but the skeletal enforcement patterns are not
fundamentally different in kind, and for the moment it should
suffice to grasp the rudiments of what is needed.
12. On flags of convenience, see generally Boczek, Flags

of Convenience (1962); "OECD Study on FlagsoT Convenience,-
4 J. Maritime L. & Com. 231 (1973).
13. 33 U.S.C.A. § 1227.
14. This is a main concern, for example, of the Environ-
mental Law Centre of the International Union for the Conserva-
tion of Nature and Natural Resources (IUCN).
B. Sanctions to Enforce International Prevention

Prescriptions
The above examples have dealt with preventive measures
to enforce national legislation, but the requirements are not
dissimilar either as regards the implementation or enforcement
of international law. It has often been alleged that, since a
norm may be said to have a sanction (and consequently be con-
sidered "law") when there is a government which will Intervene
if it is disobeyed, "therefore international law has no legal
sanction." 15 Except perhaps in the most narrow legalistic
ratiocinations, that statement is meaningless or irrelevant,
since international law has. at its service a whole range of
political, economic, social and even military sanctions on the
part of nation-states to secure implementation.
As far as intervention by international machinery itself
is concerned, a declaratory judgment by 'the International Court
of Justice or some other international tribunal may have the
character of a "sanction" or "measure of satisfaction.",16 The
declaration in the Corfu Channel case of the illegality of the
British minesweeping "Operation Retail" provides a textbook
example. 17 There has, however, been some question about the
15. See Black's Law Dictionary 1507 (Rev. 4th ed. 1968).
16. O--state responsibility ind the role of declaratory
judgments see the report by Garcia-Amador, Special Rapporteur,
[1961] 2 Y.B. Int'l L. Comm'n 1, 14-16, U.N. Doc. A/CN.4/134
(1961). He explains that sometimes declaratory judgments "con-
stitute a simple means of giving satisfaction for 'moral and
political' injury caused to a State, or, in other words, a methc
of 'making reparation' for an act contrary to international law
by formally declaring it to be unlawful and thus sanctioning or
censuring the conduct imputable to the defendant state"; at othc
times such a judgment "constitutes a type of 'juridical repara-
tion' for the unlawfulness of an act or omission capable of oc-
casioning actual and effective injury and therefore constitutes
a form of reparation sui generis." Id. at 15-16.
17. The Intern-tTonal Court oT-Justice stated that "to
ensure respect for international law, . . the Court must de-
clare that the action of the British Navy constituted a viola-
tion of Albanian sovereignty" and that "[this declaration is ir
accordance with the request made by Albania through her Counsel
[for "the declaration of the Court from a legal point of view"]
and is in itself appropriate satisfaction." [1949] I.C.J. Rep.
4, 35.
19751 YALE STUDIES IN WORLD PUBLIC ORDER
role of declaratory judgments in cases of potential environ-

mental injury, with at least one writer ruling out resort to
them as a means of determination of reciprocal rights and du-
ties of parties to a dispute involving extraterritorial en-
vironmental interference caused by a per se lawful activi y
in the absence or in advance of actuaTTVp-ovable injury. 1"
Yet, as others have pointed out, the arbitral tribunal in
the Trail Smelter case did, nevertheless, hold that "it is
the duty of the Government of the Dominion of Canada to see
to it that this conduct [the future operation of the smelter]
should be in conformity with the obligation of the Dominion
under international law as herein determined"; 1 9 so the ques-
tion at the very least remains open.
Unfortunately, clarification has not been provided by
the recent Nuclear Tests decisions, where the International
Court of Justice chose not to confront the problem of illegal
ity. 2 0 It will be remembered that the I.C.J. held, in ef-
fect, that cessation of the atmospheric testing by France,
together with French public statements announcing an inten-
tion hereafter to test only underground, rendered moot the
issue upon which it had been asked to pass judgment by pro-
viding the relief the parties wanted. More specifically,
having found that "the original and ultimate objective" of
the applicants in these cases "was and has remained to ob-
tain a termination of those tests [aboveground]" and there-
fore that the claim "cannot be regarded as being a claim for
a declaratory judgment,",2 1 the majority concluded that the
controversy "no longer has any object and that the Court is
not called upon to give a decision thereon."'2 2 Dissenting
18. Handl, "Territorial Sovereignty and the Problem

of Transnational Pollution," 69 AJIL 50, 72-75 (1975). But
cf. the second use of declaratory judgments described in
Ga"-rcia-Amador's report, supra note 16.
19. (United States v. Canada), 3 U.N.R.I.A.A. 1938,
1963 (1941).
20. Nuclear Tests (Australia v. France) and Nuclear
Tests (New Zea'land v. France), [1974] I.C.J. Rep. 253 & 457.
For discussion, see e.g. Goldie, "The Nuclear Tests Cases:
Restraints on Environ-m-ental Harm," 5 J. Maritime L. & Com.
491 (1974); Frank, "Word Made Law: The Decision of the In-
ternational Court of Justice in-the Nuclear Test Cases," 69
AJIL 612 (1975).
21. Id. at 263 & 457.
22. ITd.at 272. It consequently also found that the
application-of Fiji for permission to intervene lapsed and
judges insisted, not only did this assertion fail to take

account of the purpose and utility of a request for a
declaratory judgment at international law, but it also
changed the scope and nature of the formal submissions.2 3
Still, the majority decision was not to decide.
In any event, in the overwhelming majority of circum-
stances, responsibility for enforcement of international en-
vironmental law so as to prevent injury will rest with in-
dividual states. When states ratify international treaties
and agreements, they quite routinely have to pass detailed
implementing legislation (although some of them are, of
course, self-executing). Principle 4 of the General Prin-
ciples on Marine Pollution has expressly provided that:
States should ensure that their national
legislation provides adequate sanctions against
those who infringe existing regulations on ma-
2
rine pollution; N
and, for another example, each contracting party to the
Paris Land-Based Sources Convention has specifically under-
taken "to ensure compliance with the provisions of this Con-
vention and to take in its territory appropriate measures.",2 5
But the responsibility of states to conform national legis-
lation and enforcement action to agreed international norms
is usually considered as implied under both conventional and
customary international law and is rarely so explicitly
stated. The specific sanctioning regimes often vary con-
siderably in accordance with domestic constitutional criter-
ia, although certain policing measures have been the subject
of international accord. Examples in the latter category
might be provided by the Oslo and London Ocean Dumping Con-
ventionsz6 which stipulate that states should set up "spe-
that therefore "no further action thereon is called for on

the part of the Court." Order of December 20, 1974, [1974)
I.C.J. Rep. 530, 531.
23. See Joint Dissenting Opinion of Judges Onyeama, Dil-
lard, Jimeiiiide Arechaga and Sir Humphrey Waldock, [1974]
I.C.J. Rep. 494.
24. General Principles for the Assessment and Control
of Marine Pollution, Report, supra note 7, Annex III, at 1.
These principles, along-wit a Statement of Objectives on
the same subject, were agreed to by the Intergovernmental
Working Group on Marine Pollution convened in preparation
for the Stockholm Conference.
25. Convention for the Prevention of Marine Pollution
from Land-Based Sources, done June 4, 1974, in 13 Int'l Legal
Materials 352, art. 12 (197-T.
26. Convention for the Prevention of Marine Pollution
cial permit" systems for certain grey-listed substances tak-

ing account of various specified factors; but as to actual
regulations and enforcement details, they too leave a great
deal to the legislative, executive and judicial imagination
of national governments.
On the core issue of what is to be prevented, by whom
and to what extent, there is a multiplicity of existing
treaties and customary obligations. The following is just
a partial listing of the conventional prevention prescrip-
tions intended to give some idea of their legislative scope
and variety: the 1954 International Convention for the Pre-
vention of Pollution of the Seas by Oil with its subsequent
amendments and a whole host of related legislation; 2 7 the
1971 Oslo Convention for the Prevention of Marine Pollution
by Dumping from Ships and Aircraft and the followina 1972
London Convention on the Dumping of Wastes at Sea;2 8 the In-
ternational Convention for the Prevention of Pollution from
Ships; 29 the Paris Convention for the Prevention of Marine
Pollution from Land-Based Sources;
30
the Outer Space Treaty; 3 1
the 1963 Treaty Banning Nuclear Weapons Tests in the Atmo-
sphere, in Outer Space and Under Water; 3 2 and the later Sea-
bed Denuclearization and Tlatelolco treaties; 3 3 the Antarc-
by Dumping from Ships and Aircraft, done February 15, 1972,

in 11 Int'l Legal Materials, at 262 TT972) and Convention on
the Dumping of Wastes at Sea, done November 13,1972,ibld. 1294.
27. Done May 12, 1954, [1961 3 U.S.T. 2989, TTT".S.
No. 4900, 327 U.N.T.S. 3; with amendments adopted April 11,
1962, [1966] 2 U.S.T. 1523, T.I.A.S. No. 6109, 600 U.N.T.S.
332; October 21, 1969, annexed to IMCO Assem. Res. 175 (VI)
(1969); October 15, 1971, text in 11 Int'l Legal Materials
267 (1972).
28. Supra note 26.
29. Done November 2, 1973, in 12 Int'l Legal Materials
1319 (19737.-
30. Supra note 25.
31. Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, Including
the Moon and Other Celestial Bodies, done January 27, 1967,
[1967] 3 U.S.T. 2410, T.I.A.S. No. 63147-,610 U.N.T.S. 205,
arts 6-9.
32. Done August 6, 1963, [1963] 2 U.S.T. 1313, T.I.A.S.
No. 5433, WiB-U.N.T.S. 43, preamble & art. i.
33. Treaty on the Prohibition of the Emplacement of
Nuclear Weapons and Other Weapons of Mass Destruction on
STATE ENVIRONMENTAL RESPONSIBILITY [VOL,2
tic Treaty34 with its prohibitions, the draft European Con-

vention for the Protection of International Watercourses
Against Pollution 3 5 and other agreements to prevent river
degradation, up to and including the new USSR draft Conven-
tion on the Prohibition of Action to Influence the Environ-
ment and Climate for special purposes.3 6
"By whom" in most of these treaties means by the na-
tional or flag state of those carrying out the activities
in question. A new and desirable development from the en-
vironmental point of view, nevertheless, is the provision
for coastal state enforcement in the London Dumping Conven-
tion and elsewhere and its consideration at the Law of the
Sea Conference. 3 7 "To what extent," of course, regularly
means (as is not surprising) to the fullest extent necessary
to accomplish the specified purposes according to agreed
standards and criteria, and the reach of allowable enforce-
ment measures is not usually an issue. In the debate over
coastal state enforcement in the deliberations on the law
of the sea, however, there has been sharp and highly vocal
disagreement over whether or not such jurisdiction should
extend to shore-based or in-port investigation and action
only, detention of vessels, stopping and inspecting ships,
power for ordering them out of coastal zones, arrest of of-
fending vessels, institution of proceedings with only mone-
tary or more drastic penalties, etc.3 8 Again from the per-
spective of environmental protection, full enforcement au-
the Seabed and the Ocean Floor and in the Subsoil Thereof,
done February 11, 1971, [1973] 1 U.S.T. 701, T.I.A.S. No.
7337 and Treaty for the Prohibition of Nuclear Weapons in
Latin America, done February 14, 1967, 634 U.N.T.S. 281.
34. December 1, 1959, [1961] 1 U.S.T. 794, T.I.A.S.
No. 4780, 402 U.N.T.S. 71.
35. Report, Council of Europe Doc. EXP/Eau (74) 6 Add.
1 (13 March 1974.
36. U.N. Doc. A/C.l/L.675, Annex (1974), reprinted in
13 Int'l Legal Materials 1472 (1974).
37. See supra note 26 & infra note 38.
38. Atthis point, these questions are very much open.
Whatever its other virtues, to say that the enforcement pro-
visions of the Marine Environment Single Negotiation Text,
U.N. Doc. A/CONF.62/W.P.8/Part III (1975) are confusing is
something of an understatement. Using this text as the fu-
ture "basis for negotiation," which it is intended to be,
may not at all expedite future deliberations of the Confer-
ence on this particular matter.
thority qualified only by requirements that such powers be

exercised reasonably and nondiscriminatorily, without undue
interference with other leaitimate uses of the seas, and
subject to readily available dispute settlement provisions
is warranted. Since the issues of flag/port/coastal state
jurisdiction have been belabored at length elsewhere and
since LOS-Ill has at the time of this writing not yet even
come close to resolving them, there is no apparent need for
a further elaboration on these matters.
C. Environmental Monitoring
Before passing on, however, to the controversial sub-
ject of environmental deterrence measures and to the scarce-
ly-considered subject of liability and compensation regimes,
it should be strongly reemphasized that acquisition of ac-
curate and broad-based information is critical to accomplish-
ment of the objective of prevention of environmental injury.
In order to be able both to evaluate the effectiveness of
existing provisions and to determine what further preven-
tive measures may be required, it is essential that there
be an adequate international monitoring system. The need
for ongoing and comprehensive monitoring on a global scale
was, of course, recognized at the U.N. Conference on the
Human Environment, and reference to the need for monitoring
was incorporated in at least twenty-three specific Recom-
mendations dealing with very diverse areas of concern. 3 9
Consequently, planning got underway for the establishment
of the Global Environmental Monitoring System (GEMS). 4 0
Scientists from many countries are working on determining
what variables have to be measured and what criteria should
be used in assessment of the results. 4 1 The present in-
quiry can only hope to touch in a few words on some of the
basic legal implications involved.
In the first place, states which permit or engage in
activities which result in the release of substances that
may cause environmentally deleterious consequences have a
39. See Report, supra note 7, at 59.

40. For descrfptio, see "The Global Environmental
Monitoring System," U.N. Doc. UNEP/GC/31/Add.2 (1975). See
also Report of the Governing Council of the United Nations
Environment Programme on Its Third Session, U.N. Doc. UNEP/
GC/55, at 45-47, 112 (1975).
41. Id.
responsibility which should be given explicit recognition,

in the best interests of their own citizens as well as to
be consistent with the rights of other states, to determine
the effects of such activities. Secondly, the system can-
not work properly to protect common interests unless there
is wide dissemination of appropriate information in respect
of the release of substances, or the known presence of sub-
stances, likely to cause pollution and of the particular
features of a given environment and e.g. its sensitivity to
pollutants. Participation in GEMS an-other international
monitoring systems is at present voluntaristic only, but
at least in one important area--marine environmental moni-
toring--states have agreed on certain firm commitments. The
draft article on monitoring negotiated at the Geneva session
of LOS-ill obligates states both to "observe, measure, eval-
uate and analyse, by recognized methods the risks or ef-
fects of pollution of the marine environment" and to "pro-
vide at appropriate intervals reports of the results ob-
tained . . . to UNEP or any other competent international
or regional organizations, which should make them available
to all States.,'4 2 Yet this is only part of an overall neces-
sity: Similar obligations should be acknowledged and upheld
in respect of other areas and ecological interdependencies.
There will be more discussion of some of these issues
later in connection with the subject of environmental warn-
ing and notification. The point here and now is simply,
once more, that the responsibility to acquire knowledge and
assess the consequences of ongoing and proposed actions Is
not merely a time-to-time affair, but a continuous in-
dividual and reciprocal responsibility of states prerequi-
site to any conceptualization and protection of common en-
vironmental interests at a time of emerging inextricable
ecological interdependency. In short, a reliable and up-
to-date data base is fundamental to wise and informed
political choice.
IV. Deterrence of Impending Environmental Harm

Supplementary to their overall interest in long-term
prevention of environmental deprivations, states must also
be concerned with the deterrence of particular threats to
the environment that have emerged and been clearly posed or
42. Results of Consideration of Proposals and Amend-

ments Relating to the Preservation of the Marine Environ-
ment, U.N. Doc. A/CONF.62/C.3/L.15/Add.l, at 1, art. 8 (1975).
are imminently promised. Such a danger which one state may

have an obligation--vis-a-vis its own citizens and/or the in-
ternational community--to try to avert may have had its ori-
gin in activities taking place either in another state's
territory or in areas beyond national jurisdiction or con-
trol. Furthermore, the state which must bear primary respon-
sibility to deter impending environmental deprivations need
not necessarily be the state which was charged initially with
the obligation to prevent the threatened effects, nor is that
former state (or its nationals) particularly likely ultimate-
ly to be held liable for any damage which may nevertheless
result.
Admittedly the whole theory of "state responsibility"
on these questions is still nebulous and underdeveloped, and
rights and duties of states in such cases of environmental
damage are especially difficult to define. Perhaps the under-
standing of the problem can be facilitated through some con-
crete illustrations of the multivariate types of circum-
stances that may be involved. When an injurious situation
has actually emerged there is an immediate problem of abate-
ment or minimization of damage, but at times it may seem es-
sential or desirable to seek to avert the very severe risk
of grave environmental danger through injunctive or other
temporary relief rather than waitinq for an actual threat to
materialize; for accomplishment of these objectives, inter-
state environmental warninq and notification networks are
necessary, and some observations will be added about progress
to date in this regard.
A. Abatement and Minimization of Damage

Probably the most dramatic illustration of pollution-
abatement measures is still provided by the Torrey Canyon
catastrophe. 4 3 The tanker, whose deadweight tonnage of
118,285 ranked her third largest in the world at the time
of her demise, was owned by a Bermuda corporation, which was
43. For presentation of the facts and analysis of the

legal issues raised by this disaster, see Brown, "The Les-
sons of the Torrey Canyon," 21 Current Legal Problems 113
(1968); McGurren, "The Externalities of a Torrey Canyon
Situation: An Impetus for Change in Legislation," 11
Natural Resources J. 349 (1971); Utton, "Protective Measures
and the Torrey Canyon," 9 B.C. Ind. & Com. L. Rev. 613 (1968);
Comment, "Post Torrey Canyon: Toward a Ntew Solution to the
Problem of Traumatic Oil Spill," 2 Conn. L. Rev. 632 (1970).
controlled by an American oil corporation, was registered

in and flew the flag of Liberia, and was manned by an Ital-
ian crew; she was chartered by a British oil company par-
tially owned by the British government, was insured by com-
panies in the United States and Great Britain and was
claimed for salvage by a Dutch corporation. When on March
18, 1967, going at full speed, the Torrey Canyon struck a
reef off the southwest corner of England, she was carrying
880,000 barrels of Kuwaiti crude oil. The oil started
spilling out of her raked tanks almost immediately after
grounding, and after three days it had covered an area
over 35 miles long and 18 miles wide. Carried along by
the wind, tides and the Gulf Stream, the thick blanket of
crude oil spread toward some of the best resort beaches and
fishing areas in the United Kingdom. Under the circum-
stances, the British could hardly have been expected to sit
back and wait for the rights and responsibilities to be
sorted out among all the interested parties, and indeed the
British government would have bean sorely remiss in its re-
sponsibilities for failure to act to avert the danger to
its own resources (not to mention those of its neighbors
and inclusive resources). Consequently, after the Dutch sal-
vors gave up their attempt to refloat the vessel, the Royal
Air Force bombed her in a manner calculated to ignite the
oil remaining within the hulk so that it would burn before
it also leaked out onto the waters. Almost two dozen large
vessels and an accompanying host of smaller craft began
spraying and shoveling detergent on the slick to emulsify
it, but a great deal of oil still managed to pollute the
waters and blacken the shores of Cornwall, the States of
Guernsey and later of France.
The use of force by the RAF in the above instance was,
of course, an uncharacteristic occurrence, and most oil
spills occasion more routine "cleanup" measures. But tank-
er casualties themselves are, unfortunately, becoming a more
familiar phenomenon. Seemingly to spur international deci-
sion-makers to provide for effective measures, each major
world conference dealing with environmental affairs and pol-
lution appears to have its own benchmark incident. The
Stockholm Conference was marked by the Cherry Point oil
spill.44 In that incident, a Liberian tanker was unloadlng
44. For details see "Canada Asks U.S. Payment for Oil
Spill on West Coast," N.Y. Times, June 10, 1972, at 36, col.
5; "Oil in Canadian Waters" (edit.), id.,June 27, 1972, at
40, col. 1.
at the Cherry Point refinery of Atlantic Richfield Corpora-

tion located in Ferndale, Washington. She accidentally
spilled some 12,000 gallons of crude oil, a good deal of
which fouled about five miles of beaches in British Columbia,
Canada. This spill was relatively small in and of itself,
but it produced major political repercussions, engendering
angry Canadian newspaper articles and forcing an emergency
debate in Parliament. Meanwhile, the refinery and authori-
ties on both sides of the waters took prompt action to con-
tain the spill and minimize the damage, and consequently
"the damage to Canadian waters and shoreline was less than
might otherwise have resulted." 4 5 The Caracas session of
the Law of the Sea Conference had its casualty as well.
When the tanker Metula, which flew the flag of the Nether-
lands and was owned
-by the Curacao Shipping Company and car-
ried Shell oil, went aground in the Straits of Magellan she
lost 6,000 tons of crude oil along a front of about twenty-
five miles. Undoubtedly, this accident should have given a
jolt to the Committee 3 delegates discussing preservation of
the marine environment. 4 6 Fearing that the ship might split
45. Statement on the Cherry Point Oil Spill by Hon,

Mitchell Sharp, Secretary of State for External Affairs,
House of Commons Debates, quoted in 1I Can. Y.B. Int'l L.
314, 333-34 (1973). On the Canadian reaction in general
and subsequent handling of cleanup costs, a Canadian source
supplied some three dozen clippings, including: "U.S. Oil
Spill Leaving Film on B.C. Beach," Gazette (Montreal), June
6, 1972; "Municipal Workers, Volunteers Cleaning Up B.C.
Spill," Toronto Globe & Mail, June 7, 1972; "B.C. Oil Spill
Tars Pipeline's Future," Ottawa Journal, June 7, 1972; "MPs
Back Demand for Oil Spill Payment," Montreal Star, June 9,
1972; "Compensation Demanded for Oil Spill in B.C.," Evening
Telegram (St. Johns), June 9, 1972; Sellar, "Oil Spill Dam-
ages Sought," Calgary Herald, June 9, 1972; "U.S. Oil Company
Billed for Spill," Montreal Star, June 29, 1972; "ARCO Sets
Up Offices for Oil Damage Bills," New Westminster Columbian,
June 24, 1972; "ARCO Pays $19,000 Cleanup Bill," Vancouver
Sun, Aug. 10, 1972; "Oil Spill Billing Will Hit $26,000,"
New Westminster Columbian, Aug. 8, 1972.
46. For facts and discussion, see Third Committee, Sum-
mary Record of the Fifteenth Meeting, U.N. Doc. A/CONF.62/
C.3/SR.15 (1974), reprinted in 2 Third United Nations Confer-
ence on the Law of the Sea: Official Records 372, 373-75, U.N.
Sales Doc. E.75.V.4 (1975).
apart imminently and thereby endanger safety of navigation,

the well-being of coastal inhabitants and the life of local
marine species, the Chilean government immediately undertook
emergency measures; in view of their considerable experience,
the governments of Canada and the United States offered ex-
perts and technical assistance to these operations.
It ought again to be emphasized that what is being de-
terred in all these cases of abatement measures is not mere-
ly impending pollution injury to waters and amenities.
There is also a very clear and present danger to living re-
sources in circumstances of oil spills or other casualties.
As one expert has observed:
A slick kills as it goes, often doing some
of its worst damage far from the scene of the
disaster. Oil from the Arrow, which went aground
in Chedabucto Bay, off Nova Scotia, in February,
1970, killed seabirds--forty-eight hundred of
them--as far away as Sable Island, a hundred and
ten miles out in the Atlantic from the wreck. The
damage a slick does as it travels is comprehen-
sive, destroying both the very foundation of sea
life, the plankton, and the highest reach of it,
the birds in the air. Phytoplankton, the tiny
plants responsible for photosynthesis and for the
primary production of more than ninety per cent
of the living material in the seas, must function
in the upper levels of the oceans, where light
penetrates. Fish feed on it, and the fish at-
tract birds. Because of this cycle, all these
creatures are victims of oil spills; also destroyed
are the surface-mating fish eggs and fry.47
This account excludes mention of the further economic and
social consequences in terms of a dependency of coastal
populations on fishery resources, of national and global
populations on protein resources from the sea, etc. And
the discussion thus keeps reverting to the original ob-
servation of inescapable ecological interdependencies.
Short-term measures to abate or minimize environ-
mental harm are not, of course, exhausted by the example
of oil spills containment measures. Such endeavors may
47. Mostert, "Profiles: Supertankers," New Yorker 45

& 46 (2 parts, May 13 & May 20, 1974), the quotation being
from Part 11,at 75. See also Mostert, Supership (1974),
which expands upon the'searticles.
instead be concerned with activities on air, land, sea or

elsewhere involving any number of possible substances and
dangers. An outstanding example of the variety of factors
that may be involved is provided by the Palomares inci-
dent. 4 8 When a United States B-52 nuclear bomber collided
with a jet tanker during a refueling mission, four bombs
were dropped by accident. Two of the bombs that fell on
land ruptured and their TNT charges exploded, scattering
uranium and plutonium particles near the Spanish coastal
village of Palomares and thereby causing a grave and immi-
nent danger to the inhabitants and ecology of the area. The
governments of the U.S. and Spain immediately undertook a
huge effort to free the region from contamination, which
even included the burying of some 1,750 tons of mildly radio-
active Spanish soil in the U.S. 4 9 A third bomb hit the earth
intact, but the fourth hydrogen bomb somehow managed to get
lost. On the assumption that the missing object lay some-
where on the deep and mountainous bottom of the Mediterran-
ean within a 125-square mile locus, naval experts began an
intense submarine search. It was located after two months,
but the recovery operation was beset by bad luck and the
bomb tumbled down a deep underwater shelf to get lost again
for nine more desperate days. At last, after 80 days, the
bomb--reported to be a 20-megaton device with an explosive
force equal to 20 million tons of TNT--was retrieved in a
highly specialized 48-hour operation by a U.S. Havy salvage
crew. U.S. Naval and Air Force commanders on the scene op-
posed any public display on security grounds, but a com-
promise was worked out under which certain selected Spanish
officials and newsmen were allowed to view the bomb aboard
the task force's flagship so as to be able to assure them-
selves and the public that the danger had really been avert-
ed. As far as is known, that is the first time a hydrogen
50
bomb has ever been put on display.
48. See generally Lewis, One of Our H-Bombs is Missing

(1967); Szu-c, The Bombs -ofPalomares (1967).
49. "Radioactive Spanish Earth Is Buried 10 Feet Deep
in South Carolina," N.Y. Times, Apr. 12, 1966, at 28, col. 3.
50. On these final details, see Szulc, "H-Bomb is Re-
covered After 80 Days," id., Apr. 8, 1966, at 1, col. 4;
Szulc, "Dented H-Bomb Is Displayed on Recovery Ship," id.,
Apr. 9, 1966, at 1, col. 4.
As all these instances illustrate, once the danger has

materialized, the general nature and extent of measures that
should be taken to abate it are often quite clear. In the
above cases it was also by and large rather easy to see who
had the best means and greatest responsibility to take them.
The latter factor is, however, not always so readily apparent.
Consequently, to avoid undue haggling and critical delay, for
some contingencies specific international arrangements have
been made as to who is to take what action.
It is, first of all, firmly established by customary in-
ternational law doctrines of self-help that any state does
not have to await actual catastrophe at its borders, but has
a right to protect itself from impending disasters, even to
the extent of employing necessary and proportional force un-
der the circumstances.51 And in the particular case of oil
spills, the International Convention Relating to Interven-
tion on the High Seas in Cases of Oil Pollution Casualties
specifically authorizes parties to take such measures as may
be necessary:
to prevent, mitigate or eliminate grave and im-
minent danger to their coastline or related
interests from pollution or threat of pollu-
tion of the sea by oil, following upon a mari-
time casualty or acts related to such a casual-
ty, which may reasonably be expected to result
in major harmful consequences. 5 2
But conditions may arise when it is advisable or desirable
that action be taken before it is evident which particular
state is the primary target of the impending harm or where
there is reason to be greatly concerned over grave and im-
minent danger to shared resources, and some provisions are
being made to meet these types of situations. Canada and
the United States, for example, have adopted a "Joint U.S.-
Canadian Oil and Hazardous Materials Pollution Continency
Plan for the Great Lakes Region," which fixes spheres of
responsibility for the U.S. Coast Guard and the Canadian
Ministry of Transport and whose purpose is "to provide for
coordinated and integrated response to pollution incidents
in the Great Lakes System by responsible federal, state,
51. See the discussion of self-defense, self-preserva-

tion and security in McDougal & Feliciano, Law and Minimum
World Public Order 213-16 et seq. (1961).
52. Done November 29--9-69-, in 9 Int'l Legal Materials
25 (1970).
provincial and local agencies." 5 3 With comparable objec-

tives in regard to a more broadly inclusive resource, the
governments of Belgium, Denmark, France, West Germany, the
Netherlands, Norway, Sweden and the United Kingdom, in the
Bonn Agreement Concerning Pollution of the North Sea by Oil,
have carved up that sea by longitude and latitude into zones
of state responsibility "Fflor the sole purposes of this
Agreement"; 5 in them the parties have obligations to make
assessments and take measures:
whenever the presence or the prospective presence
of oil polluting the sea within the North Sea
area . . . presents a grave and imminent danger
to the coast or related interests of one or more
Contracting Parties.55
The International Convention for Northwest Atlantic Fisheries
might also be cited in this connection, but the panels of
states responsible for the subareas delineated therein are
only supposed to oversee developments and then to make recom-
mendations to th governments collectively involved as to
the need for ameliorative measures to counteract any ob-
served depletion of the stocks.5 6 And there are undoubtedly
other examples making varying arrangements in accordance with
differing degrees of imminence of harm.
With regard to inclusive resources in general, any
state(s) or international organization(s) aware of circum-
stances endangering the marine or other environments may, of
course, always present.to the state under whose jurisdic-
tion or control the activities concerned are being carried
out, a request for the termination or restriction of such
activities and the elimination or reduction of the threat.
States can take upon themselves the responsibility to back
up such demands by many sorts of political, economic and
other pressures.
53. The Plan itself was adopted on June 10, 1971. It

was described and its purpose is here cited from the Agree-
ment on Great Lakes Water Quality, April 15, 1972, [19721
1 U.S.T. 301, T.I.A.S. No. 7312, Annex 8.
54. Entered into force August 9, 1969, in 9 Int'l Legal
Materials 359, art. 6 (1970).
55. Id., art. 1.
56. Done February 8, 1949, [19501 1 U.S.T. 477, T.I.A.S.
No. 2089, 157 U.N.T.S. 157.
STATE ENVIRONMENTAL RESPONSIBILITY [VOL. 2
B. Injunctive and Other Temporary Relief
At times it seems essential or desirable to avert the
very severe risk of grave danger rather than to wait un-
til an actual threat has materialized. States may seek to
accomplish this through varied channels, drawing on politi-
cal and other pressures for deterrence. When the United
States was contemplating "Cannikin," its third underground
nuclear weapons test on the Aleutian Island of Amchitka,
the Canadian Minister for External Affairs lodged a formal
protest with the U.S. Department of State, and Japanese of-
ficials also expressed concerned opposition. 5 7 These appre-
hensions were supplemented by several unofficial demonstra-
tions by Canadian citizens and environmental groups, in ad-
dition to those of U.S. environmentalists. The blast was
nevertheless carried out. While no surface radiation was
detected and the explosion did not cause the earthquakes
that had been feared by some, it did produce high intensity
shock waves affecting large areas. In view of the magni-
tude of the shock waves registered in Japan, the Japanese
government then sent a formal protest to the U.S.
Another example of reckless or exceedingly risky be-
havior, this time in connection with the use of inclusive
resources, deterrence of which was the object of determined
international efforts, was project "West Ford."5 8 The U.S.
57. On the general subject of the international legal

implications, see Stein, "Cannikin," in International Re-
sponsibility for Environmental Injury, supra note 4. On
the protests see e.g. Kentworthy, "Nixon May Cancel Aleutians
A-Test," N.Y. Times, Sept. 9, 1971, at 1, col. 4; Szulc, "U.S.,
Britain Wary on Security Talks," id., Oct. 2, 1971, at I,
col. 7; Walz, "12 Sail for Amchita- to Fiqht Atom Test," id.,
Oct. 3, 1971, at 14, col. 4; "Gamble in the Aleutians" (eTFt.),
id., Oct. 4, 1971, at 38, col. 2; Kentworthy, "Nixon Author-
izes Atomic Explosion in the Aleutians," id., Oct. 28, 1971,
at 1, col. 4; "Canada Voices Disquiet," iU., Oct. 28, 1971,
at 26, col. 8; Turner, "H-Bombs Tested inthe Aleutians De-
spite Protest," id., Nov. 7, 1971, at 1, col. 8; "Shock Waves
Felt in Japan," id., Nov. 7, 1971, at 64, col. 6.
58. On the-legal issues involved see Weiss, "Project
West Ford: Needles in Space," in International Responsibility
for Environmental Injury, supra note 4. On the protests see
e.g. Finney, "Needle Antennas Stir Space Furor," N.Y. Times,
July 30, 1961, at 48, col. 1; Sullivan, "Needles Orbitinq to
Be Tried Again," id., Feb. 3, 1962, at 5, col. i; Finney,
government made plans to release 20 kilograms of tiny copper

"hairs" or "needles" in outer space to form a belt around the
earth about 15 kilometers wide and 30 kilometers deep , the
objective being to test its feasibility to reflect communi-
cations signals. The prospect of such manipulation of the
environment of nearby space caused international as well as
national scientific groups and individual scientists to air
their very serious concern about potentially adverse effects
upon radio and optical astronomy. The Soviet Union also com-
plained that the needles might interfere with the movement
of spacecraft, but that issue or pseudoissue did not receive
as much attention as the fears of the astronomers and their
supporters. As a result of the many protests, a special
meeting of the President's Scientific Advisory Council was
called to review the project and advise whether the launch-
ing should be stopped, and the PSAC deemed that it would be
a safe undertaking. The first launch of West Ford conse-
quently went ahead a month later, but the dipoles failed to
disperse properly to form the belt; the final attempt took
place two years later. After the success of the last ef-
fort, the U.S.S.R. made its first formal public protest
through the United Nations. Description of subsequent
propaganda maneuvering and countermaneuvering is not ger-
mane here. The point is that in such cases the determining
factor or norm for state responsibility has to be the proba-
bility of risk rather than the wrongfulness of the conduct
in and of itself. Richard Kearney, the U.S. member of the
International Law Commission, made reference to this project
on the part of his country and asked the ILC: "Was there a
question of responsibility there?" 5 9 As Ambassador Kearney
himself gave evidence of fully realizing, the answer from
the perspective of the rational and progressive development
of international environmental law had to be rather obvious.
The above two paragraphs discussed direct efforts to
stop or deter a planned action. It ought to be added that
"New Panel to Screen Space Experiments," id., May 10, 1962,

at 16, col. 4; "Needles Orbited for Radio Relay," id., May
13, 1963, at 1, col. 5; "U.S. Assures World Scientists
Needles Are Harmless," id., May 18, 1963, at 9, col. 7;
"Soviet Again Hits U.S. Needles Test," id., May 21, 1963,
at 3, col. 1; Brewer, "Soviet Is Accusedof Space Secrecy,"
id., June 7, 1963, at 10, col. 3; "More Needles in Space?"
"idit.), id., Sept. 23, 1963, at 28, col. 2.
59. Remarks of Mr. Kearney, [1973] 1 Y.B. Int'l L.
Comm'n 7.
states and other actors often seek also to invoke'the au-
thority of relevant courts and administrative bodies for
temporary injunctive relief in aid of their causes. The
hope is to obtain an official stay of the action either
pending further investigation of its likely consequences
or as an interim measure on the path to a final judgment
disallowing the proposed activity.
In the Amchitka situation, several conservation groups
joined forces to seek an injunction of the tests primarily
on the basis that the U.S. Atomic Energy Agency's impact
statement did not satisfy the requirements of the National
Environmental Policy Act. The U.S. District Court for the
District of Columbia entered summary judgment for the AEC,
but the Court of Appeals for the D.C. Circuit reversed and
remanded. 6 0 After remand, there was a subsidiary contro-
versy over discovery, which was itself the subject of an
interlocutory appeal. 6 1 The District Court subsequently
denied a preliminary injunction, the Court of Appeals de-
nied the environmentalists' motion for summary reversal
and a stay, 6 2 and the case went all the way up to the high-
est court in the land. The U.S. Supreme Court, in a most
rare occurrence, agreed to hear on Saturday morning a plea
against the blast scheduled for that same afternoon. It re-
jected the last-minute appeal by a vote of 4:363 a few min-
utes before the 12:30 deadline, and the 5-megaton warhead
went off on schedule 64 --with the dissenting justices still
insisting that they "would grant the injunction so that the
case can be heard on the merits." 6 5
Despite this landmark case, injunctions are a fairly
routine occurrence in U.S. environmental litigation. The
60. See Committee for Nuclear Responsibility v. Sea-

borg, 463 F.2d 783 (D.C. Cir. 1971).
61. Id. at 788.
62. Td. at 796.
63. -o-mmittee for Nuclear Responsibility v. Schle-
singer, 404 U.S. 917, 92 S.Ct. 242, 30 L. Ed. 2d 191 (1971).
64. See Turner, "H-Bombs 'rested in the Aleutians
Despite Pro--tst," supra note 57.
65. See Mr. Justice Douglas' dissent, 404 U.S. 917;
Justices Brennan and Marshall would also have granted a
temporary restraining order pending plaintiff's filing of
a petition for certiorari and action by the Court on the
petition. 404 U.S. 930.
most notable example from the international point of view oc-
curred in connection with the construction of the Trans-
Alaska Pipeline. In an action by three U.S. conservation
groups with intervention by their Canadian counterparts and
later consolidation with compatible claims of an unincor-
porated association of commercial fishermen, the District
Court (again of D.C.) did enjoin the issuance of certain per-
mits necessary for the construction of the haul roads and the
pipeline itself on grounds that otherwise the environmental
interests "would suffer irreparable injury." 6 6 After fur-
ther hearings, however, the court dissolved its preliminary
injunction, denied a permanent injunction and dismissed the
complaints--which judgment was vacated and remanded, and the
litigation went on. 6 7 There was quite a bit more litigation
before the pipeline got its final approval, but it is im-
portant that construction was at least halted for some months
of further investigation while environmentalists had their
day in court.
International tribunals too have been known to grant
injunctions in environmental cases, but often with question-
able effect. At an early stage of the Fisheries Jurisdic-
tion cases, the International Court of Justice did issue
Or-ers Concerning Interim Measures of Protection which,
among other things, provided that both sides in the two
cases should "each of them ensure that no action of any
kind is taken which might aggravate or extend the dispute
submitted to the Court" and also "each of them ensure that
no action is taken which might prejudice the rights of the
other Party in respect of the carrying.out of whatever de-
cision on the merits the Court may render." 6 8 The 1972
Orders also held that the Republic of Iceland should re-
frain from taking any measures to enforce its purported
new fisheries Regulations against ships registered in the
United Kingdom or the Federal Republic of Germany outside
the agreed 12-mile fisheries zone and that that state
66. Wilderness Soc'y v. Hickel, 325 F. Supp. 422, 424

(D.D.C. 1970). See also Natural Resources Defense Council
v. Morton, 458 F .2d- 2(D.C. Cir. 1972).
67. See Wilderness Soc'y v. Morton, 479 F.2d 842 (D.C.
Cir. 1973)-
68. Fisheries Jurisdiction (United Kingdom v. Ice-
land) and Fisheries Jurisdiction (Federal Republic of Ger-
many v. Iceland), Interim Protection, Orders of 17 August
1972, [1972] I.C.J. Rep. 12, 17 & 30, 35.
should. further refrain from applying any administrative, ju-

dicial or other measures against such ships, their crews or.
other related persons because of their having engaged In
fishing activities between 12 and 50 miles; for their part,
the U.K. and Germany were directed not to take more than
170,000 and 119,000 metric tons of fish respectively from
6
the "Sea Area of Iceland." 9
A year later, having meanwhile decided that it had
jurisdiction to entertain the suitsiO and being aware that
negotiations had taken place between Iceland and the other
states with a view toward reaching interim arrangements pend-
ing final settlement of the disputes, the I.C.J. issued sub-
sequent Orders Concerning Continuance of Interim Measures of
Protection. 7 1 Two judges lodged outright dissents, one of
them placing great stress on the changed scientific and eco-
nomic conditions of the fishstocks themselves, which he felt
gave rise to questions which were serious enough
to warrant inviting the Parties, before the Court
took up any position on the continuance of in-
terim measures, to furnish it with the relevant
information . . . as to the evolution and ex-
ploitation of the fishstocks; 7 2
and another, also voting against the new injunctions, ques-
tioned whether new political circumstances did not neces-
sitate either the revocation or at least modification of
the terms of the earlier orders on grounds that they were
rather obviously ineffective:
The reason is that, as no one can be un-
aware, there have been numerous clashes in the
disputed fishery-zone between Icelandic coast-
guard vessels and trawlers flying the British
or Federal German flag. Some of these inci-
dents, such as collision between two vessels
or the firing of shells by Icelandic coastguard
vessels, were in my view grave enough to war-
rant the exercise by the Court of its right to
modify the terms of its original decision.
69. Id. at 17 & 35.

70. Thrisdiction of Court, Judgments, (1973] I.C.J.
Rep. 3 & 49.
71. Interim Measures, Orders of 12 July 1973, [1973]
I.C.J. Rep. 302 &'313.
72. Dissenting Opinion of Judge Petren, [1973] I.C.J.
Rep. 310. The other is the Dissenting Opinion of Judge
Gros, (1973] I.C.J. Rep. 306.
Furthermore, these incidents . . . consti-

tute so many flagrant violations on either side
of the operative part of the Orders of 17 August
1972. The measures should therefore be reviewed
and others indicated concerning inter alia the
presence of warships. 7 3
In any case, Iceland continued to disregard the injunctions
against it, although a few months after the second set of
orders, Iceland and Great Britain reached an "Interim Agree-
ment in the Fisheries Dispute"7 4 (but such was not the result
of similar discussions with the Federal Republic). Finally,
by 10 votes to 4, the World Court decided against Iceland on
the merits but held that all parties in interest were un-
der mutual obligations to negotiate in good faith for the
equitable solution of their differences. 7 5 Whether and to
what extent the judgment itself will be honored has yet to
be seen.
A second, equally or more unencouraging instance of
international preliminary injunctions in an environmental
controversy occurred in the Nuclear Tests cases. In the
course of the challenges by Australia and New Zealand to
French atmospheric weapons tests over the South Pacific,
the International Court of Justice again felt called upon
to issue Orders Concerning Interim Measures of Protection.
By 8 votes to 6, the Court instructed France to "avoid
nuclear tests causing the deposit of radioactive fall-out"
over Australia and New Zealand pending final decision in
its proceedings.7 6 The orders came down on June 22, 1973,
and less than one month later on July 21 France exploded
another device over its Pacific atoll of Mururoa; the
French government also went ahead with another series of
73. Declaration of Judge Ignacio-Pinto, [1973] I.C.J.

Rep. 304, 305.
74. Done November 13, 1973, in 12 Int'l Legal Mater-
ials 1315 1973). See also Belgium-Iceland: Agreement on
Fishing Within Fifty Mile Limit Off Iceland, done Septem-
ber 7, 1972, in 11 Int'l Legal Materials at 91T1972);
Iceland-Norway: Agreement Concerning Fishing Rights, done
July 10, 1973, in 12 Int'l Legal Materials at 1313 (19M73).
75. Merits, Judgments of 25 July 1974, [1974] I.C.J.
Rep. 3 & 175.
76. Nuclear Tests (Australia v. France) and Nuclear
Tests (New Zealand v. France), Interim Protection, Orders
o 22 June 1973, [19731 I.C.J. Rep. 99, 106 & 135, 142.
See supra TAN 20-23.
tests less than a year later. Subsequently, however, It

will be recalled that various French officials issued uni-
lateral statements of intention to cease atmospheric ex-
plosions and pass onto the stage of underground tests af-
ter the 1974 blasts, so allaying the fears of the two appli-
cants as regards radioactive danger to their people and re-
sources. In light of these declarations, as has been al-
ready indicated above, the I.C.J. chose not to make a declar-
atory judgment on the legality of atmospheric nuclear test-
ing or to render any other judgment in the case. It might
well be, however, that French policy and actions were ulti-
mately influenced by the very fact of the juridical proceed-
ings themselves.
C. Warning and Notification

At the drafting stages of the Declaration on the Human
Environment of the Stockholm Conference, Principles 21 and
22 on state responsibility and liability were accompanied
by a third principle relating to the duty to provide proper
warning to other states. "Draft Principle 20," as origi-
nally proposed by the Working Group on the Declaration, pro-
vided as follows:
Relevant information must be supplied by
States on activities or developments within
their jurisdiction or under their control when-
ever they believe, or have reason to believe,
that such information is needed to avoid the
risk of significant adverse effects on the
environment in areas beyond their national
jurisdiction. 7 7
Some delegations, however, contended that any such consulta-
tion responsibilities were inappropriate for inclusion in
the Declaration on directly opposite grounds: it was con-
tended, on the one hand, that they "were inherent in the ob-
ligations undertaken by Member States in the Charter of the
United Nations," and, on the other, that they "were an ex-
tension of these obligations which would be outside the
8
scope of a declaratory and inspirational instrument."7
77. "Draft Declaration on the Human Environment,"

U.N. Doc. A/CONF.48/4, Annex, para. 20, at 4 (1972). For
discussion see Sohn, "The Stockholm Declaration on the Hu-
man Environme'nt," 14 Harv. Int'l L.J. 423, 496-502 (1973).
78. Sohn, supra note 77, at 497, quoting U.N. Doc.
A/CONF.48/PC.12, at 8 (1971).
And there was much further debate and a whole intervening

spectrum of opinion as to the proper nature and content of
an acceptable compromise.
No solution was reached either before or at the Confer-
ence itself. In Stockholm the recognition of a duty to warn
was effectively blocked by the Brazilian delegation. Brazil
was at the time undertaking feasibility studies for a giant
hydroelectric installation on the Parana River, which even-
tually flows into Argentina becoming the La Plata. Argentina
feared that such alteration in the flow of the river might
cause floods, droughts, water pollution and other injury to
Argentine environmental interests, and that government there-
fore called upon its neighbor to enter into consultations be-
fore going ahead with the plans. Accordingly, Argentina pro-
posed at the Conference that the principle be strengthened by
adding:
This information must also be supplied at the re-
quest of any of the Parties concerned, within ap-
propriate time, and with such data as may be avail-
able and as would enable the above-mentioned Par-
ties to inform and judge by themselves of the
79
nature and probable effects of such activities;
while Brazil, on the contrary, wanted expressly to limit it:
No State is obliged to supply information under
conditions that, in its founded judgment, may
jeopardize its national security, economic de-
velopment or its national efforts to improve
environment.80
The Conference finally avoided a decision on the question by
deciding to refer it to the General Assembly the next fall,
in the hopes that a consensus might emerge by that time.
In the G.A. a few months later, Brazil took the lead in
coming forth with something of a conciliatory proposal. The
new, substantially weakened resolution, which was cospon-
sored by a large number of developing countries and a few
developed countries,, recognized
that co-operation between States in the field
of the environment, including co-operation
towards the implementation of principles 21 and
22 of the Declaration of the United Nations Con-
ference on the Human Environment, will be effec-
tively achieved if official and public knowledge
79. Id. quoting U.N. Doc. A/CONF.48.CRP.5 (1972).

80. Td. quoting U.N. Doc. A/CONF.48/14, at 119 (1972).
is provided of the technical data relating
to the work to be carried out by States
within their national jurisdiction, with a
view to avoiding significant harm that may
occur in the environment of the adjacent
area. 8 1
It then further stipulated that such "technical data" should
be given and received in the "best spirit of co-operation and
good-neighborliness" and without its being used "to delay or
impede the programmes and projects of exploration, exploita-:
tion and development of the natural resources of the States
in whose territories such programmes and projects are car-
ried out.",8 2 It is clearly this last caveat, intended to
stress the paramountcy of economic and social development,
that won the support of the multitudes for General Assembly
Resolution 2995 (XXVII). While on balance according it
their support, however, some countries were quite worried
about the possible implications that might be drawn from the
somewhat feeble character of 2995 as regards the overall con-
cept of state environmental responsibility. They therefore
promoted concurrent passage of G.A. Resolution 2996 (XXVII),
which states flatly that "no resolution adopted at the twen-
ty-seventh session of the General Assembly can affect prin-
ciples 21 and 22 of the Declaration of the United Nations
Conference on the Human Environment." 8 3
Governments soon began to realize, nevertheless, that
the exhortation to provide "technical data" and no more,
as laid down in 2995, was simply not enough from the point
of view of environmental protection. Consequently, the next
year the General Assembly passed a new and stronger resolu-
tion on "Co-operation in the Field of the Environment Con-
cerning Natural Resources Shared by Two or More States."
G.A. Resolution 3129 (XXVIII) specifically considers that
it is necessary to ensure effective coopera-
tion between countries through the establish-
ment of adequate international standards for
the conservation and harmonious exploitation
of natural resources common to two or more
States in the context of the normal relations
existing between them;
81. G.A. Res. 2995, 27 U.N. GAOR Supp. 30, at 42, U.N.
Doc. A/8730 (1972).
82. Id.
83. G--A. Res. 2996, 27 U.N. GAOR Supp. 30, at 42, 43,
U.N. Doc. A/8730 (1972).
and it considers further that

co-operation between countries sharing such
natural resources and interested in their
exploitation must be developed on the basis
of a system of information and prior con-
sultation within the framework of the8 4nor-
mal relations existing between them.
It therefore requests the Governing Council of the United
Nations Environment Programme to report on measures adopted
for the implementation of these two paragraphs and solicits
UNEP and member states to take them fully into account. The
second session of the UNEP Governing Council accordingly re-
quested the Executive Director to prepare a study and make
proposals along-these lines. 8 5 After consulting widely with
governments and international organizations, the Executive
Director proposed in his report, among other things, that
there should be consideration of a draft code of conduct
setting forth general principles and guidelines for the
conduct of states in the conservation and harmonious ex-
ploitation of shared natural resources, 8 6 and the third
Governing Council authorized him to establish an intergov-
ernmental working group to begin the drafting. 8 7 This de-
cision was not reached, however, without a fair amount of
doubt and hesitation, with the roll call vote being 28
votes to 1 with 20 abstentions; it should not be without 88
interest that the single negative vote was cast by Brazil.
84. G.A. Res. 3129, 28 U.N. GAOR Supp. 30, at 48, 49,
U.N. Doc. A/9030 (1973).
85. Report of the Governing Council of the United Na-
tions Environment Programme on Its Second Session, 29 U.N.
GAOR Supp. 25, at 119, Decision 18(11), U.N. Doc. A/9625
(1974). See also id. at 54-64. It is interesting that this
decision waEs in-Ty a vote of 29 in favor to I against and
16 abstentions, and that Brazil cast the only negative vote.
Id. at 61.
-- 86. "Co-operation in the Field of the Environment Con-
cerning Natural Resources Shared by Two or More States: Re-
port of the Executive Director," U.N. Doc. UNEP/GC/44, at 41
(1975).
87. Report of the Governing Council of the United Na-
tions Environment Programme on Its Third Session, U.N. Doc.
UNEP/GC/55, at 124, Decision 44(!11), (1975). See also id.
at 82-86.
88. Id. at 84. See also note 85 supra.
VL
In some cases and with regard to certain problems,
states have very recently begun to try to elaborate upon
and implement, on a multilateral and bilateral basis, these
information and prior consultation responsibilities. The
1974 Principles Concerning Transfrontier Pollution of the
Organization for Economic Co-operation and Development spe-
cify both that countries concerned should exchange "all rele-
vant scientific information and data on transfrontier pollu-
tion" (an advance over merely "technical data" or plain "In-
formation" in the previous formulations) and also that they
should "promptly warn other potentially affected countries
of any substances which may cause any sudden increase in
the level of pollution in areas outside the country of ori-
gin of pollution" (which may be taken to imply a responsi-
bility to analyze available information and present it in a
readily assimilable form). 8 9 The 1975 Canada-U.S. Agreement
on the Exchange of Information on Weather Modification Activ-
ities, for another example, not only tries to elaborate upon
the type of information to be communicated, in what form,
and by and to whom, but also commits the responsible agen-
cies in each country to "consult with a view to developing
compatible reporting formats, and to improving procedures
for the exchange of information." 9 0 In keeping with G.A.
Resolution 3129, the parties additionally "agree to consult
. . . regarding particular weather modification activities
of mutual interest," except in extreme emergencies.9 l But
the manner and procedures for incorporating such prior con-
sultations into the conduct of their normal relations is
not spelled out.
Finally, at the Law of the Sea Conference, the interna-
tional community has been doing some work clarifying and ex-
panding upon evaluation and notification requirements. A
new draft article agreed to at the Geneva session obligates
states which have reasonable grounds for expecting that
planned activities under their jurisdiction or control may
cause substantial pollution of the marine environment both
89. OECD Doc. C(74)224 (21 November 1974), reprinted

in 14 Int'l Legal Materials 242, 246, Titles G & F respec-
tively (1975). Also relevant is Title E on the principle
of information exchange and consultation.
90. Done March 26, 1975, in 14 Int'l Legal Materials
589, art. 3-(1975).
91. Id., the quotation being from art. 5 and the emer-
gency exempt-ion found in art. 6.
to "assess the potential effects of these activities" and to

"communicate reports" thereof. 9 2 At first its value as a
means for the transfer of information and issuance of en-
vironmental warning may seem somewhat wanting, since states
are merely to communicate the reports "to UNEP or any other
competent international or regional organizations, which
should make them available to all States." Yet, this draft
article on environmental assessment must be interpreted in
light of an earlier draft article on global and regional co-
operation negotiated at the Caracas session of LOS-Ill, which
provides that a state which becomes aware of cases in which
the marine environment is in imminent danger of being dam-
aged or has been damaged by pollution "shall immediately
notify other States it deems likely to be affected by such
damage, as well as the competent international organiza-
tions." 9 3 Taken together, the combination of responsibili-
ties is not inconsequential.
Since the present paper is primarily an introduction to
a new and important area of international law, this is not
the place to attempt an extensive analysis of trends in
legal and organizational development. The main point to be
gleaned for present purposes remains that, slowly and tenta-
tively, there is developing a legal norm of environmental
warning and notification the violation of which may entail
international responsibility on the part of states.
V. Reparation or Compensation for Environmental Injury
When environmental deprivations have not been prevented

or potential hazards have not been effectively deterred,
there then arises the problem of reparation of the harm and

ment, supra note 42, art. 9, draft article on environmental
assessment.
ment, U.N. Doc. A/CONF.62/C.3/L.15, art. 5 (1974), reprinted
in 3 Third U.N.C.L.O.S.: Official Records, supra note 46, at
260. It is worth noting in passing that warning and con-
sultation provisions have already been written into the Lon-
don Ocean Dumping Convention, supra note 26, art. 5, and in-
to the regional Agreement Concerning Pollution of the North
Sea by Oil, supra note 54, art. 6.
compensation for the damages that have occurred. It is in

connection with this subgoal of legal sanctioning processes
that the reference to concern over "international law re-
garding liability and compensation for the victims of pollu-
tion and other environmental damage" in Principle 22 of the
Stockholm Declaration becomes of direct concern here.94 As
has been explained by other writers at length, there are
actually three relevant subsidiary aspects to the problem
of what is to be done after the fact of injury: "restora-
tion" of relationships between or among the parties involved,
"rehabilitation" or immediate reparation of the values de-
stroyed, and "reconstruction" or long-term avoidance of un-
authorized manipulation of the basic value relations at is-
sue. 9 5 Since international environmental law is still in
such a relatively primitive stage of development, it is not
often possible to distinguish among these aspects in con-
sidering existing precedents. The varying purposes that
different liability and compensation regimes can be made to
serve should nevertheless be kept in mind throughout the
following discussion. I
The basic question here is the standard of liability
to be applied. Whether the basis of liability is fault or
negligence, on the one hand, or whether there is strict or
absolute liability, on the other, may obviously make a
great deal of difference in their respective rights and
value positions as far as the parties themselves are con-
cerned. And it is highly important from the perspective
of the protection and preservation of the environment with-
out further degradation that liability follow upon demon-
stration merely of causality of injury, rather than requir-
ing reparation or compensation only upon proof of intention
to harm or some other wrongfulness of behavior. A second
fundamental and related question is who is to be held li-
able. Assuming liability attaches to the type of conduct
involved, it is clear that a state is liable for damage
attributable or imputable to it. When damage has been
caused by its national or some activity under its jurisdic-
tion or control, however, a state may choose in the first
instance to provide appropriate recourse directly against
the natural or juridical person(s) involved; but following
94. Supra TAN 7.

95. See McDougal & Feliciano, supra note 51, at 287-
96; McDougaT ,Lasswell & Vlasic, Law and Public Order in
Space 404-06 et seq. (1963).
exhaustion of any such local remedies, the state that is it-

self injured or is the national state of a damaged party
still has the right to present a claim to the responsible
state, and the latter state would then be answerable for any
compensation found to be due (although it would probably
then seek to extract payment from the particular relevant
actor or actors). Under some circumstances, nevertheless,
reciprocally or otherwise, states may wish to assume liabil-
ity in the first instance for certain activities of their
nationals. Further complications can arise in connection with
both of these questions. For example, designation of liabil-
ity and assessment of the nature and extent of damages are
likely to be much more difficult as concerns injury to inclu-
sive or shared rather than exclusive or nonshared resources.
And on the matter of the repository of the liability, situ-
ations are not at all unforeseeable where there will be
joint liability and perhaps indemnity from one responsible
6
state or other party to another.9
International law on many of these issues is, to repeat,
not at all clear. Certain consistent and generalizable pat-
terns of reparation and compensation requirements can, never-
theless, be observed in the contemporary development of in-
ternational environmental law. I shall try to discuss the
standard of strict or absolute liability both as it is
emerging under general circumstances and as it has been ap-
plied to certain ultrahazardous activities. Then, since the
possibility and feasibility of insurance underlies so much
of the policy consideration in this area, some description
and commentary will be added about the nature and functions
of various environment-related compensation funds.
A. Emergence of Strict Liability for Environmental

Injury
"Strict liability" is liability without fault, and it
may be said to exist when compensation is due from one actor
to another for injuries caused despite compliance with any
particular standards of care. A number of variations on the
theme of strict liability have evolved in common law juris-
dictions (e.g. nuisance, ultrahazardous activities, tres-
pass and borderline doctrines such as res ipsa loquitur),
96. For a good summary treatment of principles and

problems of international responsibility of states and in-
ternational claims, see Bishop, International Law 742-899
(3d ed. 1962).
but for present purposes a general comprehension of the gen-

eric term should suffice. It cannot be said that there are
no defenses to strict liability since, depending on the de-
gree of strictness involved, it may be subject to the class-
ic exonerations for tortious acts: force majeure, acts of
God or interventions of other third a--i-es. Consequently,
while some writers use the terms "strict" and "absolute"
liability interchangeably, others prefer to reserve the lat-
ter for conditions under which very few or no exculpations
apply; usage here will attempt somewhat to follow that gen-
eral distinction. 9 7 But all of these are just words, none
of which is very precise, and it must be recognized that
what goes on in any given case is a balancing of multiple
and multidimensional interests rather than merely pinpoint-
ing along some nonexistent linear theoretical projection.
As Professor L.F.E. Goldie has argued in several arti-
cles on liability for pollution, "the Trail Smelter, Corfu
Channel and Lac Lanoux cases clearly point to the emergence
of strict liability as a principle of public international
law." 9 8 Others who have analyzed these very few precedents
in the field of international environmental law usually
tend to agree with him that there is an evolving norm of
strict liability for environmentally Injury modelled on the
century-old rule adumbrated in the famous English case of
Rylands v. Fletcher. 9 9 In that case, the defendants, who
were proprietors of a mill, had built a large reservoir on
their own land for their own business purposes. It was per-
fectly lawful for them to do this, and they employed for the
project a competent engineer and competent contractors. Un-
fortunately, however, due to the unknown and unsuspected
presence of an old and abandoned mine shaft, water leaked
out of the reservoir and flooded the tunnels in the mine
operated by the plaintiff on his own adjoining property.
The plaintiff therefore sued to recover the damages caused
by the flooding of his mine, and the House of Lords found
97. See generally Goldie, "Liability for Damage and

the Progressive Development of International Law," 14 Int'l
& Comp. L.Q. 1189 (1965); Jenks, The Prospects of Interna-
tional Adjudication 514-4 6T16).
98. Goldle, "International Principles of Responsibil-
ity for Pollution," 9 Colum. J. Transnat'l L. 283, 306 (1970).
99. L.R. I H.L. 330 (1868), extracted in Shulman &
James, Cases and Materials on the Law of Torts 61 (2d ed.
(1952).
1975] YALE STUDIES IN WORLD PUBLIC ORDER-
in his favor. The theory of the case was that the mill
owners had put their land to a "nonnatural use" by col-
lecting on it an unusual amount of water and that they
were consequently liable for damage caused to someone
else's property; as the Lord Chancellor observed, "that
which the Defendants were doing they were doing at their
own peril."1 0 0
Parallels in the Trail Smelter 10' situation are not
difficult to find. That controversy, it will be remem-
bered, involved damage occurring or having occurred in
the territory of the United States and alleged to be
caused by an agency situated in Canada. More specifi-
cally, the Consolidated Mining and Smelting Co. of Canada
Ltd. was operating a smelter at Trail, British Columbia,
which was one of the largest and best-equipped such plants
on the North American continent. Due at least in part to
certain characteristics of river and air currents in the
valley shared by the two countries, the fumes were claimed
to be causing air pollution and damage to crops in the in-
creasingly-populated farming areas around Northport, a
town in the State of Washington. The arbitral tribunal
set up to resolve the matter found that the Dominion of
Canada was responsible at international law for the con-
duct of the mining company in Canadian territory, that the
damage south of the border was Indeed caused by the opera-
tion of the Canadian smelter and consequently that indemnity
was due from Canada to the United States in compensation for
the injury. It based its decision on the much-quoted ob-
servation that "no State has the right to use or permit the
use of its territory in such a manner as to cause injury by
100. Shulman & James, supra note 99, at 70. And as

Lord Cranworth added:
If a person brings, or accumulates, on his
land anything which, if it should escape,
may cause damage to his neighbor, he does
so at his peril. If it does escape, and
cause damage, he is responsible, however
careful he may have been, and whatever pre-
cautions he may have taken to prevent the
damage.
Id. at 71. See also Bohlen, "The Rule in Rylands v. Fletch-
er," 59 U. Pa. L. Rev. 298 (1911).
101. (United States v. Canada), 3 U.N.R.I.A.A. 1911
& 1938 (1938 & 1941), reprinted in 33 AJIL 182 (1939) & 35
AJIL 684 (1941).
fumes in or to the territory of another or the properties
or persons therein . . .,,102
An even clearer illustration of the application of
strict liability in the context of environmental injury Is
the Gut Daml 0 3 arbitration between the same two countries.
The facts may be summarized in the following way: In 1874
the Canadian Chief Engineer of Public Works proposed to his
government that it construct a dam between Adams Island in
Canadian territory and Les Galops belonging to the U.S. for
the purpose of improving navigation in the St. Lawrence
River. After many investigations and reports and formal
approval by an act of the U.S. Congress, the Canadian gov-
ernment proceeded to construct the dam in 1903; experience
soon demonstrated that it was too low to serve the desired
ends and, again with explicit U.S. permission, Canada In-
creased the height of the dam a year later. Between 1904
and 1951 several manmade changes affected the flow of water
in the Great Lakes-St. Lawrence River basin, and, while the
dam itself was not altered in any way, the level of the
water in the river and nearby Lake Ontario increased. In
1951-52 the level of waters reached unprecedented heights
which, in combination with storms and other natural phe-
nomena, resulted in extensive flooding and erosion damage
on both the north and south shores of all the lakes. In
1953, the government of Canada removed Its dam as part of
the construction of the St. Lawrence Seaway, but the prob-
lem of U.S. claims for damages allegedly resulting from the
presence of Gut Dam still festered for some years. The
Lake Ontario Claims Tribunal set up to resolve these matters,
after initially determining that Canada had an obligation to
all citizens of the U.S. and not just the owner of Les
Galops as regarded the construction of the dam and that
such responsibility was not limited in time to some initial
testing period, observed that "the only issues which remain
for its consideration are the questions of whether Gut Dam
caused the damage for which claims have been filed and the
quantum of such damages.''10 4 The arbitral tribunal was, in
102. Id. at 1965.

103. se--e "Canada-United States Settlement of Gut Dam
Claims," Sep-t-ember 22, 1968, Report of the Agent of the
United States before the Lake Ontario Claims Tribunal, in
8 Int'l Legal Materials 118 (1969).
104. Decision of February 12, 1968, quoted in id. at
138, 140.
other words, clearly adopting a standard of strict liability,

since it was not interested in hearing any arguments for or
against fault or negligence in planning and construction or
of whether Canada knew or ought to have known what injuries
might result. Following upon this holding by the Claims Tri-
bunal, the two governments concerned reached a negotiated
settlement of a lump-sum payment from Canada to the U.S.
"in full and final satisfaction of all claims of United States
nationals for alleged damage caused by Gut Dam," 10 5 which was
6
then approved by the Tribunal.10
It is worth mentioning in passing that these two neigh-
bors are at It again--this time with the parties reversed.
Plans are underway for a $400 million irrigation project in
North Dakota, which Canadians maintain, among other things,
will badly pollute the Souris River in Manitoba.1 0 7 The gov-
ernment of Canada has tried to invoke the provision of the
1909 Boundary Waters Treaty that such waters "shall not be
polluted on either side to the injury of health or property
on the other" 1 08 in an attempt to stop the project. Failing
that, however, it claims that the U.S. should be strictly
liable for any resultant damage north of the border. Back-
ers of the Garrison Diversion, as the project is known, con-
cede that the river will be polluted or at least "degraded,"
but they insist the effects will be relatively slight. 10 9
On June 23, 1973, the Canadian Embassy in Washington trans-
mitted to the U.S. Department of State another in a series
of diplomatic notes protesting against the Garrison Diver-
sion Unit. 1 10 This problem of the Souris and other rivers
is only one of several environinental disputes simmering these
105. Agreement on Settlement of Claims Relating to Gut

Dam, November 18, 1968, [1968] 6 U.S.T. 7863, T.I.A.S. No.
6624.
106. Communication of September 27, 1968, quoted in 8
Int'l Legal Materials 140-42 (1969).
107. See Borders, "Manitoba Fears River Plan in U.S.,"
N.Y. Times, Aug. 25, 1974, 1, at 11, col. 1.
" lO9. January 11, 1909, 36 Stat. 2448 (1909-11), T.S.
No. 548, art. 4.
109. Borders, supra note 102.
110. "GarrisonD-ilve-rsion Unit," Canada Department of
External Affairs Press Release No. 48 (June 24, 1975). The
Note cites previous diplomatic correspondence and contin-
uing consultation going back to 1969.
V
days in North America,1 1 1 and environmental problems are

not necessarily any more solicitous of national boundaries
elsewhere.
Turning now to the other two cases cited at the out-
set of this section, Corfu Channel 1 12 and Lac Lanoux,ll 3
the existence of strict liabiliyis not difficult to main-
tain. The former case involved a finding by the Interna-
tional Court of Justice that the People's Republic of Al-
bania was liable for the consequences when British war-
ships struck mines in the Albanian waters of the Corfu
Channel. More exactly, the conclusion of the Court was
"that Albania is responsible under international law for
the explosions which occurred . . . and for the damage and
loss of human life which resulted from them, and that there
is a duty upon Albania to pay compensation to the United
Kingdom."11l4 The liability stemmed directly from the pres-
ence of the mines and the failure to warn the approaching
vessels, with no proof required of any malevolence, neglect
or other wrongfulness on the part of Albania. By contrast,
the Lac Lanoux arbitration was a suit by Spain to block,
before it was undertaken, a hydroelectric project by France
using the waters of the lake. It was decided that the pro-
posed project would not be in violation of France's obli-
gation under treaties with its neighbor or under general
international law, since it was found to represent a rea-
sonable utilization of the water resources that should not
prove injurious to Spanish interests. The tribunal, never-
theless, did add that, if the works did in fact cause pol-
lution or other actual damage, "Spain could then have
claimed that her rights had been impaired." 11 5
Besides these few juridical requirements, there have
been certain other instances of voluntary compensation for
environmental injury by governments or other actors with-
out proof of fault, but their precedential value is ques-
tionable and limited. A much-cited example is the ex
gratia payments by the United States government to t-he
IlII. For mention of some others see Borders, supra

note 107.
112. [1949] I.C.J. Rep. 4.
113. (Spain v. France), 12 U.N.R.I.A.A. 281 (1957),
digested in 53 AJIL 156 (1959).
114. [i943--T.C.J. Rep. 23.
115. 12 U.N.R.I.A.A. 303.
Japanese government as compensation for Japanese nationals
who sustained personal and property damage as a result of
the nuclear tests in the Marshall Islands in 1954. Al-
though the tests themselves may be considered lawful meas-
ures for security, due to a series of miscalculations or
for some other reason, a number of Marshallese, Japanese
and Americans were injured by the test of March I of that
year and the series as a whole somewhat disrupted activi-
ties of the Japanese fishing industry.1l 6 The U.S. ten-
dered two million dollars to Japan "for purposes of com-
pensation for the injuries or damages sustained" and "in
full settlement of any and all claims against the United
States or its agents, nationals or juridical entities" as
a result of the tests, but did so "without reference to
the question of legal liability."11 7 And to take a more
recent example on the part of a private actor, the Atlantic
Richfield Company, which operated the refinery at Ferndale,
Washington that was the site of the 1972 Cherry Point oil
spill, paid an initial cleanup bill of $19,000 submitted by
the municipality of Surrey for its activities. ARCO later
agreed to pay another $11,606.50 to be transmitted by the
U.S. to the Canadian government for its costs incurred in
connection with cleanup operations, but would not consent
to reimburse an additional item of $60 designated "bird
loss (30 birds at $2 a bird)." Again this was done, "with-
out admitting any liability in the matter and without preju-
8
dice to . . . rights and legal position."ll
B. Imposition of Absolute Liability for Ultra-

hazardous Activities
Many systems of municipal law contain rules creating
"absolute" or exceedingly strict liability for failure to
116. See McDougal & Schlei, "The Hydrogen Bomb Tests

In Perspective: Lawful Measures for Security," in McDougal
& Associates, Studies in World Public Order 763 (1960).
117. Agreement on Personal and Property Damage Claims,
January 4, 1955, [1955] 1 U.S.T. 1, T.I.A.S. No. 3160.
118. The terms and conditions were specified in a
Note from the U.S. Department of State to the Canadian gov-
ernment on November 13, 1974. On reimbursement for the
cleanups, see "ARCO Pays $19,000 Cleanup Bill" and "Oil
Spill Bilii- Will Hit $26,000," supra note 45.
control operations which necessarily create a serious or un-

usual risk of harm to others. Such designations are, to re-
peat, only words, and it is essential to look at the varied
factors and policies behind them. These rules are based, at
least in part, upon principles of loss distribution and li-
ability imposed upon the effective (insured or self-insured)
defendant. Ian Brownlie reports that it is the general opin-
ion that international law at present lacks such a doctrine,
although Wilfred Jenks has proposed that the law be de-
veloped on the basis of a Declaration of Legal Principles
Governing Ultrahazardous Activities Generally, which would
be adopted by the U.N. General Assembly.'1 9 But he also ac-
knowledges that caution is required in accepting the state-
ment that existing law lacks such a principle, "because the
operation of the normal principles of state responsibility
may create liability for a great variety of dangerous activi-
ties on state territory or emanating from it.,,1 2 0 And in any
event, absolute liability has at least been recognized as re-
gards certain exceptionally risky or hazardous activities in
several multilateral conventions. Of particular interest for
present purposes is the increasing imposition of absolute li-
ability in respect of nuclear installations and the operation
of nuclear ships, in respect of damage caused by space ob-
jects, and as concerns certain types of oil pollution inci-
dents.
Dealing with a relatively new and obviously dangerous
enterprise, the drafters of the 1962 Brussels Convention on
the Liability of Operators of Nuclear Ships were quite
straightforward:
The operator of a nuclear ship shall be ab-
solutely liable for any nuclear damage upon
proof that such damage has been caused by a nu-
clear incident involving the nuclear fuel of,
or radioactive products or waste produced in,
21
such ship. 1
The only narrow exculpation allowed is for intentional wrong
on the part of the injured party:
119. Brownle, supra note 2, at 463. See also Jenks,

"Liability for Ultra-Hazardous Activities," TT7 Recuell des
Cours 99 at 196 (1966); Kelson, "State Responsibility and
the Abnormally Dangerous Activity," 13 Harv. J. Int'l L.
197 (1972).
120. Id.
121. Ma-y 25, 1962, in 57 AJIL 268, art. 2 (1963).
If the operator proves that the nuclear dam-

age resulted wholly or partially from an act or
omission done with intent to cause damage by the
individual who suffered the damage, the competent
courts may exonerate the operator wholly or par-
12 2
tially from his liability to such individual.
The operator may have an independent right of recourse
against some other party, but this basic liability is cer-
tainly strict enough to deserve its appellation of "ab-
solute"; the extent of the liability in respect of any one
nuclear incident is, however, limited to approximately $100
million. 12 3
The 1963 Vienna Convention on Civil Liability for Nu-
clear Damage was equally succinct: "The liability of the
operator [of a nuclear installation] for nuclear damage
under this Convention shall be absolute"12 4 --although its
exculpatory clause is slightly broader, allowing the com-
petent court if its law so provides to relieve the oper-
ator wholly or partly if he proves that the nuclear damage
resulted "either from the gross negligence of the person
suffering the damage or from an act or omission of such
person done with intent to cause damage"; 12 5 the Vienna
Convention allows states to set limits of not less than $5
million for any one nuclear incident.12 6 And the above
are but two of four early conventions in the field of nu-
clear liability, 12 7 the others being the 1960 Paris Con-
122. Id.
123. T-. art. 3. The limit is set at 1500 million
francs. See-hendelsohn, "The Value of the Poincare Gold
Franc in 0L--itation of Liability Conventions," 5 J. Mari-
time L. & Com. 125 (1973).
124. Opened for signature May 21, 1963,'in 2 Int'l
Legal Materials 727, art. (1963).
125. Id.
126. Id.
127. Onthis subject see generally Cigoj, "Interna-
tional Regulation of Civil Liability for Nuclear Risk," 14
Int'l & Comp. L.Q. 809 (1965); Hardy, "The Liability of
Operators of Nuclear Ships," 12 Int'l & Comp. L.Q. 778
(1963) and his "Nuclear Liability: The General Principles
of Law and Further Proposals," 36 Brit. Y.B. Int'l L. 223
(1960); Konz, "The 1962 Brussels Convention on the Li-
ability of Operators of Nuclear Ships," 57 AJIL 10 (1963).
vention on Third Party Liability in the Field of Nuclear

Energy 1 2 8 and the 1963 Convention Supplementary to this
Paris (OECD) Convention. 1 2 9 As what is of direct in-
terest in the present context Is the strictness of the
standard of liability specified, the precise mechanics of
these agreements need not be explored here. It is, never-
theless, worth noting that, in keeping with their primary
concern being the risk inherent in the activities them-
selves involved, these international conventions treat all
nuclear operators--whether government agencies or private
corporations--on a similar basis. Finally, as concerns
maritime carriage of nuclear material, in order to ensure
that the operator of a nuclear installation will be exclu-
sively liable for damage caused by a nuclear incident, the
Vienna and Paris Conventions have been complemented by a
fifth agreement: the 1971 'IMCO Convention Relating to
Civil Liability in the Field of Maritime Carriage of Nu-
clear Material exonerates any and all other persons. 13 0
Another area for which there has been designation of
liability so strict as to verge on being absolute is the
exploration and exploitation of outer space. The various
expressions of world community expectations In this realm
have already been recorded, and that discussion does not
need repetition. The essential point to note is that,
while the 1967 Outer Space Treaty states only most gener-
ally and summarily that a launching state "shall bear in-
ternational responsibility" and
is Internationally liable for damage to
another State Party to the Treaty or to
its natural or juridical persons by such
object or Its component parts on the Earth,
in air space or In outer space, including
the moon and other celestial bodies,1 31
128. Done July 29, 1960, in 8 Europ. Y.B. 202 (1960).

129. Convention Supplementary to the (OEEC) Paris Con-
vention of 1960, January 30, 1963, in 2 Int'l Legal Mater-
ials 685 (1963).
130. Done December 17, 1971, in 1i Int'l Legal Mater-
ials 277 (197-) -.
131. Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, Including
the Moon and Other Celestial Bodies, done January 27, 1967,
[1967] 3 U.S.T. 2410, T.I.A.S. No. 631T7-,610 U.N.T.S. 205,
art. 7.
there has been some further clarification of the nature of

the liability. The 1971 Convention on International Li-
ability for Damage Caused by Space Objects expressly pro-
vides that a launching state "shall be absolutely liable to
pay compensation for damage caused by its space object on
the surface of the earth or to aircraft in flight."l32
There may be exoneration from this absolute liability in ac-
cordance with the broader standard, i.e. if the state re'-
sponsible for the launch establishest-hat "the damage has
resulted either wholly or partially from gross negligence
or from an act or omission done with intent to cause damage
on the part of a claimant State or of natural or juridical
persons it represents," but no exoneration whatsoever is to
be granted in cases where the damage has resulted from
activities conducted by a launching state "which are not in
conformity with international law including, in particular,
the Charter of the United Nations and the Treaty on Princi-
ples Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celes-
tial Bodies."1 3 3 By contrast, where two ultrahazardous
activities or in this instance space expeditions clash, in
other words where one space object causes injury to another
or persons or property on board, then a fault standard is to
be reinstated and the launching state "shall be liable only
if the damage is due to its fault or the fault of persons
1 4
for whom it is responsible." 3
Finally, as the potential hazards of oil spills and
other catastrophes are increasing almost exponentially, more
and more strict liability may be finding a place in the
legislative regime of the law of the sea as well. It has
already been mentioned in passing that liability under the
Canadian Arctic Waters Pollution Prevention Act "is absolute
and does not depend upon proof of fault or negligence" (with
certain relatively minor exceptions).1 35 There is, in addi-
tion, some indication of movement multilaterally toward such
a standard. During the negotiations of the 1969 IMCO Inter-
national Convention on Civil Liability for Oil Pollution
Damage,13 6 there was considerable debate as to whether the
132.
Done March 29, 1972, T.I.A.S. No. 7762, art. 2.
133. Id. art. 4.
134. Id. art. 3.
135. Supra note 8, para. 7. See TAN 10-11 supra.
136. Done November 29, 1969, in9 Int'l Lega- Mater-
ials 45 (19;9-.
applicable standard should be fault or strict liability. 1 37

Even after the Torrey Canyon disaster, there was substan-
tial although diminishing support for a fault basis. But
after much deliberation, by the time of the Brussels Con-
ference which concluded this IMCO "Private Law" Convention,
the tide of international opinion had clearly shifted to
favor a rather strict standard. The resultant liability
provision is worth quoting at length, to give an overall
idea of how such requirements are put together:
1. Except as provided for in paragraphs 2 and 3
of this Article, the owner of a ship at the time
of an incident, or where the incident consists
of a series of occurrences at the time of the
first such occurrence, shall be liable for any
pollution damage caused by oil which has escaped
or been discharged from the ship as a result of
the incident.
2. No liability for pollution damage shall at-
tach to the owner if he proves that the damage:
(a) resulted from an act of war, hostili-
ties, civil war, insurrection or a
natural phenomenon of an exceptional,
inevitable and irresistible character,
or
(b) was wholly caused by an act or omis-
sion done with intent to cause damage
by a third party, or
(c) was wholly caused by the negligence or
other wrongful act of any Government
or other authority responsible for the
maintenance of lights or other naviga-
tional aids in the exercise of that
function.
137. See Healy, "The CMI and IMCO Draft Conventions on

Civil LiabilT-y for Oil Pollution," 1 J. Maritime L. & Com.
93, 93-98 (1969); Goldie, supra note 89, at 314-17. See
also Avins, "Absolute Liability for Oil Spillage," 38-
Brooklyn L. Rev. 359 (1970); Bergman, "No Fault Liability
for Oil Pollution Damage," 5 J. Maritime L. & Com. 1 (1973).
See generally Dowd, "Further Comment on the Civil Liability
and Compensation Fund Conventions," 4 J. Maritime L. & Com.
525 (1973).
3. If the owner proves that the pollution damage

resulted wholly or partially either from an act
or omission done with intent to cause damage by
the person who suffered the damage or from the
negligence of that person, the owner may be ex-
onerated wholly or partially from his liabil-
8
ity to such person.13
This is obviously not "absolute" liability, being not nearly
as strict as the nuclear or space formulations; but, even
without the "wholly" restriction in paragraph 2, it could
still be argued to be a bit stricter than most traditionally
allowable defenses under international maritime law. The
trend of development by which it was reached is, of course,
also significant. Moreover, whatever its precise categor-
ization, this convention is also notable for beino backed
up by supplementary arrangements setting up compensation
funds for oil pollution damage.
C. International Environmental Compensation Funds

The Brussels Conference which adopted the International
Convention on Civil Liability for Oil Pollution Damage also
passed a Resolution on Establishment of an International
Qompensation Fund for Oil Pollution Damage, which recom-
mended early establishment of such an insurance fund found-
ed on two basic principles:
1. Victims should be fully and adequately com-
pensated under a system based upon the prin-
ciple of strict liability.
2. The fund should in principle relieve the ship-
owner of the additional financial burden im-
posed by the present ["Private Law"] Conven-
tion.139
Accordingly, at another IMCO Conference in Brussels two

years later, a new agreement was concluded toward these
ends. Although its preamble states that the 1971 Interna-
tional Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage 14 0 is to be
13B. Supra note 136, art. 3.

139. In 9 Int'l Legal Materials 66, 67 (1970).
140. Done December 18, 1971, in 11 Int'l Legal Mater-
ials 284 (1972). For analysis of the working arrangements
invo-1ved, see Hunter, "The Proposed International Compensa-
tion Fund for Oil Pollution Damage," 4 J. Maritime L. & Com.
117 (1972).
"supplementary to" the earlier provisions, it is only some-

what so. On the one hand, it does raise the amount of com-
pensation available from the $14 million limit of the IMCO
"Private Law" Convention to about $34 million.1 4 1 On the
other hand, however, it still does not expand coverage to
pollutants other than oil, nor does it encompass damage out-
side the "territory including territorial sea" of the par-
ties. 14 2 As far as procedure is concerned, if the Fund Con-
vention comes into force and its Oil Pollution Fund is cre-
ated--which has not yet happened--contributions in respect
of each state party are to be paid in by the petroleum in-
dustry on the basis of tons of oil received in ports or
terminal installations.1 4 3 Actions for compensation or in-
demnity will be able to be brought against the Fund in the
national courts of the state or states in which the pollu-
tion damage has been caused or deterrence measures have been
taken to prevent or minimize damage.1 4 4
At the time of this writing, the Oil Pollution Liabil-
ity Convention has just come into force while the supple-
mentary Fund Convention, to repeat, has not yet. In the
meantime, however, the provisions of the Tanker Owners
Voluntary Agreement concerning Liability for Oil Pollu-
tion1 4 5 and the Contract Regarding an Interim Supplement to
Tanker Liability for Oil Pollution,1 4 6 known respectively
141. Id. The limit is set at 450 million francs. On

the problem'-of conversion rates, see Mendelsohn, supra note
123.
142. See Fund Convention art. 3.
143. Id. art. 10.
144. Id. art. 7, incorporating by reference art. 9 of
the Liabilil-y Convention, supra note 136.
145. January 7, 1969, -in 8 Int'l Legal Materials 497
(1969). At present, the owners of over 99% of the Western
industrialized world's tanker tonnage are parties. Booklet
entitled TOVALOP 4 (Int'l Tanker Owners Pollution Federa-
tion Ltd.,reprnt 1973).
146. January 14, 1971, in 10 Intl] Legal Materials
137 (1971). The receivers of over 90% of the world's car-
goes of crude and fuel oil are said to be parties to the
agreement. Becker, "A Short Cruise on the Good Ships
TOVALOP and CRISTAL," 5 J. Maritime L. & Commerce 609, 614
(1974).
as TOVALOP and CRISTAL, are applicable. 14 7 TOVALOP, as its

name indicates, is a contract among the tanker owners to the
effect that, "[ilf a discharge of Oil occurs from a Parti-
cipating Tanker through the negligence of that Tanker (and
regardless of the degree of fault)" and in addition "if the
Oil causes Damage by Pollution to Coast Lines within the
jurisdiction of a Government or creates a grave and immi-
nent danger of Damage by Pollution thereto," then the tanker
owner is obliged to remove the oil or to reimburse the re-
moval costs incurred by the government of the coastal
state. 14 8 Maximum liability in any one incident is limited
to the lesser of $100 per gross ton of the tanker or $10
million total9. Although it does offer something by way
of reparation, TOVALOP has certain readily apparent disad-
vantages, such as requiring proof of negligence, running in
favor only of governments and applying only to oil removal
costs and not to other measures of deterrence of or compen-
sation for damage.
The other agreement, CRISTAL, is an oil company attempt
to supplement the compensation provisions of the "Private
Law" Convention and TOVALOP pending entry into force of the
Fund Convention. It is a contract among the companies to
create a fund out of which public or private persons can be
compensated for pollution damage up to $30 million per in-
cident. 1 5 0 The Oil Companies Institute for Marine Pollution
Compensation Ltd., a Bermuda entity organized to administer
the fund of CRISTAL, is liable only in cases where liability
arises under the terms of TOVALOP or the Liability Conven-
tion. 15 1 It has been said that CRISTAL is a legitimate at-
tempt of oil companies to forestall a multiplicity of na-
tional and local liability legislation for oil pollution
147. TOVALOP and CRISTAL became effective on October

6, 1969 and April 1, 1971 respectively. When the former
came into operation, at least 50% of the tanker tonnage of
the world had become parties. TOVALOP, supra note 145, at
4. And the latter required Oil Companies receiving over
50% of the world's seaborne crude oil and fuel oil becom-
ing signatories in order to come into effect. CRISTAL,
supra note 146, clause Ill(A).
148. Supra note 145, art. 4.
149. Id. art. 6.
150. u-pra note 146, art. 4.
151. Id.
STATE ENVIRONMENTAL RESPONSIBILITY .[VOL. 2
damage until a suitable international regime comes into
force.15 2 It also represents an attempt at industry-wide
self-insurance arrangements.
The oil companies are not concerned with their li-
ability solely as regards tanker ownership and operation.
In view of the growing impetus toward exploration and ex-
ploitation of the resources of the continental shelf and
the seabed, the same basic group of corporations felt
called upon in late 1974 to conclude an Offshore Pollution
Liability Agreement ("OPOL").1 5 3 This new contract is not
restricted to negligence and does provide for compensation
to private persons. Its main operative paragraph on reme-
dial measures, reimbursement and compensation for claims
states as follows:
If a Discharge of Oil occurs from a Designated
Offshore Facility, and if, as a result, any
State or States take Remedial Measures and/or
any Person sustains Pollution Damage, then the
Party hereto who was the Operator of said
Designated Offshore Facility at the time of
the Discharge of Oil shall reimburse the cost
of said Remedial Measures and pay compensation
for said Pollution Damage up to an overall maxi-
mum of U.S. $16,000,000 per Incident . . .154
Exceptions are allowed for damage which resulted from acts
of war or other hostilities, was wholly caused by an act or
omission done with intent to cause damage by a third party,
was wholly caused by the negligence or other wrongful act
of any state or other licensing authority, or resulted from
an act or omission done with intent to cause damage or from
negligence of the claimant 1 55--i.e. fairly standard strict
liability exonerations. The sigatories formed under the
laws of England the Offshore Pollution Liability Associ-
ation Ltd. for the purpose of administering this contract
and certain other functions. 1 56
The above examples all deal with internationally and
transnationally organized environmental compensation funds.
152. Dowd, supra note 137, at 541.

153. Done September 4, 1974, in 13 Int'l Legal Mater-
ials 1409 (19-7-4).
154. Id. Clause IV(A).
155. Id. Clause IV(B).
156. -d. Clause iI. The Rules of the Association ap-
pear in 14 Tnt'l Legal Materials 147 (1975).
1975] YALE*STUDIES IN WORLD PUBLIC ORDER
Funds created in pursuance of national legislation may also

have international significance, of which a noteworthy ex-
ample is that established under the U.S. Trans-Alaska Pipe-
line Authorization Act of 1973.157 After providing for
strict liability for activities in connection with the pipe-
line right of way on the part of the holder,15 8 the Act goes
on to create a compensation fund to pay for related inci-
dents. The liability provision is as follows:
Notwithstanding the provisions of any other
law, if oil that has been transported through
the trans-Alaska pipeline is loaded on a vessel
at the terminal facilities of the pipeline, the
owner and operator of the vessel (jointly and
severally) and the Trans-Alaska Pipeline Li-
ability Fund established by this subsection,
shall be strictly liable without regard to fault
in accordance with the provisions of this sub-
section for all damages, including clean-up costs,
sustained by any person or entity, public or pri-
vate, including residents of Canada, as a result
of discharges of oil from such vessel. 1 59
Exoneration is allowed for damages caused by act of war or
negligence of the United States or other governmental agen-
cy and for negligence of the damaged party, and liability
is limited under this subsection to $100 million for any
one.incident. 16 0 The Fund itself is to be a non-profit
corporate entity that may sue and be sued in its own name,
with its resources to be maintained at the level of $100
million by imposition of a fee of five cents per barrel by
1 61
the pipeline operator against the owner of the oil.
Aside from the immediate and obvious interests of Canada
62
and Canadian citizens in this piece of U.S. legislation,1
157. 43 U.S.C.A. § 1651 (Supp. 1975).

158. Id. § 16 53(a) & (b).
159. Id. § 1653(c)(1).
160. Id-.§ 1653(c)(2) & (3).
161. I-. § 1653(c)(5).
162. See also § 1654 of the Act, which authorizes the
President of the United States to enter into negotiations
with the government of Canada on a whole range of issues
concerned with pipelines or other transportation systems
for the transport of natural oil and gas, including environ-
mental and energy issues.
[vT.
it is a matter generally worthy of international concern whe-

ther or not provision is made sufficiently to take into ac-
count possible environmental costs and ways of meeting them
in such a large-scale undertaking as this.
VI. A Note on Private Rights of Action Under National and

Local Laws
Since the present focus of inquiry is on "state respon-
sibility" in particular within the broader context of "world
public order," there has been little discussion here of pri-
vate rights of action in domestic arenas. This by no means
should be taken to imply that the possibility of private
litigation or other action is not of great significance.
Sometimes it is found preferable to international solutions.
In Michie v. Great Lakes Steel Division, National Steel
Corp.,163 for example, plaintiffs residents of the Windsor
area in Canada who are regular recipients of effluents from
the Detroit industrial complex in the U.S., chose to Insti-
tute private actions against three industrial corporations
and seek remedies for their air pollution in U.S. courts un-
der municipal law rather than waiting for a long and tedious
international claims process as in Trail Smelter or Gut
Dam. 164 And the new Nordic Environmental ProtectionConven-
Etin,1 6 5 which provides for reciprocal access to foreign
courts on an equal basis with nationals of the forum coun-
try for environmental causes of action, envisions such suits
on a regular and usual basis among citizens and legal en-
tities of the four countries involved. Furthermore, in some
cases private arrangements may be made to provide rapid com-
163. 495 F.2d 213 (6th Cir. 19741), cert. denied 419
U.S. 997, 95 S.Ct. 310, 42 L. Ed. 2d 270 T(-9-7). Thirty-
seven residents of Canada brought this suit against the
three corporations, claiming that pollutants emitted by the
defendants' plants were noxious and represented a nuisance
which resulted in damage to their persons and property. At
the time of this writing, the suit is still pending. For
discussion of why this form of action was preferred to the
international claims route, see lanni, "International and
Private Actions in Transboundary Pollution," 11 Can. Y.B.
Int'l L. 258, 266-70 (1973).
lb4. See TAN 101-06 supra.
165. -o'nvention on the Protection of the Environment,
done February 19, 1974, in 13 Int'l Legal Materials 591
pensation without need of juridical intervention of aiy

type, as the U.S. government undertook to do in regard to
597 claims filed in connection with the Palomares inci-
dentl 66 and as it is reported ARCO privately is doing by
opening up a claims office to handle claims resulting from
the Cherry Point oil spill. 16 7
Frequently such private litigation under national and
local laws will be capable of resolving satisfactorily and
expeditiously the controversy. Often, nevertheless, the
juridical tangle likely to result without additional bene-
fit of international liability and compensation arrange-
ments will be highly confusing. There was a good deal of
private litigation--some of it effectively resolved--in the
wake of the Torrey Canyon disaster; and in the more recent
Incident, as regards the Cherry Point costs, ARCO is re-
puted now to be bringing suit against the charterers of the
tanker for indemnity. 16 9 Yet in most such situations, with
all the parties and countries involved with different ap-
plicable fault and limitation provisions and other con-
flicting legal requirements, truly prompt and adequate com-
pensation seems virtually unimaginable without prior gen-
eral agreement on a standard of strict liability for some
actor imposed in accordance with certain set rules and
regulations. And it is only through such agreement that
the parties in Interest can know reliably beforehand the
possible consequences of their activities so as to be able
to make arrangements for insurance or other cost-spreading
devices.
166. It was announced on January 16, 1967 by U.S. Em-

bassy sources in Madrid that the U.S. had paid $558,104 to
475 Spaniards who suffered damage when the four bombs fell.
U.S. officials said that 597 claims had been filed and that
all of them would be paid. A group of residents from
Palomares alleged, however, that only 3% of the claims had
been paid in full, and they asserted that outstanding claims
totaled $2.5 million. "U.S. Pays Spanish Claims for Damage
by Lost Bomb," N.Y. Times, Jan. 16, 1967, at 14, col. 3.
167. See 1'ARCO Sets Up Offices for Oil Damage Bills,"
supra note 5-.
168. For discussion of the Torrey Canyon litigation
see Brown and Comment, supra note 43. As far as ARCO is
concerned, information has been aained from interviews
with officials of the corporation and officials of the
Canadian and U.S. governments.
STATE ENVIRONMENTAL RESPONSIBILITY [vTY
[VOL.2
In short, although this is not the place to discuss

comparative national substantive legislation or procedural
requirements in environmental cases, it must be noted that
municipal law too can be critically important. It is un-
realistic to try to make any sharp and fast distinctions
between international and national legal responsibilities,
as what is involved are multiple interacting and inter-
reactive processes of authoritative decision.
VII. Summary
"State responsibility," in the broad sense in which

the term is used in the environmental context, encompasses
a whole spectrum of active and passive duties of states
both looking outward to their capacity as the primary ac-
tors in international relations and looking inward to their
role as protectors of their own citizens. A range of sanc-
tioning processes has been developed to give force to this
state responsibility under international environmental law.
Looking first at state responsibility for the prevention
of environmental deprivations, national environmental
policing systems are being put into operation both in sup-
port of national legislation and to provide enforcement for
the multiplicity of obligations created pursuant to inter-
national environmental prevention prescriptions. A Global
Environmental Monitoring System is being inaugurated, and
if effective it should enable both evaluation of the ef-
ficacy of existing provisions and determination of neces-
sary or desirable preventive measures to be instigated in
the future. Secondly, when prevention has not been accom-
plished for whatever reason and there is grave and immi-
nent threat of environmental harm, under both explicit
treaty provisions and customary legal norms, states have
the right and the responsibility to abate or minimize in-
jurious effects, even to the extent of drawing on a neces-
sary and proportional degree of force to accomplish these
objectives. At times it may seem essential or desirable
to avert the very risk of grave harm rather than to wait un-
til an actual threat has materialized, and states are free
to seek resort to political pressure, injunctive relief or
any other reasonable means that may work to this end. And
finally, states are evolving a standard of responsibility
for interstate environmental warning and notification,
which is a necessary precondition for resort to environ-
mental deterrence measures in many types of situations.
1975] YALE STUDIES IN WORLD PUBLIC ORDER 87
Thirdly, when environmental harm has not been prevented and
impending threats have been incompletely deterred, the prob-
lem of reparation and compensation for damages arises. In-
ternational law gives evidence of the emergence of a gen-
eral standard of strict liability for environmental injury
in such cases as Trail Smelter, Gut Dam, Lac Lanoux and
Corfu Channel, and it also bears witness f imposition of
absolute liability for certain environmentally ultrahazard-
ous activities. Some environmental compensation funds, at
least.in the area of oil pollution damage, are being cre-
ated to ensure the actual and prompt payment of compensa-
tion to the injured parties. Still and all, as the Stock-
holm Declaration expressly admitted, there is vast room for
improvement and vital need to "develop further" interna-
tional environmental law in these areas.

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STATE RESPONSIBILITY FOR

ENVIRONMENTAL PROTECTION AND PRESERVATION:

I. Treaty of Guadelupe-Hidalgo - International Law, 21

III. Prevention of Environmental Deprivations

7. Report of the United Nations Conference on the

"police action" may include the promulgation of standards

A. National Environmental Policing Systems

8. Rev. Stat. Can. 1970 (1st Supp.) c. 2 (1970).

arctic,"110 the government of Canada has gone ahead on its

10. Supra note 8, preamble.

their shores). 12 Rather than dwell on the extent of or juris-

12. On flags of convenience, see generally Boczek, Flags

B. Sanctions to Enforce International Prevention

role of declaratory judgments in cases of potential environ-

18. Handl, "Territorial Sovereignty and the Problem

judges insisted, not only did this assertion fail to take

that therefore "no further action thereon is called for on

cial permit" systems for certain grey-listed substances tak-

by Dumping from Ships and Aircraft, done February 15, 1972,

tic Treaty34 with its prohibitions, the draft European Con-

thority qualified only by requirements that such powers be

39. See Report, supra note 7, at 59.

responsibility which should be given explicit recognition,

IV. Deterrence of Impending Environmental Harm

42. Results of Consideration of Proposals and Amend-

are imminently promised. Such a danger which one state may

A. Abatement and Minimization of Damage

43. For presentation of the facts and analysis of the

controlled by an American oil corporation, was registered

at the Cherry Point refinery of Atlantic Richfield Corpora-

45. Statement on the Cherry Point Oil Spill by Hon,

apart imminently and thereby endanger safety of navigation,

47. Mostert, "Profiles: Supertankers," New Yorker 45

instead be concerned with activities on air, land, sea or

48. See generally Lewis, One of Our H-Bombs is Missing

As all these instances illustrate, once the danger has

51. See the discussion of self-defense, self-preserva-

provincial and local agencies." 5 3 With comparable objec-

53. The Plan itself was adopted on June 10, 1971. It

57. On the general subject of the international legal

government made plans to release 20 kilograms of tiny copper

"New Panel to Screen Space Experiments," id., May 10, 1962,

60. See Committee for Nuclear Responsibility v. Sea-

66. Wilderness Soc'y v. Hickel, 325 F. Supp. 422, 424

should. further refrain from applying any administrative, ju-

69. Id. at 17 & 35.

Furthermore, these incidents . . . consti-

73. Declaration of Judge Ignacio-Pinto, [1973] I.C.J.

tests less than a year later. Subsequently, however, It

C. Warning and Notification

77. "Draft Declaration on the Human Environment,"

And there was much further debate and a whole intervening

79. Id. quoting U.N. Doc. A/CONF.48.CRP.5 (1972).

and it considers further that

89. OECD Doc. C(74)224 (21 November 1974), reprinted

to "assess the potential effects of these activities" and to

V. Reparation or Compensation for Environmental Injury

When environmental deprivations have not been prevented

92. Results of Consideration of Proposals and Amend-