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State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?

THE topic "International Liability for the Injurious Consequences of Acts Not Prohibited by International Law" has been on the agenda of the International Law Commission since 1978.1 Despite adopting an ever narrower focus, it remains a difficult and controversial one. There are two major reasons for this. First, at a theoretical level, it is not clear that the conceptual basis on which it is distinguished from State responsibility is either sound or necessary. Second, at a more practical level, it is questionable whether it represents a useful basis for codification and development of existing law and practice relating to environmental harm, the field in which the Commission has mainly located the topic. From either perspective, it is liable to seem at best a questionable exercise in reconceptualising an existing body of law, or at worst, a dangerously retrograde step which may seriously weaken international efforts to secure agreement on effective principles of international environmental law. The purpose of this article is to explore the arguments for the new topic and to examine briefly the Commission's main proposals.