The International Law Commission and State Responsibility: Application of a Comparative Paradigm on Oil and Watercourses

Singh, Connie S., Forum on Public Policy: A Journal of the Oxford Round Table

This article covers transboundary issues relating to the aggregate of legal norms derived from international law to determine the extent to which States within the international community may be held responsible under international law for acts that breach international obligations concerning oil production: risk of harm, or harm to the environment within State jurisdiction. Examples which show the emergence of transnational normative development in relation to state responsibility (1) are provided.

This is achieved by creating a paradigm by applying the United Nations International Law Commission Report on State Responsibility (2). The Report includes provisions for: state responsibility for internationally wrongful acts; new legal relationships; new rights; corresponding obligations and duty; and duty incurring state responsibility. International situations have resulted in new legal consequences found in the Unocal Case (3) and in the Chevron Case. (4) Also, the Spratly Islands (5) dispute brings to light all aspects of liability for injurious consequences arising from obligations, pinning regional States to become antagonistic units.

Examples of Possible Regional Conflict Areas

There has been recent evidence of confrontation between China and Vietnam with demands that the other cancel its contract. China and Vietnam both grant exploration contracts to United States Oil Companies: 1992 China National Offshore Oil Corporation with Crestone Energy for exploration of Wan'an Bei Block 21= 25, a 155 [km.sup.2] section of the south western South China Sea that includes the Spratly Islands. Crestone's contract includes Vietnam's Block 133 and Block 134, where Petro Vietnam and Conoco Phillips Vietnam Exploration & Production, which is a section of Conoco Phillips, agreed to evaluate prospects in April 1992. (6)

The South China Seas area is another example of conflict arising in one of the major shipping lanes on the high seas, where it is estimated one trillion dollars value of oil, gas and fish can be found. (7) Natural gas is located in the littoral States in the area such as Brunei; Indonesia; Malaysia; Thailand; Vietnam; and the Philippines. There have been suggestions to create pipelines to link the gas producing regions of the Pacific Rim, with the South China Seas as central in scope. Malaysia has been the most active in oil and natural gas production, and is the largest producer in this region. Cambodia has claimed territorial jurisdiction in areas of the Gulf of Thailand and has signed exploration contracts with several companies. Thailand has also begun to follow suit. China has developments in the offshore oil fields of Yacheng. Indonesia is in the Natuna gas fields. Malaysia has escalated production since 1997 from the Malaysian Lawit field. Vietnam is interested in the Nam Con Son Basin. (8)

Obligation Incurred by the State Whose Act is Internationally Held Wrongful: International Law Commission Report (9) on State Responsibility

The objective of this aspect of the paradigm is to determine the extent to which a State may be held responsible under the sources of international law for acts that breach international obligations concerning the use of a shared contiguous territory. Existing norms and developing norms of general international law are examined to find which legal rules would bind States in terms of rights, duties and obligations. This exercise will serve to indicate whether a State can be held responsible for acts constituting utilization of territorial jurisdiction under international law where there may be risk of damage to other States. This will be done by concentrating on the fact that 'an obligation' is a mirror reflection of a 'right' of another State, and that the term 'norm' implies the idea of an obligation erga omnes. (10)

States currently enjoying the use of their own territory, or other jurisdiction, for purposes of oil production have been: i) using armed measures to protect oil exploration; ii) in violation of jus cogens (11) crimes against humanity; and iii) involved in civil disputes, causing unrest on foreign grounds.

Since current international armed conflict situations have not been of benefit to any western hegemonic power any new conflict involving oil will only serve to weaken western economies. This seems to have become clear since the New International Economic Order movement in the seventies.

State sovereignty is defined in international law through terms of jurisdiction. It enables oil producing States in the New World Order regimes to negotiate effectively about resources such as oil and water within their jurisdiction as defined by the International Law Commission. State Responsibility forces States to look at law which may be beneficial for protection of oil production. That is protection over their territorial jurisdiction, without heading into greater armed conflict.

This Draft Report includes legal provisions that would allow States to use a wide range of international law in a feasible manner. It creates legal methods by which States with oil interests may shield themselves from liability and injurious consequences to another States' property, or multinational corporations or populations by incorporating legal norms found in the Draft Report on State Responsibility, into their own domestic legal systems.

Article 19 (12) of the Draft Articles on State Responsibility (13) provides:

"International crimes and international delicts are 1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached, and 2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime."

At this stage of their draft, the International Law Commission has found it necessary to limit its wording to avoid any association with international crimes or a delict. "The distinction between crimes and delicts might, however, find its justification in the treatment of legal consequences. It is indeed a generally held concept that the gravity of a breach of an obligation shall determine the gravity of the legal consequence. Returning ... to the criteria of international delicts and international crimes, it has to be asked whether it is in the interest of the progressive development of international law to introduce a third category of international crimes beyond the existing categories of normal rules of international law and jus cogens'" (14) Independently of how the norms, the breach of which, constitute an international crime are defined ... the notion of safeguarding and preserving the human environment as a legal duty is a comparatively new one. It comprises a legal system of rules and obligations.

As a comparative, this analysis will extend to States sharing a contiguous zone or territory containing categories of hydrocarbons; fossil fuels, oil resources, or watercourses. This is to explain the position of States which have caused significant harm to the territorial jurisdiction of other States through environmental damage due to contractual agreements, but not because of actual works undertaken. The utilization of territory for oil production conducted in the territory of one State may produce harmful effects to those States sharing the same jurisdiction, especially in water, under water, and during transportation over water. The extent to which a State is responsible under international law for utilizing its rivers in such as way that it causes general harm to the environment and subsequently to the international community as a whole, is examined. This is to arrive at a stage where there may be sufficient evidence to indicate that there is an obligation under international law to not cause harm to other jurisdictions, based on state responsibility under international law. (15)

First, it is necessary to ascertain whether a State could be held responsible and incur liability under rules of customary international law. Second is the relation of treaty rules to the evolution of general principles. This examines whether general principles are the next step in the evolution and normative growth of international legal norms. In the development of a treaty, there is often the growth of customary law that may be incorporated by States into their legal systems, later to be adopted as a part of internationally recognized general principles.

The aim is to analyse whether the State in violation of offending the rights of other States can be held responsible erga omnes, that is to the international community as a whole. A State's responsibility to the populations in its jurisdiction according to customary international law will be examined. Also analyzed is a State's responsibility to care for the environment in its own territorial jurisdiction so as to not infringe upon the rights of other States and other populations. The deduction in the method of this inquiry will be an assessment of whether the State violating the rights of other States can be held accountable to the international community as a whole.

In other words, a State government is responsible to the international community as a whole, to prevent use of territory for oil or water, which causes damage or injury to other States later, instead of being solely responsible to the specific State(s) suffering immediate effects of the damage incurred while enjoying use of oil or water in one's own State. The approach taken follows from the axiom of co-operation among members of the international community. The essence is that established norms governing co-existence between States that gave rise to the development of the principle of permanent sovereignty over natural resources, are giving way to unparalleled norms of co-operation between States to protect, preserve and conserve natural resources res communis, and also territory within the realm of State sovereignty. (16) Equitable use of a shared contiguous territory, including water, is subject to agreements between the States concerned. Harm caused through utilisation of territorial jurisdiction is subject to international law. However, international norms establishing rights, duties and obligations, show evidence that damage to any territory anywhere, is an injury to the entire globe.

In other words, obligation and responsibility of a State would not remain as the onus resting squarely upon one State but will be subject to responsibility shared by the international community of States providing, for example, regulatory inspection through an international agency, mandated with the task required. This does not mean a loss of sovereignty, or negation of due responsibility upon the State where the incident occurs. It would mean that a regulatory agency is able by virtue of its mandate, to accept and handle a portion of the responsibility and reparation for damages. An example of this is the United Nations Convention on the Law of the Sea (17) which provides an arbitration structure, a distribution mechanism for sea-bed mining, as well as shared responsibility for damages to the res communis.

Comparative Example: the extent to which a State may be held responsible for induced earthquakes from construction of a dam

An induced earthquake by a private or public company (18) may attach responsibility to the State which has contracted a public or private company to carry out the initial assessment and subsequent works, if the works have affected harm upon another State. For example, there have been a few municipal cases involving negative environmental impacts from dams in the United States, although liability was not established in the Courts. (19) The issue here is whether the seismic tremors that are induced by human activity, with risk of harm to populations, cause liability for damages, and if the damages would be incurred by the State or by a private agent such as the engineers. (20) "Where a defendants wrongful acts co-operate with, augment, or accelerate, the forces of nature, known as an act of god, to the injury of another, he is liable in damages". (21) It is argued, "that scientific research has established a cause and effect relation between the earthquake' s induced and human activity, and that there may exist a cause and effect relation between the defendants' activity and the plaintiffs' injuries. From a scientific viewpoint, the 'cause' is the tectonic strain released by the inducing activity. From a legal standpoint, however, the activity that triggers the release of tectonic energy as an earthquake is itself a significant 'cause' of the resulting damage." (22)

According to Hans Kelsen, "in a purely 'voluntarist' approach to international law, a conduct of a State amounting to a breach of an international obligation of that State might be considered as a 'repudiation' of that obligation, creating a new situation, which surely may give rise to new legal relationships under international law, but then to new relationships which, as it were 'start from scratch' and have no direct and necessary link with the old legal relationship as expressed in the primary rule which the State breached by such conduct." (23) Furthermore, the growth of customary international legal norms is independent from later application of the rule and later practice of States with respect to treaties. The breach of a new obligation and the legal consequences as such are not subject to the scrutiny of the existing international regime, but rather to all details and spheres of normative advancement in the process of international customary law formation.

"Obviously, any 'new legal relationship' created by the breach of an international obligation involves, as does the original primary obligation, a limitation of the author State, taken in the sense of its complete freedom of action. 'Sovereignty' in this primitive, unlimited, sense, is clearly not a 'right' of the State under international law." (24) Principally, "in view of the …

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Publication information: Article title: The International Law Commission and State Responsibility: Application of a Comparative Paradigm on Oil and Watercourses. Contributors: Singh, Connie S. - Author. Journal title: Forum on Public Policy: A Journal of the Oxford Round Table. Publication date: Summer 2008. Page number: Not available. © 2008 Forum on Public Policy. COPYRIGHT 2008 Gale Group.

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