Juxtaposition of the terms ‘responsibility’ and ‘liability’

This section examines the legal concepts of responsibility and liability.

830 Johnstone 2015, op. cit., p. 265, citing D. Ong, “International Environmental Law’s “Customary” Dilemma:

Betwixt General Principles and Treaty Rules”, The Irish Yearbook of International Law, 2006, vol. 1 (3), p. 21.

831 ARSIWA, draft art. 47. See also Chapter 5.8.

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Whereas the English text of the UNCLOS uses both terms,⁸³² other authentic texts of the Convention refer to a single word to cover both ‘responsibility’ and ‘liability’.⁸³³ The discrepancy can be explained by the fact that the distinction between ‘responsibility’ and

‘liability’ is unknown outside the common law legal system.⁸³⁴ According to the provisions of the UNCLOS, the term ‘responsibility’ is meant to designate a set of obligations incumbent upon the States Parties, while the term ‘liability’ refers to the consequences arising from a breach of those obligations.⁸³⁵

Another possible approach to distinguish the concepts of ‘responsibility’ and ‘liability’ may be to draw the line between the obligations of States in public international law and the obligations at the private law level.⁸³⁶

However, none of the mentioned approaches correspond to the ILC’s conception of the terms

‘responsibility’ and ‘liability’. The ILC adopted an approach according to which both terms deal with the consequences of certain acts.⁸³⁷ Whereas the term ‘responsibility’ is used exclusively in connection with internationally wrongful acts, the term ‘liability’ denotes the legal consequences attached to injurious activities that are not deemed wrongful under international law.⁸³⁸ In other words, the ILC has attempted to make it clear that the responsibility of a State would arise when it has acted wrongfully under international law, while international liability in a situation in which the State has acted lawfully, but with a risk of causing damage.⁸³⁹ This conceptual distinction resulted in the segregation of the topic of State

832 UNCLOS, arts. 139, 235 (1) and 263.

833 The Russian text refers to the term ‘ответственность’, ‘responsabilité’ in French, ‘responsabilidad’ in Spanish and ‘Haftung’ in German. See also Yearbook of the ILC, 1980, vol. II (Part One), Preliminary report on international liability for injurious consequences arising out of acts not prohibited by international law, prepared by Mr. R. Q. Quentin-Baxter, Special Rapporteur, Doc. A/CN.4/334 and Add.1 and 2, pp. 250-251, available at http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1980_v2_p1.pdf&lang=EFSR; Yearbook of the ILC, 1986, vol. II (Part One), Second report on international liability for injurious consequences arising out of acts not prohibited by international law, by Mr. J. Barboza. Doc. A/CN.4/402, available at http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1986_v2_p1.pdf&lang=EFSRA (last accessed January 2019); R. Lefeber, Transboundary Environmental Interference and the Origin of State Liability, The Hague: Kluwer Law International, 1996, pp. 13-14; ITLOS’s Advisory Opinion of 2011, para. 66.

834 J. Barboza, The Environment, Risk and Liability in International Law, Martinus Nijhoff, 2010 p. 22.

835 ITLOS’s Advisory Opinion of 2011, paras. 65 and 66. See also A. E. Boyle, “State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: a Necessary Distinction?”, International and Comparative Law Quarterly, 1990, vol. 39, p. 9.

836 Boyle 1990, op. cit., p. 9.

837 Barboza 2010, op. cit., p. 23.

838 Yearbook of the ILC, 1973, vol. II, Report of the ILC on the work of its twenty-fifth session (7 May -

13 July 1973), Doc. A/9010/Rev.1, p. 169, available at http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1973_v2.pdf&lang=EFSR (last accessed January 2019).

839 Yearbook of the ILC, 1977, vol. II (Part Two), Report of the ILC on the work of its twenty-ninth session (9 May-29 July 1977), Doc. A/32/10, p. 6, para. 17, available at

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responsibility (ARSIWA) from international liability (AP and PAL) – an approach that has been criticized in legal literature.⁸⁴⁰

This thesis employs the distinction between ‘responsibility’ and ‘liability’ made by the ILC because, despite the criticism, that distinction is often used in case law and current legal literature, also in addressing the issue of environmental damage.⁸⁴¹ In other words, this means that the term ‘responsibility’ is used where a State commits an internationally wrongful act:⁸⁴² for example, in a situation where a State authorizes exploitation of a shared hydrocarbon deposit unilaterally or does not comply with the provisional measures prescribed by a judicial body.⁸⁴³ A State also bears responsibility for a failure to exercise its due diligence obligation to ensure that hydrocarbon activities are carried out in compliance with its international obligations, including the obligation to prevent significant harm to the (marine) environment as considered further in this Chapter. Nevertheless, it is worth noting that in some parts of the following Chapters the notion ‘responsibility’ means an obligation (to do or not to do something) of a State or an inter-State body. For example, the phrase “State A and State B share responsibility for protection of the marine environment of the area X” implies that both State A and State B have obligations to protect the marine environment. This deviation from the definition of the term ‘responsibility’ used in Part III is due to the wording of a particular arrangement or agreement in which ‘responsibility’ means ‘obligation’.

The term ‘liability’ is used to indicate a situation where a State has met its due diligence, but (environmental) damage has nevertheless happened – a duty to address such damage.⁸⁴⁴ The issue of international State liability is particularly relevant where the civil liability regime does not function optimally. Chapter 5.7 deals with State liability in the absence of a wrongful act.

http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1977_v2_p2.pdf&lang=EFSR (last accessed January 2019). See also AP, draft art. 1, commentary 6.

840 See, for example, M. B. Akehurst, “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law”, Netherlands Yearbook of International Law, 1985, vol. 16, p. 8; Boyle 1990, op. cit., p. 14; L. De La Fayette, “The ILC and International Liability: a Commentary”, Review of European Community & International Environmental Law, 1997, vol. 6 (3), p. 324-327. See Chapter 1 concerning the ARSIWA, AP and PAL.

841 See, for example, Scovazzi 2002, op. cit.; M. Fitzmaurice, “International Responsibility and Liability”, in: D.

Bodansky, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmental Law, Oxford University Press, 2008; Johnstone 2015, op. cit., Part 3.

842 Chapter 5.3 discusses the elements of an internationally wrongful act.

843 See Chapters 3 and 4 (e.g., Ghana/Côte d'Ivoire Judgment, Part X).

844 See, for example, Johnstone 2015, op. cit., p. 192 and especially Chapter 11.

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