Chapter IV

Conventional Law

1. Civil Liability Regimes in International Law

In this chapter we shall examine conventions on liability and compensation.

Bearing in mind that the only clear-cut cases of liability in international law
can only be found in the conventional field, an exploration therein seems nec-
essary.1 Besides, the existence of conventional rules may be an indication -never
conclusive, but always useful- of the status of such rules in customary law.
In a civil liability regime primary liability falls on private persons or enti-
ties2 acting within the framework of the State of origin’s domestic law. Treaties
between States provide an international legal framework to those regimes and
may establish liability rules common to all States parties; other rules regarding
the rights and obligations of private operators or other private parties are left
to be regulated by the member States.
International treaties establishing liability are related to specific activities -
particularly in fields like civil aviation, oil pollution, nuclear energy, transport
of certain goods, product liability and hazardous wastes. Other agreements
cover hazardous activities in certain regions, like Annex VI to the Protocol on
Environmental Protection to the Antartic Treaty. There are other fields where
negotiations are taking place with a view to create similar regimes -as in the
framework of the Biological Diversity Convention.3
Liability is imposed on private parties, but States assume a number of
important obligations, mainly to allow for prompt and adequate compensa-
tion to non-resident victims of the State of origin.4

1
For a rather complete exposé of individual existing conventions on liability and compensa-
tion consult the document of the Secretariat A/CN.4/453.
2
With one exception, the convention on space objects.
3
There is already an instrument, the Protocol of Cartagena on Biosafety, but it refers to preven-
tion of transboundary damages caused by Living Modified Organisms, not to liability; there
are ongoing negotiations on a Protocol on liability and compensation for damages to biologi-
cal diversity.
4
P.M. Dupuy states, with regard to civil liability conventions, “l’Etat, dans l’ensemble de ces
traits, n’apparait pas en tant que personne du droit international public, mais pour ainsi dire en

Julio Barboza, The Environment, Risk and Liability in International Law, pp. 31–44.
© 2011 Koninklijke Brill NV. Printed in the Netherlands.
32 Chapter IV

2. Common Features of Conventional Law

It must be recalled that primary obligations are the field of liability. In the con-
ventions, primary obligations are the product of the common will of the par-
ties to them. In fact, the parties may adopt the conditions and forms they
consider convenient; the only limitation being the imperative norms of inter-
national law. That marks a difference with secondary obligations, usually
imposed by international customary law following certain patterns already
established –such as cessation, restitution, etc. Although such patterns may be
modified by treaty, general law normally determines the obligations and con-
sequences related to responsibility.

2.1. Identification of Liable Parties: Channelling of Liability

Where liability is placed primarily on the State -like in the convention on
Space objects- and in conventions where part of the damage is allocated on
the State, such liability or allocations are independent of any act of the State.
The conduct of the persons who caused the damage is not attributed to the
State: only their legal consequences are.
Most conventions channel liability to the operator of an activity. The opera-
tor is defined as the party who has control over the activity at the moment of
the incident.5 However, some conventions establish that the party with control
is the one appearing in the public register of the State of origin as the owner of
the installation or of the vessel, etc. and where such registers do not exist the
owner is generally presumed to have direct control. In the Basel Protocol the
generator, the exporter, the importer and the disposer are successively liable.
Exceptionally, the Space Objects Convention -which deals with State or State
sponsored activities- does not channel liability to private parties. The carrier
of dangerous goods is the liable party in the Convention on Civil Liability
Caused During Carriage of Dangerous Goods by Road, Rail and Inland
Navigation Vessels (CRTD), the owner of the vessels in oil conventions.
Channeling liability affords a guarantee of prompt compensation to the
victims and facilitates the transfer of prevention and liability costs to the
prices of goods. Some conventions allocate losses in such a way as to avoid

civil, agissant en effet à l’instar d’une personne privée” Jiménez de Arechaga seems to share this
opinion.
5
Inter alia, the Convention on Damage caused by Foreign Aircraft to Third Parties on the
Surface, Rome 1952: arts. 2.1, 2.2, and 2.3; CRTD: art. 1.8; The Paris Convention: art. 3;
The Vienna Convention: art. 2; The Joint Protocol to the Paris and Vienna Convention: art. 2;
The CLC: art. III.1; The Fund Convention: art. 3.2; The Basel Protocol: art. 6; The Lugano
Convention: arts: 6.1, 7.1.