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4 J.L. & Tech. 75 (1989)
Transnational Injury and Ultra-Hazardous Activity: An Emerging Norm of International Strict Liability

handle is hein.journals/jlawtecy4 and id is 83 raw text is: TRANSNATIONAL INJURY AND ULTRA-HAZARDOUs ACTIVITY: AN EMERGING NORM OF INTERNATIONAL STRICT LIABILITY The dynamic nature of international law significantly shapes analysis of the inter- relationships between the doctrine of sic utere tuo ut alienum non laedas,' State liability, and the conduct of ultra-hazardous activity. State practice exhibits recog- nition of the inadequacy of the traditional law of State liability to withstand the recently perceptible international implications of ultra-hazardous activity. At the same time, State practice evidences a desire to create and develop a new regime of liability intended to govern these concerns. In accordance with State recognition and practice, this paper seeks to assess the relationship between the international principles inherent in the doctrine of sic utere, and the conduct of ultra-hazardous activity. First considered are the merits of a shift in liability regimes, with specific respect to ultra-hazardous activities. Next, the paper addresses the extent to which a regime of strict liability has emerged.2 More specifically, the paper considers conventional international law, international judicial and tribunal decisions, and general principles of international law, in an effort to ascertain the extent to which the imposition of strict liability for the injuri- ous transnational consequences of ultra-hazardous activity currently reflects custom- ary international law. Ultimately, this paper concludes the following: the application of a strict liability standard for ultra-hazardous activity does not currently reflect an established cus- tomary international law. Careful examination of State practice reveals a hesitancy by the international community to convert to a standard of strict liability. For this reason, a regime of strict liability for the injurious transnational consequences of ultra-hazardous activity must be considered to reflect only an emerging norm of customary international law. Further, the scope of this emerging norm remains nar- rowly defined and presently governs only those transnational injuries caused by three ultra-hazardous activities traditionally regarded as such: nuclear power, outer space, and pollution-causing operations. I. THE MERITS OF A SHIFT IN STATE LIABILITY REGIMES The traditional doctrine of State responsibility3 incorporates a negligence or fault 1. Property ought not to be used so as to injure that of another person's. 2. International law does not appear to distinguish between strict liability and liability without fault, as does domestic law. For purposes of this paper, reference to strict liability may be understood as refer- ence to liability without fault. 3. Responsibility and liability are recognizably distinct. The International Law Commission notes that liability carries with it a sense of immediacy or directness of legal obligation, and imports the actual subjugation of one party to the lawful power of another. Responsibility, in contrast, refers to pre-existing circumstances not necessarily connected with the conduct causing harm. One who is respon- sible by means of these pre-existing circumstances may be made liable and thereby subject to a demand 75

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