Transboundary harm

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Definition[edit | edit source]

Transboundary harm
The basis of liability for transboundary harm is sine delicto stricto sensu, which means that States may be liable for causing transboundary harm in the absence of fault or negligence on their part. This form of liability stems from the customary duty to prevent and redress transboundary harm articulated in the Roman law maxim of sic utere tuo ut alienum non laedas, which means that one cannot use their property in a manner that causes injury to others.[1] While liability for transboundary harm has been most commonly applied in the environmental realm,[2] it is also relevant for a broader range of legal issues, including international water law,[3] and international space law.[4] Liability is different from the concept of State responsibility. A State is responsible when an act (or omission) is attributable to the State, and it is wrongful under international law. An act is wrongful only if a State violates a primary rule of international law. Liability, however, does not require a wrongful act to be committed but it is instead linked to the harm caused by the act.[5] This means that a State may be liable for causing transboundary harm even if the act causing the harm was not a violation of international law.

The most significant case in international law proclaiming liability for failure to discharge the duty to prevent and redress transboundary harm is the 1941 Trail Smelter arbitration between the United States and Canada.[6] When evaluating damages caused to the United States by a Canadian smelter, the tribunal held that “no State has the right to use or permit the use of its territory in such a manner to as to cause injury by fumes in or to the territory of another or the persons or properties therein.”[7] Since then, the International Court of Justice (ICJ) has also invoked this duty of States to “ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control.”[8] While liability for transboundary harm has been applied in the environmental context, some publicists have stated that it can be extended to the cyber realm, as well.[9]

In 2001, the International Law Commission (ILC) produced the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.Its conclusions with regard to liability remain relevant even though the document has not been formally adopted by States. The ILC’s commentary on these Articles states that “the significant transboundary harm must have been caused by the physical consequences of such activities”.[10] Therefore, the ILC excluded transboundary harm caused by monetary, socio-economic or similar fields.[11]

However, the experts participating in the Tallinn Manual process were in consensus that there is no requirement for a cyber operation causing transboundary harm to result in physical damage to objects or injuries to individuals.[12] Certain publicists agree with this position, arguing that transboundary harm need not be limited to instances of physical damage.[13]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ↑ Beatrice A. Walton, ‘Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law’ (2017) 126 Yale Law Journal 1460, 1505.
  2. ↑ Xue Hanqin, Transboundary Damage in International Law (CUP 2003).
  3. ↑ Lake Lanoux Arbitration (France v. Spain), Arbitral Tribunal, 16 Nov. 1957, (1957) 12 Reports of International Arbitral Awards, p. 281.
  4. ↑ Joel A Dennerley, ‘State liability for space object collisions: The proper interpretation of 'fault' for the purposes of international space law’, (2018) 29 European Journal of International Law 1, 281
  5. ↑ Draft Articles on Prevention of Transboundary Harm from Hazardous Activities,commentary to Article 1, para 6
  6. ↑ Trail Smelter Arbitration (U.S. v. Can.), ; R.I.A.A. (Trail Smelter Arb. Trib. 1941).
  7. ↑ Trail Smelter Arbitration (U.S. v. Can.), ; R.I.A.A. (Trail Smelter Arb. Trib. 1941).
  8. ↑ Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reports 226.
  9. ↑ Beatrice A. Walton, ‘Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law’ (2017) 126 Yale Law Journal 1460; Russell Buchan, ‘Cyberspace, Non-State Actors and the Obligation to Prevent Transboundary Harm’ (2016) 21(3) Journal of Conflict & Security Law 429. François Delerue, Cyber Operations and International Law (CUP 2020) .
  10. ↑ Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, commentary to Article 1, para 6
  11. ↑ Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, commentary to Article 1, para 6
  12. ↑ Tallinn Manual 2.0, commentary to rule 6,paras 25-28
  13. ↑ Beatrice A. Walton, ‘Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law’ (2017) 126 Yale Law Journal 1460, 1505.

Bibliography and further reading[edit | edit source]

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