The Planetary Crisis: Applicability of Negotiorum Gestio

1Introduction

Negotiorum gestio is originally a civil law concept. When an intervenor acts on behalf of, and for the benefit of, the principal without the prior consent of the principal, the intervenor is entitled to reimbursement of expenses. Its essence can be summarized as follows. When the intervener acts with the predominant intention of benefiting the principal and the intervener has a reasonable ground for acting or the principal approves the act without such undue delay as would adversely affect the intervener, the intervener has a right against the principal of indemnification, reimbursement, remuneration or reparation if some conditions are satisfied.

The concept of n egotiorum gestio is known in civil law systems, for instance in France, Italy, Germany and Japan.¹ It is generally said that negotiorum gestio is not known in common law, but it exists in the South African law and in the law of England in the area of salvage.² The European standard of the concept of negotiorum gestio is shown as benevolent intervention in another’s affairs in the Draft Common Framework of Reference by the Study Group on a European Civil Code.³ The concept of negotiorum gestio does not seem to be peculiar to European law. It is also a part of Islamic law. For instance, negotiorum gestio exists in Qatari and Iraqi laws.⁴

Does the concept of negotiorum gestio exist in international law? As distinct from unjust enrichment, which is sometimes referred to and is considered to be included in the general principle of international law⁵, negotiorum gestio is rarely referred to in international law and its legal status is not clear. However, when we carefully check State practice, we can find that the concept of negotiorum gestio appears in some treaties like salvage conventions as well as some diplomatic practices like the reimbursement of expenses arising from the assistance to abate and prevent environmental damage to the Persian Gulf (Arabian Gulf) after the Gulf War in the framework of the United Nations Compensation Commission (UNCC). Also, the application of the concept of negotiorum gestio is indispensable and useful in carrying out planetary defense and in addressing planetary crisis such as space debris. Space debris are defunct space objects and the planetary defense is the prevention of the collision of comets and asteroids with the Earth.

2 Negotiorum Gestio in International Law

The concept of negotiorum gestio has a long history, although it was rarely invoked by states. Some states invoked the concept for the first time more than one hundred years ago in an inappropriate fashion. In the Venezuelan Preferential Case, Germany, the United Kingdom and Italy which blocked Venezuela as a mode of gunboat diplomacy invoked negotiorum gestio to claim the preferential treatment in the recovery of the Venezuelan debt.⁶ Neutral States including Spain, the Netherlands, Sweden and Norway objected to it.⁷ Despite the invocation of the concept by the parties to the dispute, the arbitral award dated 22 February 1904 is silent about negotiorum gestio.⁸

Nevertheless, it cannot be argued that the concept of negotiorum gestio is alien to international law. On the contrary, there are some, if not many, treaty rules which are based on this concept. The remaining part of this section cites three examples to illustrate the point.

First, the concept of negotiorum gestio has been adopted in treaties concerning salvage. Article 2 of the 1910 Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea⁹. provides that every act of assistance or salvage that leads to a useful result gives a right to equitable remuneration. It further states that no remuneration is due if the services rendered have no beneficial result. This provision clarifies “no cure, no pay” principle.

The 1989 International Convention on Salvage¹⁰. provides for a special compensation for salvors for tackling environmental damage. Article 1 (d) defines damage to the environment as substantial physical damage to human health or to marine life or resources caused by pollution, contamination, fire and so on. Article 14 paragraph 1 provides that if the salvor has carried out salvage operations in respect of a vessel which threatened damage to the environment, s/he is entitled to special compensation from the owner of that vessel equivalent to his expenses. The inclusion of the environmental damage was followed by the Lloyd’s Standard Form of Salvage Agreement (1980 version)¹¹. which introduced exception to “no cure, no pay” principle when environmental damage is involved.

Second, Article 5 of the 2001 Articles on Responsibility of States for Internationally Wrongful Acts¹² adopted by the International Law Commission (ILC) in 2001 has the element of negotiorum gestio. In the 1258^th meeting of the ILC on 16 May 1974, Erias, a member of the body, as concerns Article 8¹³(now Article 5), stated that the purpose of this article was to attribute to the State certain acts performed on its behalf, either at the request of the State or because the person concerned had felt the need to perform them and the case was in the nature of the negotiorum gestio of Roman law.¹⁴

Third, the 1963 Vienna Convention on Consular Relations¹⁵ provides in Article 31 paragraph 1 that consular premises are inviolable. But paragraph 2 provides an exception in the case of fire of the consular premise. In such situations, the consent of the head of the consular post may be assumed for the purpose of putting out the fire. It allows the receiving State, the intervenor, to act on behalf of the sending state, the principal. However, it seems to be a custom that the receiving State does not request the reimbursement of the costs to the sending state as international comity.

3Environmental Damage to the Persian Gulf and Negotiorum Gestio

On 8 April 1991, after the Iraqi aggression against Kuwait, the United Nations Security Council adopted Resolution 687¹⁶ In its paragraph 16, the Security Council reaffirmed that Iraq was liable under international law for any direct loss, or damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait. The Security Council further decided to create a fund to pay compensation for claims that fall within paragraph 16 and to establish a Commission that will administer the fund. As a result, the United Nations Compensation Commission (UNCC)¹⁷ was established.

The F4 Panel of Commissioners of the UNCC reviewed claims for direct losses relating to environmental damage and depletion of natural resources resulting from Iraq’s invasion and occupation of Kuwait. There were two categories of F4 claims. One was the regional claims, which means the claims by Gulf States which suffered environmental damage. The other was the non-regional claims, which means the claims by Western States of expenditures arising from their assistance to abate and prevent environmental damage.

The payment to the Western States for their expenditures can best be explained by negotiorum gestio, although the UNCC does not directly refer to it. Six Western States (Australia, Canada, Germany, the Netherlands, the United Kingdom and the United States) sought compensation for expenses incurred for assistance to abate and prevent environmental damage resulting from Iraq’s invasion and occupation of Kuwait. The expenses were in relation to taking measures to respond to the oil spills, oil fires and other environmental damage or threats of environmental damage resulting from the invasion and occupation, including monitoring and assessment of the impacts of the oil spills and oil fires. The total amount of compensation sought in the non-regional claims was USD 43,302,236.¹⁸ On 22 May 2022, the F4 Panel of Commissioners recommended USD 8,353,648 in total as compensation in lieu of the non-regional claims.¹⁹

4Space Debris and Planetary Defense: Usefulness of Negotiorum Gestio

Space debris is a serious problem. It may pose even more serious risks in future in a context when space activities continue to increase. Space debris are twofold. One type is space objects or their scattered parts falling onto the surface of the Earth. The other type is space objects or its scattered parts collide with other space objects in the outer space.

One of the most serious incidents of the former was the Cosmos 954 Case²⁰. On 24 January 1978, Cosmos 954, a nuclear-powered surveillance satellite of the then Union of Soviet Socialist Republics (USSR), crashed in the Northwest Territories of Canada. A huge amount of radioactive materials was scattered over a wide area of the Canadian territory. The clean-up operation called ‘Operation Morning Light’ was conducted jointly by Canada and the USA. The case revealed a defect in Article 5 of the 1967 Agreement on Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space²¹ of which Canada, the USSR and the USA are States parties.

Article 5, Paragraph 2 of the Agreement provides that Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts (emphasis added). Paragraph 5 provides that it is a duty of the launching authority to take care of the expenses incurred in fulfilling obligations to recover and return a space object or its component parts under paragraph 2.

In accordance with this Article, if Canada had requested the USSR to recover the scattered debris in the Canadian territory, the USSR had to do it. But this option is diplomatically difficult to adopt because the activities of the USSR in the Canadian territory may be a threat to the national security of Canada, particularly in the cold-war period. Canada and the USA recovered the debris. But there is no provision in the Agreement which enables Canada and the USA to demand the USSR to pay the expenditure incurred for the clean-up actions. Nevertheless, the USSR and Canada settled the matter bilaterally through a bilateral Protocol dated 2 April 1981. The USSR agreed to pay three million Canadian dollars to Canada towards the full and final settlement of the matter.²² Although the legal basis of the payment is not made public, it is considered to be ex gratia payment because the USSR did not admit responsibility.

The lack of a provision concerning negotiorum gestio is, therefore, a serious defect of this Article. It is not realistic to add a new provision in the Agreement as the revision of space-related treaties and agreements are almost impossible. Application of the concept of negotiorum gestio as a general principle of law is important when a similar case appears in the future.

Negotiorum gestio appeared in this case at another point as well. Canada did not include to the claim against the USSR the expenses incurred by the US in relations to the Operation Morning Light. Thus, arises the question of the US’s entitlement to get reimbursed. In this regard, it is instructive to refer to the draft prepared by the legal advisory division where the concept of negotiorum gestio is mentioned in the following manner: “...one who voluntarily incurs expenses by performing work or services which are “necessary” to another cannot recover the costs in the absence of legal authority to incur them. This concept of negotiorum gestio which comes from Roman law and has been accepted in international law, is not useful in the claim because Canada continuously kept control of the search, recovery, removal, testing and clear-up operations”.²³

The author’s opinion is different from this legal opinion. First, the US could claim the payment of the costs based on negotiorum gestio. Second, Canada could claim the the costs including the costs incurred by the US from the USSR based on negotiorum gestio.

With regard to the space objects or its scattered parts which collide with other space objects in the outer space, a key issue, in the context of this article, is how to share the cost of mitigation.

Some states are enthusiastic in launching space objects which take into consideration debris mitigation, but other states do not mind the spread of debris. As some space debris can be traced, it is reasonable to assume on a pro rata basis the approximate proportion of debris. The cost sharing among states should be based on this assumption. It is consonant with the polluter pay principle (PPP), a basic principle of international environmental law.

If a state voluntarily recovers space debris arising from space activities of another State which originally owes the recovery in accordance with the PPP, the former state can request for reimbursing the expenditure incurred for recovering the debris in accordance with negotiorum gestio. Clarifying this rule will be a great contribution for a better space environment in the future.

5Planetary Defense: Negotiorum Gestio and Good Samaritan Law

The collision of near-Earth objects (NEOs) with the Earth is not limited to the world of scientific fictions. On 26 September 2022, NASA’s Double Asteroid Redirection Test (DART)²⁴ successfully impacted its asteroid target. This was the first planetary defense test in the world.²⁵ Legal issues concerning planetary defense have been considered by at least some space lawyers.²⁶ The concept of negotiorum gestio is useful in the context of planetary defense as discussed below.

Although the measures for planetary defense including the smash of the NEOs, should hopefully be done globally and within the framework of the United Nations, in reality, geopolitical tensions make global cooperation difficult. In this situation, if a state voluntarily takes measures for the planetary defense in good faith, it is desirable to establish a rule for that state to receive the payment of the costs of such measures. The legal basis of such a rule could be drawn from negotiorum gestio.

As to the planetary defense, Good Samaritan law (or negotiorum gestio in emergency)²⁷ also has an importance role to play. Good Samaritan law gives legal protection to a person who gives reasonable help to another person in an urgent situation. Domestic civil laws and penal laws generally recognise this principle.²⁸ Although Good Samaritan law mainly appears in medical law, it can be applied in the context of planetary defense. Even if the measures of a state for the planetary defense accompanies collateral damages to third parties, the former is immune from the compensation for such collateral damages.²⁹

The 2000 Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters³⁰, which was adopted among the main space agencies in 2000, provides in paragraph 5.4 that the parties shall ensure that associated bodies which, at the request of the countries affected by a disaster, call on the assistance of the parties undertake to confirm that no legal action will be taken against the parties in the event of bodily injury, damage or financial loss arising from the execution or non-execution of activities.³¹ This rule is considered to be based on Good Samaritan law (or negotiorum gestio in emergency).

6Conclusion

International law is an evolving international public good. Although the concept of negotiorum gestio is overlooked or forgotten in today’s international law, it can and should play an important role in dealing with planetary crisis. The author apprehends that the geopolitical situation would make international cooperation difficult even when there exists a planetary crisis. Voluntary actions by a state acting in good faith to mitigate the crisis should be promoted. Applying negotiorum gestio in such cases may promote mitigating measures.

The motto of international lawyers should always be “think ahead, act for humanity”³²