23 December 2021
Enforcing the Rules
By Robert Kilconner
In the 1860s John Rylands and Jehu Horrocks ran a coal mine on their land and a near neighbour Thomas Fletcher decided to construct a reservoir. Of course, it being a mining area, Fletcher’s contractors should have checked thoroughly to see that there were no old workings under the reservoir site and, if there were, should have stopped them up or capped them off. Unfortunately the work was not properly carried out and, as the reservoir filled up, the pressure on the old mine shafts increased, and increased, and increased… until… splosh! The water flooded into the old workings and through connecting tunnels into the mine owned by Rylands and Horrocks.
The litigation which followed went all the way to the House of Lords and in deciding for Rylands and Horrocks, the Court added a new head to the list of actionable torts, Lord Cairns endorsing the judgement of the court below that:
”the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape.”
And illustrating the rule as follows:
“The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.”
That was 1868 and responsibility for preventing something brought onto property from escaping and doing damage was placed firmly on the person who did it. Now roll forward 154 years and look at the problem internationally. One of the lessons of the last couple of years is the extent to which things done in one country can affect others. Create a virus in one country and the citizens of its neighbours pay the price. Pollution here means global warming and flooding there. The accident at Chernobyl could, if not contained, have made much of Europe uninhabitable. There is nothing new about this, of course. The ability to export harm internationally has just become more obvious and something needs to be done about it if catastrophe is to be avoided.
But what? And how?
Since Rylands v Fletcher was decided, land owners have been discouraged from doing things which damage their neighbours by the threat of actions for damages. That would hardly work in an international context and the equivalent, sanctions, have proved of very limited effectiveness. How then can one restrain states from taking actions which damage their neighbours without infringing their sovereignty? The answer is that you cannot, so it is the principle of sovereignty which has to be cut back. Disease control, emissions, nuclear power, these and other areas where damage is suffered in states other than those giving rise to the problem need to be covered by a set of rules imposed by the UN or some other external agency and enforced by military muscle. Would that infringe national sovereignty? Yes. Would it infringe democracy? Yes, in the areas in question. Would it spill over into other areas? Maybe, but the risk must be taken. How could it be done?
At the end of the Glasgow summit, America and China indicated that they would work together on emissions. They should try to come up with a set of targets which they can sell to the Security Council and then get sanction to impose them, if necessary by force. If that works on emissions, the approach could be tries in other areas. Would that amount to neo-colonialism? Probably, but who the hell cares?