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By Tara Ashtakala
There is a general principle of law which dictates that whoever harms another is liable for that harm. Now that the Ottawa Land Mines Treaty has entered into force, the efforts of the ban movement are now largely concentrating on mine clearance and victim assistance. Increased funding will be needed as long as people continue to be injured by existing mine emplacements. One viable solution to this funding problem is holding those who produce land mines financially liable for the destruction caused by their products. This report examined such remedies available under the rules of both international and private law.
Those who suffer indirect injury from land mines use, such as being deprived of the use of agricultural land, may have recourse to the rules of international environmental law. For example, the "polluter pays" principle could be used by the mine-affected State to obligate the producers of the land mines used on its territory to pay for measures to restore the environment, including arable land, to an acceptable state. International human rights law also offers potential relief : a case which litigated basic rights of access to drinking water and of freedom of movement within one's country may serve as a useful model for those denied access to water wells or other sources by strategic mine emplacement.
The private law route to seeking compensation for land mine injury sees these pernicious weapons as defective products for which their manufacturers are now directly accountable to the third -party victim. Some older class-action suits in the US against pharmaceutical or chemical makers serve as useful model for a possible land mines injury lawsuit. For example, using Sindell v. Abott Laboratories, in most cases where a victim who would be unable to identify which particular mine caused his particular injury, each mine in a mine field would thus be presumed to be 100% responsible for injury to the plaintiff.
In principle, civilians injured by mines that are made with no disarming mechanism could sue the manufacturer for an omission in the product's design; those injured by miens that are supposed to self-destruct, but fail to do so, could claim a defect in manufacture of the product. The US Supreme Court, however, recently upheld a defence protecting companies, contracted by the government to make mines fitting government specifications, from suits based on defects in design. Therefore, it seems currently that a products liability suit in the US could be brought only regarding injury caused by mines that fail to self-destruct as required.
A more promising prospect for victims may be found in the recent lawsuits launched by US states and municipalities against the maker of cigarettes and handguns, products that, like land mines, kill indiscriminately. When a large number of States attorneys joined together to pursue the tobacco manufacturers for reimbursement of the billions of dollars spent by the States on treating tobacco-related illness in State-paid Medicaid patients, the tobacco companies decided to settle out of court for a multi-year, multi-billion-dollar payment. Such a protracted and sizeable award given up by intimidated land mines manufacturers would go along way in fighting the problems caused by at least pre-Ottawa Treaty mine emplacements. Similar suits against the powerful handgun industry by US cities claimed, inter alia, that manufacturers, permitted an illegal black market to supply guns into the wrong hands. However, the scope of a similar claim against land miens makers may be reduced in the US by recent legislation.
The mere threat of such lawsuits, the public scrutiny they attract to manufacturers and the generous settlements they have extracted from powerful industries offer the best hope, in this authour's opinion, for success in an analogous products liability suit against land mines producers.