United Nations A/RES/61/36
General Assembly Distr.: General
18 December 2006
Sixty-first session
Agenda item 78
06-49659
Resolution adopted by the General Assembly on 4 December 2006
[on the report of the Sixth Committee (A/61/454)]
61/36. Allocation of loss in the case of transboundary harm
arising out of hazardous activities
The General Assembly,
Recalling that the International Law Commission at its fifty-third session 1
completed the draft articles on prevention of transboundary harm from hazardous
activities and recommended to the General Assembly the elaboration of a
convention on the basis of the draft articles,
Recalling also its resolution 56/82 of 12 December 2001,
Having considered chapter V of the report of the Commission on the work of
its fifty-eighth session,2 which contains the draft principles on the allocation of loss
in the case of transboundary harm arising out of hazardous activities,
Noting that the Commission decided to recommend to the General Assembly
that it endorse the draft principles by a resolution and urge States to take national
and international action to implement them,3
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1 (a), of the
Charter of the United Nations,
Noting that the questions of prevention of transboundary harm from hazardous
activities and allocation of loss in the case of such harm are of major importance in
the relations of States,
Taking into account views and comments expressed in the Sixth Committee on
chapter V of the report of the Commission on international liability in case of loss
from transboundary harm arising out of hazardous activities3 of the report of the
Commission at its fifty-eighth session,
_______________
1 Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum
(A/56/10 and Corr.1), paras. 91, 94 and 97.
2 Ibid., Sixty-first Session, Supplement No. 10 (A/61/10).
3 Ibid., para. 63.
A/RES/61/36
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1. Expresses its appreciation to the International Law Commission for its
continuing contribution to the codification and progressive development of
international law;
2. Takes note of the principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities, presented by the
Commission, the text of which is annexed to the present resolution, and commends
them to the attention of Governments;
3. Decides to include in the provisional agenda of its sixty-second session
an item entitled “Consideration of prevention of transboundary harm from
hazardous activities and allocation of loss in the case of such harm”.
64th plenary meeting
4 December 2006
Annex
Principles on the allocation of loss in the case of transboundary
harm arising out of hazardous activities
The General Assembly,
Reaffirming Principles 13 and 16 of the Rio Declaration on Environment and
Development,
Recalling the draft articles on the Prevention of Transboundary Harm from
Hazardous Activities,
Aware that incidents involving hazardous activities may occur despite
compliance by the relevant State with its obligations concerning prevention of
transboundary harm from hazardous activities,
Noting that as a result of such incidents other States and/or their nationals may
suffer harm and serious loss,
Emphasizing that appropriate and effective measures should be in place to
ensure that those natural and legal persons, including States, that incur harm and
loss as a result of such incidents are able to obtain prompt and adequate
compensation,
Concerned that prompt and effective response measures should be taken to
minimize the harm and loss which may result from such incidents,
Noting that States are responsible for infringements of their obligations of
prevention under international law,
Recalling the significance of existing international agreements covering
specific categories of hazardous activities and stressing the importance of the
conclusion of further such agreements,
Desiring to contribute to the development of international law in this field,
…
A/RES/61/36
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Principle 1
Scope of application
The present draft principles apply to transboundary damage caused by
hazardous activities not prohibited by international law.
Principle 2
Use of terms
For the purposes of the present draft principles:
(a) “damage” means significant damage caused to persons, property or the
environment; and includes:
(i) loss of life or personal injury;
(ii) loss of, or damage to, property, including property which forms part of
the cultural heritage;
(iii) loss or damage by impairment of the environment;
(iv) the costs of reasonable measures of reinstatement of the property, or
environment, including natural resources;
(v) the costs of reasonable response measures;
(b) “environment” includes natural resources, both abiotic and biotic, such
as air, water, soil, fauna and flora and the interaction between the same factors, and
the characteristic aspects of the landscape;
(c) “hazardous activity” means an activity which involves a risk of causing
significant harm;
(d) “State of origin” means the State in the territory or otherwise under the
jurisdiction or control of which the hazardous activity is carried out;
(e) “transboundary damage” means damage caused to persons, property or
the environment in the territory or in other places under the jurisdiction or control of
a State other than the State of origin;
(f) “victim” means any natural or legal person or State that suffers damage;
(g) “operator” means any person in command or control of the activity at the
time the incident causing transboundary damage occurs.
Principle 3
Purposes
The purposes of the present draft principles are:
(a) to ensure prompt and adequate compensation to victims of transboundary
damage; and
(b) to preserve and protect the environment in the event of transboundary
damage, especially with respect to mitigation of damage to the environment and its
restoration or reinstatement.
Principle 4
Prompt and adequate compensation
1. Each State should take all necessary measures to ensure that prompt and
adequate compensation is available for victims of transboundary damage caused by
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hazardous activities located within its territory or otherwise under its jurisdiction or
control.
2. These measures should include the imposition of liability on the operator or,
where appropriate, other person or entity. Such liability should not require proof of
fault. Any conditions, limitations or exceptions to such liability shall be consistent
with draft principle 3.
3. These measures should also include the requirement on the operator or, where
appropriate, other person or entity, to establish and maintain financial security such
as insurance, bonds or other financial guarantees to cover claims of compensation.
4. In appropriate cases, these measures should include the requirement for the
establishment of industry-wide funds at the national level.
5. In the event that the measures under the preceding paragraphs are insufficient
to provide adequate compensation, the State of origin should also ensure that
additional financial resources are made available.
Principle 5
Response measures
Upon the occurrence of an incident involving a hazardous activity which
results or is likely to result in transboundary damage:
(a) the State of origin shall promptly notify all States affected or likely to be
affected of the incident and the possible effects of the transboundary damage;
(b) the State of origin, with the appropriate involvement of the operator, shall
ensure that appropriate response measures are taken and should, for this purpose,
rely upon the best available scientific data and technology;
(c) the State of origin, as appropriate, should also consult with and seek the
cooperation of all States affected or likely to be affected to mitigate the effects of
transboundary damage and if possible eliminate them;
(d) the States affected or likely to be affected by the transboundary damage
shall take all feasible measures to mitigate and if possible to eliminate the effects of
such damage;
(e) the States concerned should, where appropriate, seek the assistance of
competent international organizations and other States on mutually acceptable terms
and conditions.
Principle 6
International and domestic remedies
1. States shall provide their domestic judicial and administrative bodies with the
necessary jurisdiction and competence and ensure that these bodies have prompt,
adequate and effective remedies available in the event of transboundary damage
caused by hazardous activities located within their territory or otherwise under their
jurisdiction or control.
2. Victims of transboundary damage should have access to remedies in the State
of origin that are no less prompt, adequate and effective than those available to
victims that suffer damage, from the same incident, within the territory of that State.
3. Paragraphs 1 and 2 are without prejudice to the right of the victims to seek
remedies other than those available in the State of origin.
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4. States may provide for recourse to international claims settlement procedures
that are expeditious and involve minimal expenses.
5. States should guarantee appropriate access to information relevant for the
pursuance of remedies, including claims for compensation.
Principle 7
Development of specific international regimes
1. Where, in respect of particular categories of hazardous activities, specific
global, regional or bilateral agreements would provide effective arrangements
concerning compensation, response measures and international and domestic
remedies, all efforts should be made to conclude such specific agreements.
2. Such agreements should, as appropriate, include arrangements for industry
and/or State funds to provide supplementary compensation in the event that the
financial resources of the operator, including financial security measures, are
insufficient to cover the damage suffered as a result of an incident. Any such funds
may be designed to supplement or replace national industry-based funds.
Principle 8
Implementation
1. Each State should adopt the necessary legislative, regulatory and
administrative measures to implement the present draft principles.
2. The present draft principles and the measures adopted to implement them shall
be applied without any discrimination such as that based on nationality, domicile or
residence.
3. States should cooperate with each other to implement the present draft
principles.
United Nations A/RES/62/68
General Assembly Distr.: General
8 January 2008
Sixty-second session
Agenda item 84
07-46785
Resolution adopted by the General Assembly on 6 December 2007
[on the report of the Sixth Committee (A/62/452)]
62/68. Consideration of prevention of transboundary harm from
hazardous activities and allocation of loss in the case of
such harm
The General Assembly,
Recalling that the International Law Commission at its fifty-third session 1
completed the draft articles on prevention of transboundary harm from hazardous
activities and recommended to the General Assembly the elaboration of a
convention on the basis of the draft articles,
Recalling also its resolution 56/82 of 12 December 2001,
Noting that the Commission at its fifty-eighth session completed the draft
principles on allocation of loss in the case of transboundary harm arising out of
hazardous activities and recommended to the General Assembly that it endorse the
draft principles by a resolution and urge States to take national and international
action to implement them,2
Recalling its resolution 61/36 of 4 December 2006, the annex to which
contains the text of the principles on allocation of loss in the case of transboundary
harm arising out of hazardous activities,
Emphasizing the continuing importance of the codification and progressive
development of international law, as referred to in Article 13, paragraph 1 (a), of the
Charter of the United Nations,
Noting that the questions of prevention of transboundary harm from hazardous
activities and allocation of loss in the case of such harm are of major importance in
the relations of States,
Taking into account the views and comments expressed in the Sixth
Committee at the sixty-second session of the General Assembly on the prevention of
transboundary harm from hazardous activities and allocation of loss in the case of
such harm,
_______________
1 Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum
(A/56/10 and Corr.1), paras. 91, 94 and 97.
2 Ibid., Sixty-first Session, Supplement No. 10 (A/61/10), para. 63.
A/RES/62/68
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1. Welcomes the conclusion of the work of the International Law
Commission on prevention of transboundary harm from hazardous activities and
allocation of loss in the case of such harm and its adoption of the respective draft
articles and draft principles and commentaries on the subjects;
2. Expresses its appreciation to the Commission for its continuing
contribution to the codification and progressive development of international law;
3. Commends the articles on prevention of transboundary harm from
hazardous activities, presented by the Commission, the text of which is annexed to
the present resolution, to the attention of Governments, without prejudice to any
future action, as recommended by the Commission regarding the articles;
4. Commends once again the principles on the allocation of loss in the case
of transboundary harm arising out of hazardous activities, presented by the
Commission, the text of which was annexed to General Assembly resolution 61/36,
to the attention of Governments, without prejudice to any future action, as
recommended by the Commission regarding the principles;
5. Invites Governments to submit comments on any future action, in
particular on the form of the respective articles and principles, bearing in mind the
recommendations made by the Commission in that regard, including in relation to
the elaboration of a convention on the basis of the draft articles, as well as on any
practice in relation to the application of the articles and principles;
6. Decides to include in the provisional agenda of its sixty-fifth session the
item entitled “Consideration of prevention of transboundary harm from hazardous
activities and allocation of loss in the case of such harm”.
62nd plenary meeting
6 December 2007
Annex
Prevention of transboundary harm from hazardous activities
The States Parties,
Having in mind Article 13, paragraph 1 (a) of the Charter of the United
Nations, which provides that the General Assembly shall initiate studies and make
recommendations for the purpose of encouraging the progressive development of
international law and its codification,
Bearing in mind the principle of permanent sovereignty of States over the
natural resources within their territory or otherwise under their jurisdiction or
control,
Bearing in mind also that the freedom of States to carry on or permit activities
in their territory or otherwise under their jurisdiction or control is not unlimited,
Recalling the Rio Declaration on Environment and Development of 13 June
1992,
Recognizing the importance of promoting international cooperation,
Have agreed as follows:
A/RES/62/68
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Article 1
Scope
The present articles apply to activities not prohibited by international law
which involve a risk of causing significant transboundary harm through their
physical consequences.
Article 2
Use of terms
For the purposes of the present articles:
(a) “Risk of causing significant transboundary harm” includes risks taking
the form of a high probability of causing significant transboundary harm and a low
probability of causing disastrous transboundary harm;
(b) “Harm” means harm caused to persons, property or the environment;
(c) “Transboundary harm” means harm caused in the territory of or in other
places under the jurisdiction or control of a State other than the State of origin,
whether or not the States concerned share a common border;
(d) “State of origin” means the State in the territory or otherwise under the
jurisdiction or control of which the activities referred to in article 1 are planned or
are carried out;
(e) “State likely to be affected” means the State or States in the territory of
which there is the risk of significant transboundary harm or which have jurisdiction
or control over any other place where there is such a risk;
(f) “States concerned” means the State of origin and the State likely to be
affected.
Article 3
Prevention
The State of origin shall take all appropriate measures to prevent significant
transboundary harm or at any event to minimize the risk thereof.
Article 4
Cooperation
States concerned shall cooperate in good faith and, as necessary, seek the
assistance of one or more competent international organizations in preventing
significant transboundary harm or at any event in minimizing the risk thereof.
Article 5
Implementation
States concerned shall take the necessary legislative, administrative or other
action including the establishment of suitable monitoring mechanisms to implement
the provisions of the present articles.
Article 6
Authorization
1. The State of origin shall require its prior authorization for:
(a) Any activity within the scope of the present articles carried out in its
territory or otherwise under its jurisdiction or control;
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(b) Any major change in an activity referred to in subparagraph (a);
(c) Any plan to change an activity which may transform it into one falling
within the scope of the present articles.
2. The requirement of authorization established by a State shall be made
applicable in respect of all pre-existing activities within the scope of the present
articles. Authorizations already issued by the State for pre-existing activities shall
be reviewed in order to comply with the present articles.
3. In case of a failure to conform to the terms of the authorization, the State of
origin shall take such actions as appropriate, including where necessary terminating
the authorization.
Article 7
Assessment of risk
Any decision in respect of the authorization of an activity within the scope of
the present articles shall, in particular, be based on an assessment of the possible
transboundary harm caused by that activity, including any environmental impact
assessment.
Article 8
Notification and information
1. If the assessment referred to in article 7 indicates a risk of causing significant
transboundary harm, the State of origin shall provide the State likely to be affected
with timely notification of the risk and the assessment and shall transmit to it the
available technical and all other relevant information on which the assessment is
based.
2. The State of origin shall not take any decision on authorization of the activity
pending the receipt, within a period not exceeding six months, of the response from
the State likely to be affected.
Article 9
Consultations on preventive measures
1. The States concerned shall enter into consultations, at the request of any of
them, with a view to achieving acceptable solutions regarding measures to be
adopted in order to prevent significant transboundary harm or at any event to
minimize the risk thereof. The States concerned shall agree, at the commencement
of such consultations, on a reasonable time frame for the consultations.
2. The States concerned shall seek solutions based on an equitable balance of
interests in the light of article 10.
3. If the consultations referred to in paragraph 1 fail to produce an agreed
solution, the State of origin shall nevertheless take into account the interests of the
State likely to be affected in case it decides to authorize the activity to be pursued,
without prejudice to the rights of any State likely to be affected.
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Article 10
Factors involved in an equitable balance of interests
In order to achieve an equitable balance of interests as referred to in
paragraph 2 of article 9, the States concerned shall take into account all relevant
factors and circumstances, including:
(a) The degree of risk of significant transboundary harm and of the
availability of means of preventing such harm, or minimizing the risk thereof or
repairing the harm;
(b) The importance of the activity, taking into account its overall advantages
of a social, economic and technical character for the State of origin in relation to the
potential harm for the State likely to be affected;
(c) The risk of significant harm to the environment and the availability of
means of preventing such harm, or minimizing the risk thereof or restoring the
environment;
(d) The degree to which the State of origin and, as appropriate, the State
likely to be affected are prepared to contribute to the costs of prevention;
(e) The economic viability of the activity in relation to the costs of
prevention and to the possibility of carrying out the activity elsewhere or by other
means or replacing it with an alternative activity;
(f) The standards of prevention which the State likely to be affected applies
to the same or comparable activities and the standards applied in comparable
regional or international practice.
Article 11
Procedures in the absence of notification
1. If a State has reasonable grounds to believe that an activity planned or carried
out in the State of origin may involve a risk of causing significant transboundary
harm to it, it may request the State of origin to apply the provision of article 8. The
request shall be accompanied by a documented explanation setting forth its grounds.
2. In the event that the State of origin nevertheless finds that it is not under an
obligation to provide a notification under article 8, it shall so inform the requesting
State within a reasonable time, providing a documented explanation setting forth the
reasons for such finding. If this finding does not satisfy that State, at its request, the
two States shall promptly enter into consultations in the manner indicated in
article 9.
3. During the course of the consultations, the State of origin shall, if so requested
by the other State, arrange to introduce appropriate and feasible measures to
minimize the risk and, where appropriate, to suspend the activity in question for a
reasonable period.
Article 12
Exchange of information
While the activity is being carried out, the States concerned shall exchange in
a timely manner all available information concerning that activity relevant to
preventing significant transboundary harm or at any event minimizing the risk
thereof. Such an exchange of information shall continue until such time as the States
concerned consider it appropriate even after the activity is terminated.
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Article 13
Information to the public
States concerned shall, by such means as are appropriate, provide the public
likely to be affected by an activity within the scope of the present articles with
relevant information relating to that activity, the risk involved and the harm which
might result and ascertain their views.
Article 14
National security and industrial secrets
Data and information vital to the national security of the State of origin or to
the protection of industrial secrets or concerning intellectual property may be
withheld, but the State of origin shall cooperate in good faith with the State likely to
be affected in providing as much information as possible under the circumstances.
Article 15
Non-discrimination
Unless the States concerned have agreed otherwise for the protection of the
interests of persons, natural or juridical, who may be or are exposed to the risk of
significant transboundary harm as a result of an activity within the scope of the
present articles, a State shall not discriminate on the basis of nationality or residence
or place where the injury might occur, in granting to such persons, in accordance
with its legal system, access to judicial or other procedures to seek protection or
other appropriate redress.
Article 16
Emergency preparedness
The State of origin shall develop contingency plans for responding to
emergencies, in cooperation, where appropriate, with the State likely to be affected
and competent international organizations.
Article 17
Notification of an emergency
The State of origin shall, without delay and by the most expeditious means, at
its disposal, notify the State likely to be affected of an emergency concerning an
activity within the scope of the present articles and provide it with all relevant and
available information.
Article 18
Relationship to other rules of international law
The present articles are without prejudice to any obligation incurred by States
under relevant treaties or rules of customary international law.
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Article 19
Settlement of disputes
1. Any dispute concerning the interpretation or application of the present articles
shall be settled expeditiously through peaceful means of settlement chosen by
mutual agreement of the parties to the dispute, including negotiations, mediation,
conciliation, arbitration or judicial settlement.
2. Failing an agreement on the means for the peaceful settlement of the dispute
within a period of six months, the parties to the dispute shall, at the request of any
of them, have recourse to the establishment of an impartial fact-finding commission.
3. The Fact-finding Commission shall be composed of one member nominated by
each party to the dispute and in addition a member not having the nationality of any
of the parties to the dispute chosen by the nominated members who shall serve as
Chairperson.
4. If more than one State is involved on one side of the dispute and those States
do not agree on a common member of the Commission and each of them nominates
a member, the other party to the dispute has the right to nominate an equal number
of members of the Commission.
5. If the members nominated by the parties to the dispute are unable to agree on a
Chairperson within three months of the request for the establishment of the
Commission, any party to the dispute may request the Secretary-General of the
United Nations to appoint the Chairperson who shall not have the nationality of any
of the parties to the dispute. If one of the parties to the dispute fails to nominate a
member within three months of the initial request pursuant to paragraph 2, any other
party to the dispute may request the Secretary-General of the United Nations to
appoint a person who shall not have the nationality of any of the parties to the
dispute. The person so appointed shall constitute a single-member Commission.
6. The Commission shall adopt its report by a majority vote, unless it is a singlemember
Commission, and shall submit that report to the parties to the dispute
setting forth its findings and recommendations, which the parties to the dispute shall
consider in good faith.
PART IV (E): Transboundary harm from hazardous activities