Draft articles on
Prevention of Transboundary Harm from Hazardous Activities,
with commentaries
2001
Copyright © United Nations
2008
花瓶妻1 Report of the International Law Commission on the work of its fifty-third ssion
dispute shall, at the request of any of them, have recour to the establishment of an impartial fact-finding commission.
3. The Fact-finding Commission shall be compod 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 dis-pute chon by the nominated members who shall rve as Chair-person.
thursday. If more than one State is involved on one side of the dispute and tho States do not agree on a common member of the Com-mission 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 re-quest pursuant to paragraph 2, any other party to the dispute may request the Secretary-General of the United Nations to appoint a person wh
o 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 single-member Commission, and shall submit that report to the parties to the dispute tting forth its findings and recommendations, which the parties to the dispute shall consider in good faith.
2. t ext Of the draft artiCles
with COmmentaries theretO
98. The text of the draft articles adopted by the Commis-sion at its fifty-third ssion with commentaries thereto is reproduced below.
PREVENTION OF TRANSBOUNDARY HARM FROM HAZARDOUS ACTIVITIES
General commentary
(1) The articles deal with the concept of prevention in the context of authorization and regulation of hazardous activities which po a significant risk of transboundary harm. Prevention in this n, a
s a procedure or as a duty, deals with the pha prior to the situation where signifi-cant harm or damage might actually occur, requiring States concerned to invoke remedial or compensatory measures, which often involve issues concerning liability.
(2) The concept of prevention has assumed great sig-nificance and topicality. The emphasis upon the duty to prevent as oppod to the obligation to repair, remedy or compensate has veral important aspects. Prevention should be a preferred policy becau compensation in ca of harm often cannot restore the situation prevail-ing prior to the event or accident. Discharge of the duty of prevention or due diligence is all the more required as knowledge regarding the operation of hazardous activi-ties, materials ud and the process of managing them and the risks involved is steadily growing. From a legal point of view, the enhanced ability to trace the chain of causa-tion, i.e. the physical link between the cau (activity) and the effect (harm), and even the veral intermediate links in such a chain of causation, makes it also imperative for operators of hazardous activities to take all steps neces-sary to prevent harm. In any event, prevention as a policy is better than cure.
(3) Prevention of transboundary harm arising from haz-ardous activities is an objective well emphasized by prin-ciple 2 of the Rio Declaration on Environment and Devel-opment (Rio Declaratio
n)857 and confirmed by ICJ in its advisory opinion on the Legality of the Threat or U of Nuclear Weapons858 as now forming part of the corpus of international law.
(4) The issue of prevention, therefore, has rightly been stresd by the Experts Group on Environmental Law of the World Commission on Environment and Development (Brundtland Commission). Article 10 recommended by the Group in respect of transboundary natural resources and environmental interferences thus reads: “States shall, without prejudice to the principles laid down in articles 11 and 12, prevent or abate any transboundary environmental interference or a significant risk thereof which caus sub-stantial harm—i.e. harm which is not minor or insignifi-cant.”859 It must be further noted that the well-established principle of prevention was highlighted in the arbitral award in the Trail Smelter ca860 and was reiterated not only in principle 21 of the Declaration of the United Na-tions Conference on the Human Environment (Stockholm Declaration)861and principle 2 of the Rio Declaration, but also in General Asmbly resolution 2995 (XXVII) of 15 December 1972 on cooperation between States in the field of the environment. This principle is also reflected in principle 3 of the Principles of conduct in the field of the environment for the guidance of States in the conrvation and harmonious utilization of natural resources shared by two or more States, adopted by the Governing Council of UNEP in 1978, which provided that States must:
avoid to the maximum extent possible and ... reduce to the minimum extent possible the adver environmental effects beyond its jurisdic-tion of the utilization of a shared natural resource so as to protect the environment, in particular when such utilization might:
(a) cau damage to the environment which could have repercus-sions on the utilization of the resource by another sharing State;
(b) threaten the conrvation of a shared renewable resource;
(c) endanger the health of the population of another State. 6
Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 (United Nations publica-tion, Sales No. E.93.I.8 and corrigenda), vol. I: Resolutions adopted by the Conference, resolution 1, annex I.
Legality of the Threat or U of Nuclear Weapons (e footnote 54 above), pp. 241–242, para. 29; e also A/51/218, annex.
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9 Environmental Protection and Sustainable Development: Legal Principles and Recommendations (London, Graham and Trotman/ Martinus Nijhoff, 1987), p. 75, adopted by the Experts Group. It was
also noted that the duty not to cau substantial harm could be deduced from the non-treaty-bad practice of States, and from the statements made by States individually and/or collectively. See J. G. Lammers, Pollution of International Watercours (The Hague, Martinus Nijhoff, 1984), pp. 346–347 and 374–376.
60 Trail Smelter (e footnote 253 above), pp. 1905 et q.
61 Report of the United Nations Conference on the Human Envi-ronment, Stockholm, 5–16 June 1972(United Nations publication, Sales No. E.73.II.A.14 and corrigendum), part one, chap. I.
6 UNEP, Environmental Law: Guidelines and Principles, No. 2, Shared Natural Resources (Nairobi, 1978), p. 2. The principles are re-
International liability for injurious conquences arising out of acts not prohibited by international law 1 9
(5) Prevention of transboundary harm to the environ-ment, persons and property has been accepted as an im-portant principle in many multilateral treaties concerning protection of the environment, nuclear accidents, space objects, international watercours, management of haz-ardous wastes and prevention of marine pollution.863
Preamble
The States Parties,
Having in mind Article 13, paragraph 1 (a), of the Charter of the United Nations, which provides that the General Asmbly shall initiate studies and make recommendations for the purpo of encouraging the progressive development of international law and its codification,
Bearing in mind the principle of permanent sover-eignty of States over the natural resources within their territory or otherwi under their jurisdiction or con-trol,
Bearing also in mind that the freedom of States to carry on or permit activities in their territory or oth-erwi under their jurisdiction or control is not unlim-ited,
Recalling the Rio Declaration on Environment and Development of 13 June 1992,
英语学习辅导报官网
Recognizing the importance of promoting interna-tional cooperation,
Have agreed as follows:
Commentary
(1) The preamble ts out the general context in which the topic of prevention is elaborated, keeping in view the mandate given to the Commission to codify and develop international law. Activities covered under the prent topic of prevention require States to engage in coopera-tion and accommodation in their mutual interest. States
produced in ILM, vol. 17, No. 5 (September 1978), p. 1098. See also decision 6/14 of 19 May 1978 of the Governing Council of UNEP, Official Records of the General Asmbly, Thirty-third Session, Supple-ment No. 25 (A/33/25), annex I. For a mention of other sources where the principle of prevention is reflected, e Environmental Protection and Sustainable Development … (footnote 859 above), pp. 75–80.
6 For a collection of treaties arranged according to the area or ctor of the environment covered and protection offered against par-ticular threats, e E. Brown Weiss, D. B. Magraw and P. C. Szasz, International Environmental Law: Basic Instruments and References (Dobbs Ferry, N.Y., Transnational, 1992); P. Sands, Principles of In-ternational Environmental Law, vol. 1: Frameworks, Standards and Implementation(Manchester University Press, 1995); L. Boisson de Chazournes, R. Desgagné and C. Romano, Protection internationale de l’environnement:recueil d’instruments juridiques (Paris, Pedone, 1998);
C. Dommen and P. Cullet, eds., Droit international de l’environnement. Textes de ba et références (London, Kluwer, 1998); M. Prieur and S. Doumbé-Billé, eds., Recueil francophone des textes internationaux en droit de l’environnement (Brusls, Bruylant, 1998); A. E. Boyle and
D. Freestone, eds., International Law and Sustainable Development: Past Achievements and Future Challenges(Oxford University Press, 1999); F. L. Morrison and R. Wolfrum, eds., International, Regional and National Environmental Law(The Hague, Kluwer, 2000); and P. W. Birnie and A.
E. Boyle, International Law and the Environment, 2nd ed. (Oxford University Press, 2002) (forthcoming). are free to formulate necessary policies to develop their natural resources and to carry out or authorize activities in respon to the needs of their populations. In so doing, however, States have to ensure that such activities are car-ried out taking into account the interests of other States and therefore the freedom they have within their own jurisdiction is not unlimited.
(2) The prevention of transboundary harm from hazard-ous activities should also be en in the context of the general principles incorporated in the Rio Declaration and other considerations that emphasize the clo interrela-tionship between issues of environment and development.
A general reference in the fourth preambular paragraph to the Rio Declaration indicates the importan
ce of the inter-active nature of all the principles contained therein. This is without prejudice to highlighting specific principles of the Rio Declaration, as appropriate, in the commentaries to follow on particular articles.
Article 1. Scope
The prent articles apply to activities not prohibit-ed by international law which involve a risk of causing significant transboundary harm through their physi-cal conquences.
Commentary
brittani(1) Article 1 limits the scope of the articles to activities not prohibited by international law and which involve a risk of causing significant transboundary harm through their physical conquences. Subparagraph (d) of article 2 further limits the scope of the articles to tho activities carried out in the territory or otherwi under the jurisdic-tion or control of a State.
(2) Any activity which involves the risk of causing sig-nificant transboundary harm through the physical con-quences is within the scope of the articles. Different types of activities could be envisaged under this category. As the title of the propod articles indicates, any hazardous and by i
nference any ultrahazardous activity which involves a risk of significant transboundary harm is covered. An ul-trahazardous activity is perceived to be an activity with a danger that is rarely expected to materialize but might as-sume, on that rare occasion, grave (more than significant, rious or substantial) proportions.
(3) Suggestions have been made at different stages of the evolution of the prent articles to specify a list of activities in an annex to the prent articles with an option to make additions or deletions to such a list in the future as appropriate. States could also be given the option to add to or delete from the list items which they may include in any national legislation aimed at implementing the obligations of prevention.
(4) It is, however, felt that specification of a list of ac-tivities in an annex to the articles is not without problems and functionally not esntial. Any such list of activities is likely to be under inclusion and could become quickly
150 Report of the International Law Commission on the work of its fifty-third ssion
dated from time to time in the light of fast evolving tech-nology. Further, except for certain ultrahazardous activi-ties which are mostly the subject of special regulation, e.g. in the nuclear field o
r in the context of activities in outer space, the risk that flows from an activity is primarily a function of the particular application, the specific context and the manner of operation. It is felt that a generic list could not capture the elements.
(5) It may be further noted that it is always open to States to specify activities coming within the scope of the articles in any regional or bilateral agreements or to do so in their national legislation regulating such activities and implementing obligations of prevention.864In any ca, the scope of the articles is clarified by the four different criteria noted in the article.
(6) The first criterion to define the scope of the articles refers to “activities not prohibited by international law”. This approach has been adopted in order to parate the topic of international liability from the topic of State re-sponsibility.865 The employment of this criterion is also intended to allow a State likely to be affected by an activ-ity involving the risk of causing significant transboundary harm to demand from the State of origin compliance with obligations of prevention although the activity itlf is not prohibited. In addition, an invocation of the articles by a State likely to be affected is not a bar to a later claim by that State that the activity in question is a prohibited activity. Equally, it is to be understood that non-fulfilment of the duty of prevention at any event of the minimization of risk under the articles would not give ri to the impli-cation that the acti
vity itlf is prohibited.866However, in such a ca State responsibility could be engaged to implement the obligations, including any civil responsbi-
For example, various conventions deal with the type of activities which come under their scope: the Convention for the Prevention of Marine Pollution from Land-bad Sources; the Protocol for the Pro-tection of the Mediterranean Sea against Pollution from Land-bad Sources; the Agreement for the Protection of the Rhine against Chemi-cal Pollution; appendix I to the Convention on Environmental Impact Asssment in a Transboundary Context, where a number of activities such as the crude oil refineries, thermal power stations, installations to produce enriched nuclear fuels, etc., are identified as possibly danger-ous to the environment and requiring environmental impact asssment under the Convention; the Convention on the Protection of the Marine Environment of the Baltic Sea Area; the Convention on the Transbound-ary Effects of Industrial Accidents; annex II to the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Envi-ronment, where activities such as the installations or sites for the partial or complete disposal of solid, liquid or gaous wastes by incineration on land or at a, installations or sites for thermal degradation of solid, gaous or liquid wastes under reduced oxygen supply, etc., have been identified as dangerous activities; this Convention also has a list of dangerous substances in annex I.
6 Yearbook ... 1977, vol. II (Part Two), p. 6, para. 17.
66 See M. B. Akehurst “International liability for injurious con-quences arising out of acts not prohibited by international law”, NYIL, 1985, vol. 16, pp. 3–16; A. E. Boyle, “State responsibility and international liability for injurious conquences of acts not prohib-ited by international law: a necessary distinction?”, International and Comparative Law Quarterly, vol. 39 (1990), pp. 1–26; K. Zemanek, “State responsibility and liability”, Environmental Protection and In-ternational Law; W. Lang, H. Neuhold and K. Zemanek, eds. (London, Graham and Trotman/Martinus Nijhoff, 1991), p. 197; and the cond report on international liability for injurious conquences arising out of acts not prohibited by international law (prevention of transbound-ary damage from hazardous activities), by the Special Rapporteur, Pemmaraju Sreenivasa Rao, Yearbook ... 1999, vol. II (Part One), docu-ment A/CN.4/501, paras. 35–37.ity or duty of the operator.867 The articles are primarily concerned with the management of risk and emphasize the duty of cooperation and consultation among all States concerned. States likely to be affected are given the right of engagement with the State of origin in designing and, where appropriate, in the implementation of a system of management of risk commonly shared between or among them. The right thus envisaged in favour of the States like-ly to be affected however does not give them the right to veto the activity or project itlf.868
(7) The cond criterion, found in the definition of the State of origin in article 2, subparagraph (d), is that the ac-tivities to which preventive measures are applicable “are planned or are carried out” in the territory or otherwi under the jurisdiction or control of a State. Three concepts are ud in this criterion: “territory”, “jurisdiction” and “control”. Even though the expression “jurisdiction or control of a State” is a more commonly ud formula in some instruments,869the Commission finds it uful to mention also the concept of “territory” in order to empha-size the importance of the territorial link, when such a link exists, between activities under the articles and a State.
(8) For the purpos of the articles, territorial juris-diction is the dominant criterion. Conquently, when an activity covered by the prent articles occurs within the territory of a State, that State must comply with the ob-ligations of prevention. “Territory” is, therefore, taken as conclusive evidence of jurisdiction. Conquently, in cas of competing jurisdictions over an activity covered by the articles, the territorially bad jurisdiction pre-vails. The Commission, however, is mindful of situations where a State, under international law, has to accept limits to its territorial jurisdiction in favour of another State. The prime example of such a situation is innocent passage of a foreign ship through the territorial a. In such situations, if the activity leading to significant transboundary harm励步国际儿童教育
See P.-M. Dupuy, La responsabilité internationale des États pour les dommages d’origine technologi
que et industrielle(Paris, Pedone, 1976); Brownlie, System of the Law of Nations … (footnote 92 above); A. Rosas, “State responsibility and liability under civil liability regimes”, Current International Law Issues: Nordic Perspectives (Essays in honour of Jerzy Sztucki), O. Bring and S. Mahmoudi, eds. (Dordrecht, Martinus Nijhoff, 1994), p. 161; and F. Bitar, Les mouvements transfrontières de déchets dangereux lon la Convention de Bâle: Étude des régimes de responsabilité(Paris, Pedone, 1997), pp. 79–138. However, different standards of liability, burden of proof and remedies apply to State responsibility and liability. See also P.-M. Dupuy, “Où en est le droit international de l’environnement à la fin du siècle?”, RGDIP, vol. 101, No. 4 (1997), pp. 873–903; T. A. Berwick, “Responsi- bility and liability for environmental damage: a roadmap for international environmental regimes”, Georgetown International Environmental Law Review, vol. 10, No. 2 (1998), pp. 257–267; and P.-M. Dupuy, “À propos des mésaventures de la responsabilité internationale des États dans s rapports avec la protection internationale de l’environnement”, Les hommes et l’environnement: quels droits pour le vingt-et-unième siècle? Études en hommage à Alexandre Kiss, M. Prieur and C. Lambrechts, eds. (Paris, Frison-Roche, 1998), pp. 269–282.
6 On the nature of the duty of engagement and the attainment of a balance of interests involved, e the first report on prevention of trans-boundary damage from hazardous activities, by the Specia
l Rappor-teur, Pemmaraju Sreenivasa Rao, Yearbook ... 1998, vol. II (Part One), document A/CN.4/48
7 and Add.1, paras. 43, 44, 54 and 55 (d).
psps69 See, for example, principle 21 of the Stockholm Declaration (footnote 861 above); article 194, paragraph 2, of the United Nations Convention on the Law of the Sea; principle 2 of the Rio Declaration (footnote 857 above); and article 3 of the Convention on Biological Diversity.
International liability for injurious conquences arising out of acts not prohibited by international law 151
emanates from the foreign ship, the flag State, and not the territorial State, must comply with the provisions of the prent articles.
(9) The concept of “territory” for the purpos of the articles does not cover all cas where a State exercis “jurisdiction” or “control”. The expression “jurisdiction” of a State is intended to cover, in addition to the activities being undertaken within the territory of a State, activities over which, under international law, a State is authorized to exerci its competence and authority. The Commis-
sion is aware that questions involving the determination of jurisdiction are complex and sometimes constitute the core of a dispute. This article certainly does not presume to resolve all the questions of conflicts of jurisdiction.
(10) Sometimes, becau of the location of the activity, there is no territorial link between a State and the activity such as, for example, activities taking place in outer space or on the high as. The most common example is the ju-risdiction of the flag State over a ship. The Geneva Con-ventions on the Law of the Sea and the United Nations Convention on the Law of the Sea have covered many jurisdictional capacities of the flag State.
(11) In cas of concurrent jurisdiction by more than one State over the activities covered by the articles, States shall individually and, when appropriate, jointly comply with the provisions of the articles.
(12) The function of the concept of “control” in inter-national law is to attach certain legal conquences to a State who jurisdiction over certain activities or events is not recognized by international law; it covers situations in which a State is exercising de facto jurisdiction, even though it lacks jurisdiction de jure, such as in cas of un-lawful intervention, occupation and unlawful annex
ation. Reference may be made, in this respect, to the advisory opinion by ICJ in the Namibia ca. In that advisory opin-ion, the Court, after holding South Africa responsible for having created and maintained a situation which the Court declared illegal and finding South Africa under an obliga-tion to withdraw its administration from Namibia, never-theless attached certain legal conquences to the de facto control of South Africa over Namibia. The Court held:
The fact that South Africa no longer has any title to administer the Ter-ritory does not relea it from its obligations and responsibilities under international law towards other States in respect of the exerci of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States. 0
(13) The third criterion is that activities covered in the articles must involve a “risk of causing significant trans-boundary harm”. The term is defined in article 2 (e the commentary to article 2). The words “transboundary harm” are intended to exclude activities which cau harm only in the territory of the State within which the activity is undertaken without the possibility of any harm to any other State. For discussion of the term “significant”, e the commentary to article 2.
differential0 See footnote 176 above.(14) As to the element of “risk”, this is by definition concerned with future p
ossibilities, and thus implies some element of asssment or appreciation of risk. The mere fact that harm eventually results from an activity does not mean that the activity involved a risk, if no properly informed obrver was or could have been aware of that risk at the time the activity was carried out. On the other hand, an activity may involve a risk of causing significant transboundary harm even though tho responsible for carrying out the activity underestimated the risk or were even unaware of it. The notion of risk is thus to be taken objectively, as denoting an appreciation of possible harm resulting from an activity which a properly informed obrver had or ought to have had.
(15) In this context, it should be stresd that the arti-cles as a whole have a continuing operation and effect, i.e. unless otherwi stated, they apply to activities as carried out from time to time. Thus, it is possible that an activ-ity which in its inception did not involve any risk (in the n explained in paragraph (14)), might come to do so as a result of some event or development. For example, a perfectly safe rervoir may become dangerous as a result of an earthquake, in which ca the continued operation of the rervoir would be an activity involving risk. Or developments in scientific knowledge might reveal an in-herent weakness in a structure or materials which carry a risk of failure or collap, in which ca again the prent articles might come to apply to the activity concerned in accordance with their terms.
冠词练习题(16) The fourth criterion is that the significant trans-boundary harm must have been caud by the “physi-cal conquences” of such activities. It was agreed by the Commission that in order to bring this topic within a manageable scope, it should exclude transboundary harm which may be caud by State policies in monetary, socio-economic or similar fields. The Commission feels that the most effective way of limiting the scope of the articles is by requiring that the activities should have transbound-ary physical conquences which, in turn, result in sig-nificant harm.
(17) The physical link must connect the activity with its transboundary effects. This implies a connection of a very specific type—a conquence which does or may ari out of the very nature of the activity or situation in question. That implies that the activities covered in the articles must themlves have a physical quality, and the con-quences must flow from that quality. Thus, the stockpil-ing of weapons does not entail the conquence that the weapons stockpiled will be put to a belligerent u. Y et, this stockpiling may be characterized as an activity which, becau of the explosive or incendiary properties of the materials stored, entails an inherent risk of disastrous mis-adventure.
Article 2. U of terms
For the purpos of the prent articles:
英文抒情歌曲(a) “Risk of causing significant transboundary harm” includes risks taking the form of a high prob-ability of causing significant transboundary harm and
