21 October 2010
General Assembly
GA/L/3397

Department of Public Information • News and Media Division • New York

Sixty-fifth General Assembly

Sixth Committee

17th Meeting (AM)


On Issue of Transboundary Damage from Hazardous Activities,

 

Some Legal Committee Delegates Urge Study of State Practice

 


Others Argue for Eventual Codification of Principles in New Convention


When the Sixth Committee (Legal) today took up the issue of transboundary harm from hazardous activities, the discussion centred largely on how the draft articles on prevention of the harm and the draft principles on allocation of loss could be most effectively engaged, either in concert or independently of one another.


The delegate of Viet Nam said the drafts were a significant step towards the development of international law.  He also welcomed measures to ensure prompt and adequate compensation to victims, as well as the “polluter-pays” principle.  The issue of transboundary harm was of great importance in inter-State relations, and should be dealt with within a strong legal framework.


The representative of Mexico said that if the General Assembly negotiated a convention, then both draft articles and draft principles needed to be codified into a single legal instrument, in order to prevent making a distinction between prevention and allocation of loss.


The delegate of Austria urged that a working group be established to study State practice with the aim of elaborating the draft articles on transboundary harm into a convention.  However, the ultimate form of the draft principles on allocating loss should be postponed and State practice monitored for several years.


India’s delegate said although the draft articles were a useful addition to existing customary law, providing enough flexibility for States to fashion specific liability regimes, the principles should be complementary and should not prejudice the regime on State responsibility under international law.


The representative of the United Kingdom said there was no need for a convention on the prevention of transboundary harm or the allocation of loss; these issues were already covered by a number of binding sectoral and regional instruments.  The benefit of adopting a convention assuming a “one-size-fits-all” approach on these issues was questionable.


Also speaking today were the representatives of New Zealand (also for Canada and Australia), Libya, Russian Federation, Malaysia, Portugal, United States, Venezuela, and China.


The Committee will meet again at 10 a.m. tomorrow (Friday, 22 October), when the topic of the Programme of Assistance will be taken up.


Background


The Sixth Committee (Legal) met today to begin its consideration of the item on transboundary harm from hazardous activities.


Before the Committee was a report of the Secretary-General on the prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm (document A/65/184 and Add.1).  The document reviews information and comments received from Governments on any future action, in particular on the form of the draft articles of the General Assembly Resolution (document A/RES/62/68) and the elaboration of a convention based on the draft articles, as well as any practice and application of the articles and principles. As of 30 June this year, responses had been received from Austria, Belarus, Germany, Mexico, the Netherlands, New Zealand, Panama and Portugal.  The Addendum contains the response of the United States.


Statements


NATALIE RYAN (New Zealand), speaking also for Canada and Australia, said the pressure to develop many resources, some of which were limited, often led to transboundary impacts of hazardous activities.  This risk reinforced the importance of a coherent, widely-supported set of general standards of conduct and practice to address the prevention of such risks and the allocation of loss if harm resulted from those activities.  The General Assembly had already confirmed the draft articles on the prevention of transboundary harm from hazardous activities and the draft principles on allocation of loss as authoritative guidance for all States’ conduct and she was confident that, as these principles and articles were engaged, international law on these matters would continue to grow.


Commending the work of the International Law Commission, she urged that States be guided by the draft articles and principles, including when negotiating relevant bilateral agreements or sector specific multilateral agreements on the regional or global level.  In that regard, she saw no added benefit in transforming the principles and articles into a more binding form of a convention without broad and unified support from Member States.  Furthermore, she said, these draft articles and principles were potentially of more value than a convention, which might not secure widespread ratification or accession.


ALEJANDRO RODILES ( Mexico), recalling that his country had previously submitted written comments on the draft articles on transboundary harm and the draft principles on allocation of loss, said the General Assembly should continue to examine the possible promotion of a convention on the draft articles and principles.  If the General Assembly negotiated a convention, he urged that both draft articles and draft principles be codified into a single legal instrument in order to prevent making a distinction between prevention and allocation of loss.


He noted that the General Assembly had already taken significant steps, as both drafts constituted authorized guidance to all States.  This had already impacted international law through international tribunals in recent oral and written advisory opinions, including among others, the Pulp Mills in the Uruguay River case.  He stressed that work on this matter was essential in strengthening contemporary and environmental law.


ABDELRAZAG E. GOUIDER (Libya) said the issue of transboundary harm and the allocation of loss in the case of such harm was important for his country.  There were areas of the complex legal matter that were covered by instruments refined through State experience and judicial decisions, including those of the International Court of Justice.  There were other areas, however, which were outside international regulation, including transboundary shipments.  Many of those activities were very harmful to the environment and to the world community.


After examining the responsibility of States in relation to transboundary harm, he continued, the Law Commission had laid the groundwork for further development of international law with the two important instruments — the draft principles and the draft articles.  Together, they set up a solid, coherent system by which tribunals could make decisions and judgments, including the all-important International Court of Justice.  Many new areas of the issue were opening up, such as questions on how to deal with space debris.  Yet the matter remained contentious.  Further efforts should be made on the allocation of State responsibility for illicit actions that resulted in transboundary harm.


NATALIA SILKINA ( Russian Federation) said the work on transboundary harm and the allocation of loss as a result was a progressive step forward in international law.  Many provisions of the articles were both innovative and a good example of how the codification process worked over a period of time in international law.  They also showed the interconnectedness of issues covered by international law, as, for example, the linkage between the principles covering allocation of loss and the articles on responsibility of States.  Further work in the area should take into consideration the various forms of regional practice in regulating liability.  The articles could be formulated into a convention at some point in the future but it would be premature to consider the question at present.  For now, the form of the articles should be that of a declaration by the General Assembly or some other non-binding instrument.


FARHANI AHMAD TAJUDDIN ( Malaysia) said she supported in principle the international effort to strengthen the regulatory regime against transboundary harm from hazardous activities, in particular through a preventive code and principles for allocating loss and creating a harmonized compensatory scheme at the national level.  However, the articles and principles should retain their current form pending further study of State practice.  Progressive acceptance of clear and practical rules would follow more easily in the area of environmental law if the rules were non-binding.  The Secretariat should carry out a comprehensive analytical study of State responses and concerns as a basis for further action in the area.


Turning to specifics of the articles and principles, she said a number of elements were of concern.  For example, the scope of the threshold of “significant” in articles 1 to 3 should be more precisely defined.  Also, the innovative approach on compliance in article 9 was welcome, but it was unclear how States would comply with the proposed mandatory requirement for preventive consultations in the event that those consultations were unsuccessful.


She said the principle of permanent sovereignty of States over natural resources in their territory granted States the freedom to exploit those resources as appropriate.  However, the freedom was not unlimited; due consideration must be given to transboundary harm, particularly in situations were harm could be inflicted on irreplaceable ecosystems and the livelihoods they supported.

MATEUS KOWALSKI (Portugal), speaking for Miguel de Serpa Soares, Director of the Department of Legal Affairs in the Foreign Affairs Ministry of Portugal, said that the topic needed to be analysed within in the codification and progressive development of harmonious and coherent international law.  Furthermore, both the prevention of transboundary harm and the allocation of loss should be dealt with together.


He said he hoped that future work would lead to a single convention on international liability for injurious consequences arising from acts not prohibited by international law and where the responsibility of the State was adequately established with a system of compensation.  However, at this time, it would be important for the sake of coherence to achieve a complete set of draft articles or principles addressing prevention and allocation of loss.  To that end, he called for the establishment of a working group to study new developments that should be included in a draft, and to harmonize the two parts of the topic into a single instrument for future adoption.


PHAN DUY HAO ( Viet Nam) said the draft articles and the draft principles represented a significant step forward in the development of international law, and their purpose, among others, was to ensure prompt and adequate compensation to victims and to preserve and protect the environment in the event of transboundary damage.  Furthermore, he welcomed the precautionary principle and the “polluter-pays” principle, as well as the measures that ensured prompt and adequate compensation to victims.


He said he welcomed the obligation of States to strengthen cooperation, seek assistance from international organizations, facilitate exchange of information and undertake consultations in order to prevent significant transboundary harm.  He said he therefore supported the establishment of a mechanism to assist developing States to prevent and deal with the consequences of hazardous activities.  He recalled the International Law Commission’s recommendations to the General Assembly that the draft articles be elaborated into a convention and that the draft principles be endorsed by a resolution.  In this regard, he stated his support for the issue of transboundary harm from hazardous activities to be codified into the form of a treaty; this was of great importance in inter-State relations and should be dealt with within a strong legal framework.


DARIN JOHNSON ( United States) said that the International Law Commission’s work on the draft articles marked a positive step for States to establish the means to address such issues as notification in specific national and international contexts.  The work on the principles on allocation of loss also showed positive progress, incorporating progressive ideas such as the responsibilities of operators, the importance of prompt response measures and broad concepts of compensable harm, among others.


However, he went on, in terms of codifying these two issues into a single legally binding instrument, it was appropriate for the principles to take the form of non-binding standards of conduct and practice, and for the work on the prevention of transboundary harm remain in draft articles.  This would, in his view, encourage widespread acceptance.  He said that both the draft articles and draft principles went beyond the present state of international law and practice and, rather than descriptive of current law or State practice, were “clearly innovative and aspirational in character”.


ADELA LEAL PERDOMO ( Venezuela) said the Law Commission’s work in the area of transboundary harm and the allocation of loss as a result of such harm was of particular importance to States.  The principles underscored the position of the Rio Group with regard to the environment.  The form that both the articles and principles should take was a decision to be considered later, once an analysis of bilateral and regional relations between States had been conducted.  The relevant decisions already adopted should guide the work on determining the form.


BAJU BAN RIYAN ( India) said the draft articles on the prevention of transboundary harm were a useful addition to the existing customary law and provided enough flexibility for States to fashion specific liability regimes for particular sectors of activity under their jurisdiction.  The draft principles on the allocation of loss in the case of such harm were well-intended.  However, the expansion of the definition of “damage” was of concern.  A traditional civil liability regime defined damage as loss of life or property and loss caused on account of “actual damage” to the environment.  Taking into account “impairment” of the environment, as was done in the principles, would be a “stumbling block in developmental efforts”.  The principles should be complementary and should not prejudice the regime on State responsibility under international law.


Further, he said he supported the fundamental premise that the primary liability for harm arising out of hazardous activity rested with the operator, who should be required to carry adequate insurance to pay for harm caused to innocent victims.  However, a supplementary funding mechanism should be established by the applicable industry and other stakeholders.  Response measures should be required of the operator.  A supplementary residual response mechanism could be provided by a State based on ability to undertake such measures.


DOUGLAS WILSON ( United Kingdom) said that his country saw no need for a convention on the prevention of transboundary harm or the allocation of loss, pointing out that theses issues were covered by a number of binding sectoral and regional instruments.  The European Union directives on environmental impact and liability reflected the articles and the principles on transboundary harm.  The “Espoo Convention”, to which the United Kingdom was party, established States’ obligation to assess environmental impact of certain activities and notify and consult other States in the likelihood of significant adverse transboundary environmental impact.  There were also extensive regimes governing liability for nuclear incidents, including, among others the Paris Convention.


The benefit of adopting a convention that “assumes a one size fits all” on these issues was questionable and he stated that there was an advantage in subject specific initiatives that could be tailored to address different activities and potential harms.  Thus a convention was “neither necessary nor desirable” and he called for the articles and principles to remain as non-binding guidance.


GUO XIAOMEI ( China), in addressing the draft articles and principles, said the definition of “state of origin” did not meet the needs of practice.  Important parameters in identifying state of origin needed to take into account the nationality of the operator, the host State of the operator’s business and the host State of the entity that commanded or controlled operations, among other factors.  She also suggested additional provisions of exception to or exemption from the obligation of prevention in the draft articles, as, for example, in the case of natural disaster; the State of origin would be entitled to be exempted from relevant prevention obligations.


As for the final form of these draft articles and principles, she noted the International Law Commissions recommendations to the General Assembly for a convention based on the draft articles and a resolution endorsing the draft principles.  She said uniform action should be taken toward them, since they were so closely linked.  However, she urged that future work focus on collecting and observing the development of State practice; when “conditions are ripe” the possibility of a convention could be revisited.


ULRIKE KÖHLER ( Austria) said State practice should serve as the foundation for considering the form the draft articles on transboundary harm should take.  Reports on State practice, together with the draft articles, could then form the basis for discussions in a working group aimed at elaborating the articles into a convention.  On the other hand, he added, the draft principles on allocating loss due to such harm did not allow for such an approach in their present form.  A decision on their ultimate form should be postponed and State practice monitored for developments.  The question should be taken up again in six years.


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For information media • not an official record