Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities

A/RES/61/36No PDF available

Who created this mandate?

A Resolution of the General Assembly, under agenda item 78Report of the International Law Commission on the work of its 58th session, published in 2006.

What subjects does this mandate have?

9 topics

Compensation Environmental Damage Environmentally Hazardous Activities International Law International Law Codification Legal Remedies Liability Principles Transboundary Environmental Impact

What does this mandate say?

23 operative paragraphs

Expresses its appreciation to the International Law Commission for its continuing contribution to the codification and progressive development of international law;

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;

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”.

Principle 1Scope of application

Principle 2Use of terms

Principle 3Purposes

Principle 4Prompt and adequate compensation

Each State should take all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage caused by hazardous activities located within its territory or otherwise under its jurisdiction or control.

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.

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.

In appropriate cases, these measures should include the requirement for the establishment of industry-wide funds at the national level.

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 5Response measures

Upon the occurrence of an incident involving a hazardous activity which results or is likely to result in transboundary damage:

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;

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;

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;

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;

the States concerned should, where appropriate, seek the assistance of competent international organizations and other States on mutually acceptable terms and conditions.

Principle 6International and domestic remedies

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.

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.

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.

States may provide for recourse to international claims settlement procedures that are expeditious and involve minimal expenses.

States should guarantee appropriate access to information relevant for the pursuance of remedies, including claims for compensation.

Principle 7Development of specific international regimes

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.

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 8Implementation

Each State should adopt the necessary legislative, regulatory and administrative measures to implement the present draft principles.

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.

States should cooperate with each other to implement the present draft principles.

Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities

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