PRAWNOMIĘDZYNARODOWA ODPOWIEDZIALNOŚĆ ZA SZKODY TRANSGRANICZNE W ŚRODOWISKU - PROBLEM PREWENCJI
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Date
2008
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Wydział Prawa i Administracji UAM
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INTERNATIONAL LIABILITY FOR TRANSBOUNDARY ENVIRONMENTAL HARMS - THE QUESTION OF PREVENTION
Abstract
At its fifty-third session (2001), the International Law Commission finally adopted a complete
text of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities. The
Articles apply to activities not prohibited by international law, which involve a risk of causing
significant transboundary harm through their physical consequences.
“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 (Art. 2c). The scope of the Draft Articles encompasses the activities involving
a low probability of causing disastrous transboundary harm or a high probability o f causing
significant transboundary harm. International liability arises only when there is a physical link
between such an activity and its transboundary effects.
Art. 3 of the Prevention Draft imposes a general obligation to take all appropriate measures to
prevent significant transboundary harm, or at any event, to minimize the risk thereof. The state of
origin shall procure prior authorization for any activity within the scope of the Draft Articles carried
out in its territory or otherwise under its jurisdiction or control. Any decision in respect of the
authorization will be based on an assessment of the possible risk o f transboundary harm caused by
that activity, including an environmental impact assessment. If the assessment indicates a risk of
causing significant transboundary harm, the state of origin shall provide the states likely to be
affected with timely notification o f the risk. The state of origin and the states likely to be affected shall
enter into consultation, 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.
Due diligence is the criterion to assess whether the state has complied with its obligations under
the Prevention Draft.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 70, 2008, z. 2, s. 109-123
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ISSN
0035-9629