Legal Remedies for Transboundary Pollution
New Horizons in Environmental and Energy Law series
Edited by Michael Faure and Song Ying
Chapter 5: ILC Proposal on the Role of Origin State in Transboundary Damage
Gou Haibo1 1 INTRODUCTION With industrialization and development of technology, there exist activities that are socially desirable and not prohibited by law, but inherently dangerous, with the potential of causing injurious consequences. Since 1978, the International Law Commission (the Commission or ILC) has considered the topic ‘International liability for injurious consequences arising out of acts not prohibited by international law’. Subsequent to the adoption of draft Articles on Prevention of Transboundary Harm from Hazardous Activities (draft Articles on Prevention)2 in 2001, the Commission adopted draft Principles on the Allocation of Loss in the Case of Transboundary Damage arising out of Hazardous Activities (the draft Principles)3 at its ﬁfty-eighth session in 2006, thus ﬁnalizing its review of the topic. The draft Principles, being general and residual in character and cast as a non-binding declaration of principles,4 propose a scheme of loss allocation of transboundary damage, spreading the loss among multiple actors. 2 LOSS ALLOCATION SCHEME PROPOSED BY ILC The draft Principles place primary liability on the operator, i.e. any person in command or control of the hazardous activity at the time the incident 1 Department of Treaty and Law, Ministry of Foreign Aﬀairs of China. The views expressed herein do not necessarily represent those of the institution the author serves. 2 ILC Report on the Work of its Fifty-third Session, pp. 366–436. 3 ILC Report on the Work of its Fifty-eighth Session, pp. 101–82. 4 General commentary to the Draft Principles, para 11, ibid. p....
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