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Prevention of Transboundary Harm

prevention of transboundary harm from hazardous activities 2001 copyright © united natio
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Prevention of Transboundary Harm from Hazardous Activities
2001


Copyright © United Nations
2005
Prevention of Transboundary Harm from Hazardous Activities
The States Parties,
Having in mind Article 13, paragraph 1 (a), of the Charter of the
United Nations, which provides that the General Assembly shall
initiate studies and make recommendations for the purpose of
encouraging the progressive development of international law and its
codification,
Bearing in mind the principle of permanent sovereignty of States over
the natural resources within their territory or otherwise under their
jurisdiction or control,
Bearing also in mind that the freedom of States to carry on or permit
activities in their territory or otherwise under their jurisdiction or
control is not unlimited,
Recalling the Rio Declaration on Environment and Development of 13
June 1992,
Recognizing the importance of promoting international cooperation,
Have agreed as follows:
Article 1
Scope
The present articles apply to activities not prohibited by
international law which involve a risk of causing significant
transboundary harm through their physical consequences.
Article 2
Use of terms
For the purposes of the present articles:
(a) “risk of causing significant transboundary harm” includes risks
taking the form of a high probability of causing significant
transboundary harm and a low probability of causing disastrous
transboundary harm;
(b) “harm” means harm caused to persons, property or the environment;
(c) “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;
(d) “State of origin” means the State in the territory or otherwise
under the jurisdiction or control of which the activities referred to
in article 1 are planned or are carried out;
(e) “State likely to be affected” means the State or States in the
territory of which there is the risk of significant transboundary harm
or which have jurisdiction or control over any other place where there
is such a risk;
(f) “States concerned” means the State of origin and the State likely
to be affected.
Article 3
Prevention
The State of origin shall take all appropriate measures to prevent
significant transboundary harm or at any event to minimize the risk
thereof.
Article 4
Cooperation
States concerned shall cooperate in good faith and, as necessary, seek
the assistance of one or more competent international organizations in
preventing significant transboundary harm or at any event in
minimizing the risk thereof.
Article 5
Implementation
States concerned shall take the necessary legislative, administrative
or other action, including the establishment of suitable monitoring
mechanisms to implement the provisions of the present articles.
Article 6
Authorization
1. The State of origin shall require its prior authorization for:
(a) any activity within the scope of the present articles carried out
in its territory or otherwise under its jurisdiction or control;
(b) any major change in an activity referred to in subparagraph (a);
(c) any plan to change an activity which may transform it into one
falling within the scope of the present articles.
2. The requirement of authorization established by a State shall be
made applicable in respect of all preexisting activities within the
scope of the present articles. Authorizations already issued by the
State for preexisting activities shall be reviewed in order to comply
with the present articles.
3. In case of a failure to conform to the terms of the authorization,
the State of origin shall take such actions as appropriate, including
where necessary terminating the authorization.
Article 7
Assessment of risk
Any decision in respect of the authorization of an activity within the
scope of the present articles shall, in particular, be based on an
assessment of the possible transboundary harm caused by that activity,
including any environmental impact assessment.
Article 8
Notification and information
1. If the assessment referred to in article 7 indicates a risk of
causing significant transboundary harm, the State of origin shall
provide the State likely to be affected with timely notification of
the risk and the assessment and shall transmit to it the available
technical and all other relevant information on which the assessment
is based.
2. The State of origin shall not take any decision on authorization of
the activity pending the receipt, within a period not exceeding six
months, of the response from the State likely to be affected.
Article 9
Consultations on preventive measures
1. The States concerned shall enter into consultations, 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 or at any event to minimize the risk thereof. The
States concerned shall agree, at the commencement of such
consultations, on a reasonable time frame for the consultations.
2. The States concerned shall seek solutions based on an equitable
balance of interests in the light of article 10.
3. If the consultations referred to in paragraph 1 fail to produce an
agreed solution, the State of origin shall nevertheless take into
account the interests of the State likely to be affected in case it
decides to authorize the activity to be pursued, without prejudice to
the rights of any State likely to be affected.
Article 10
Factors involved in an equitable balance of interests
In order to achieve an equitable balance of interests as referred to
in paragraph 2 of article 9, the States concerned shall take into
account all relevant factors and circumstances, including:
(a) the degree of risk of significant transboundary harm and of the
availability of means of preventing such harm, or minimizing the risk
thereof or repairing the harm;
(b) the importance of the activity, taking into account its overall
advantages of a social, economic and technical character for the State
of origin in relation to the potential harm for the State likely to be
affected;
(c) the risk of significant harm to the environment and the
availability of means of preventing such harm, or minimizing the risk
thereof or restoring the environment;
(d) the degree to which the State of origin and, as appropriate, the
State likely to be affected are prepared to contribute to the costs of
prevention;
(e) the economic viability of the activity in relation to the costs of
prevention and to the possibility of carrying out the activity
elsewhere or by other means or replacing it with an alternative
activity;
(f) the standards of prevention which the State likely to be affected
applies to the same or comparable activities and the standards applied
in comparable regional or international practice.
Article 11
Procedures in the absence of notification
1. If a State has reasonable grounds to believe that an activity
planned or carried out in the State of origin may involve a risk of
causing significant transboundary harm to it, it may request the State
of origin to apply the provision of article 8. The request shall be
accompanied by a documented explanation setting forth its grounds.
2. In the event that the State of origin nevertheless finds that it is
not under an obligation to provide a notification under article 8, it
shall so inform the requesting State within a reasonable time,
providing a documented explanation setting forth the reasons for such
finding. If this finding does not satisfy that State, at its request,
the two States shall promptly enter into consultations in the manner
indicated in article 9.
3. During the course of the consultations, the State of origin shall,
if so requested by the other State, arrange to introduce appropriate
and feasible measures to minimize the risk and, where appropriate, to
suspend the activity in question for a reasonable period.
Article 12
Exchange of information
While the activity is being carried out, the States concerned shall
exchange in a timely manner all available information concerning that
activity relevant to preventing significant transboundary harm or at
any event minimizing the risk thereof. Such an exchange of information
shall continue until such time as the States concerned consider it
appropriate even after the activity is terminated.
Article 13
Information to the public
States concerned shall, by such means as are appropriate, provide the
public likely to be affected by an activity within the scope of the
present articles with relevant information relating to that activity,
the risk involved and the harm which might result and ascertain their
views.
Article 14
National security and industrial secrets
Data and information vital to the national security of the State of
origin or to the protection of industrial secrets or concerning
intellectual property may be withheld, but the State of origin shall
cooperate in good faith with the State likely to be affected in
providing as much information as possible under the circumstances.
Article 15
Nondiscrimination
Unless the States concerned have agreed otherwise for the protection
of the interests of persons, natural or juridical, who may be or are
exposed to the risk of significant transboundary harm as a result of
an activity within the scope of the present articles, a State shall
not discriminate on the basis of nationality or residence or place
where the injury might occur, in granting to such persons, in
accordance with its legal system, access to judicial or other
procedures to seek protection or other appropriate redress.
Article 16
Emergency preparedness
The State of origin shall develop contingency plans for responding to
emergencies, in cooperation, where appropriate, with the State likely
to be affected and competent international organizations.
Article 17
Notification of an emergency
The State of origin shall, without delay and by the most expeditious
means, at its disposal, notify the State likely to be affected of an
emergency concerning an activity within the scope of the present
articles and provide it with all relevant and available information.
Article 18
Relationship to other rules of international law
The present articles are without prejudice to any obligation incurred
by States under relevant treaties or rules of customary international
law.
Article 19
Settlement of disputes
1. Any dispute concerning the interpretation or application of the
present articles shall be settled expeditiously through peaceful means
of settlement chosen by mutual agreement of the parties to the
dispute, including negotiations, mediation, conciliation, arbitration
or judicial settlement.
2. Failing an agreement on the means for the peaceful settlement of
the dispute within a period of six months, the parties to the dispute
shall, at the request of any of them, have recourse to the
establishment of an impartial factfinding commission.
3. The Factfinding Commission shall be composed 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 dispute chosen by
the nominated members who shall serve as Chairperson.
4. If more than one State is involved on one side of the dispute and
those States do not agree on a common member of the Commission 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 SecretaryGeneral 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 request pursuant to
paragraph 2, any other party to the dispute may request the
SecretaryGeneral of the United Nations to appoint a person who shall
not have the nationality of any of the parties to the dispute. The
person so appointed shall constitute a singlemember Commission.
6. The Commission shall adopt its report by a majority vote, unless it
is a singlemember Commission, and shall submit that report to the
parties to the dispute setting forth its findings and recommendations,
which the parties to the dispute shall consider in good faith.

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