Statement By Mr Scott Sheeran, Second Secretary For The New Zealand Permanent Mission To The United Nations On Item: 84: Consideration Of Prevention Of Transboundary Harm From Hazardous Activities And Allocation Of Loss In The Case Of Such Harm
23 OCTOBER 2007
(As Delivered)
Mr Chairman,
I have the honour to speak on behalf of Australia, Canada and New Zealand. International liability for transboundary harm is an issue in which the CANZ countries have long had an interest.
We would like to thank the Commission and the various Special Rapporteurs, including most recently Mr P.S. Rao, for their excellent work on this topic.
As the General Assembly has already noted and commended the principles on allocation of loss in its resolution 61/36, we consider a central issue for this session is what action should be taken regarding the draft articles on prevention of transboundary harm, which were completed in 2001. CANZ considers these draft articles provide a valuable framework of obligations that should be recognized by States in whose territory or jurisdiction hazardous activities are undertaken.
We note the particularly useful elements included in the draft articles: the clear statement of the originating States’ obligation to take all appropriate measures to prevent significant transboundary harm; the application to activities not prohibited by international law but which involve a risk of causing significant transboundary harm; the application to both common land and maritime boundaries; the elaboration of factors for equitable balancing of interests in finding solutions where problems do arise; the establishment of notification and consultation procedures for activities involving a risk of causing significant transboundary harm; and elaboration of a dispute settlement mechanism for resolving disputes, including recourse to an independent fact-finding commission.
We consider there is scope for further evolution of thinking. It is important, for example, not to restrict risk situations artificially to those where there is a high probability of significant transboundary harm, or a low probability of disastrous transboundary harm. There could be medium-risk situations in which preventive action is justified. It is important in such situations to consider what action should reasonably be taken.
In 2001, the Sixth Committee decision not to take action on the draft articles reflected a need to weigh carefully the close relationship between the prevention and liability aspects of this topic. Accordingly, we welcomed the decision to reserve further action until the liability topic was completed, which it subsequently was in 2006, with the principles on allocation of loss.
Mr Chairman,
CANZ has continued to consider the best way forward for this topic. In our view, without broad and unified support, it would not be helpful to try and progress to a convention based on the draft articles. CANZ supports, rather, the General Assembly welcoming the articles and commending them to the attention of Member States without prejudice to their future use in a convention.
CANZ also supports the General Assembly encouraging States to be guided by the articles in the conduct of their relations, in particular, when negotiating relevant agreements at bilateral and multilateral levels. We would support similar encouragement for the principles on allocation of loss. We would not object if there was a desire to place the draft articles on the provisional agenda of a future session of this body, preferably a session in which other Commission topics may come up for review.
We consider this approach would usefully progress a very important topic, and also help encourage a more consistent, coherent and fair international legal regime for transboundary harm from hazardous activities.
Thank you, Mr Chairman