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Please use this identifier to cite or link to this item: https://elib.bsu.by/handle/123456789/31769
Title: Обязательства государств по предотвращению трансграничного ущерба в международном праве
Other Titles: State Obligations to Prevent Transboundary Damage in International Law (Viktar Strachuk)
Authors: Строчук, Виктор Михайлович
Keywords: ЭБ БГУ::ОБЩЕСТВЕННЫЕ НАУКИ::Государство и право. Юридические науки
Issue Date: 2003
Publisher: Международное общественное объединение по изучению ООН и информационно-образовательным программам
Citation: Белорусский журнал международного права и международных отношений. — 2003. — № 4
Abstract: The article discusses the current status of international state obligation to prevent transboundary damage. Two approaches to the nature of this obligation can be discerned in the academic literature. One is that it is an obligation of result. However, more accepted is the view that it is an obligation of conduct, requiring to take the necessary measures exercising due diligence but not to guarantee the non-occurrence of damage. If one adopts the latter approach, one is confronted with the determination of the due diligence concept. The concept is vague; however some of its parameters enjoy support in the doctrine the documentation of the International Law Commission. The obligation to prevent transboundary damage has a complex nature and consists of several individual obligations, both material and procedural, which are analyzed in the article. Various stages of the activities connected with the risk of causing transboundary damage involve different concrete obligations. The material obligation of the states is to implement various domestic acts of legislation aimed to carry out the obligation to prevent transboundary damage. The activities causing or likely to cause transboundary damage should be regulated by international minimum standards. Due to the vagueness of the due diligence concept the procedural obligations of the states may be viewed as criteria to determine whether the state exercised due diligence in carrying out its obligation to prevent the damage. They include environmental impact assessment, notification of the planned activities, information exchange, holding consultations and negotiations. The environmental impact assessment has become the basis for fulfilling other aspects of the obligation. The consent of the affected states is required if the assessment reveals that the activities will cause transboundary damage in the course of normal operation. However, the international arbitration confirms that if the activities do not lead to the damage or only create risk of damage, then the state may allow the conduct of the activity without the consent, provided that the risk is minimized and the interests of the potentially affected states are taken into account. The interests of the other states may be said to have been observed if the proper information on activities is communicated to them. In the author's opinion, the scope of the notified states should be determined with respect to the nature of the proposed activities and its potentially harmful effects. On their request, the source state should hold consultations with the potentially affected states with the view to achieve a mutually acceptable solution. It is also necessary to keep in mind that the due fulfillment of the notification obligation cannot be objectively verified. The exact scope of information to be provided is not determined in international law. If as a result of the consultations the parties do not reach an agreed solution, the source state may proceed with the activities without the consent of the potentially affected states, after having taken into account the interests of the affected states and measures to minimize risks. The obligations to inform and hold consultations continue after the activities have been started. The analysis undertaken in the article evidences that the complex obligation to prevent transboundary damage is filled with duties of impact assessment, notification, information exchange and consultations. However, the duties are sometimes formulated rather generally and make it difficult to determine whether the state acted with due diligence in fulfilling the obligation. The fulfillment of the procedural obligations may be viewed as a criterion to determine the extent of the due diligence of the state.
Description: Раздел "Международное право", рубрика "Институт ответственности в международном праве"
URI: http://elib.bsu.by/handle/123456789/31769
Appears in Collections:Белорусский журнал международного права и международных отношений. — 2003. — № 4

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