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Haibo, Gou --- "ILC Proposal on the Role of Origin State in Transboundary Damage" [2008] ELECD 346; in Faure, Michael; Ying, Song (eds), "China and International Environmental Liability" (Edward Elgar Publishing, 2008)

Book Title: China and International Environmental Liability

Editor(s): Faure, Michael; Ying, Song

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207524

Section: Chapter 5

Section Title: ILC Proposal on the Role of Origin State in Transboundary Damage

Author(s): Haibo, Gou

Number of pages: 20

Extract:

5. ILC proposal on the role of origin
state in transboundary damage
Gou Haibo1

1 INTRODUCTION

With industrialization and development of technology, there exist activi-
ties 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 mul-
tiple 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. 366­436.
3 ILC Report on the Work of ...