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Workshop on Transboundary Accidental Water Pollution, Liability and Compensation: Challenges and Opportunities ,
Budapest (Hungary), 21-22 May 2007
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The Protocol on Civil Liability and Compensation
for Damage Caused by the Transboundary Effects of Industrial Accidents
on Transboundary Waters was formally adopted and signed
by 22 countries at the Ministerial Conference "Environment for
Europe" in Kiev, Ukraine, on 21 May 2003.
The unique negotiation process, involving
all relevant actors - Governments, the private sector, including
industry and insurance, intergovernmental and non-governmental organizations
was initiated by the first joint
special session of the Parties to the
Convention on the Protection and Use of Transboundary Watercourses
and International Lakes and the Parties to the
Convention on the Transboundary Effects of Industrial Accidents
(Geneva, 2-3 July 2001) (ECE/MP.WAT/7-ECE/CP.TEIA/5). An
open-ended intergovernmental Working Group was established with
a mandate to draw up a legally binding instrument on civil liability
for transboundary damage caused by hazardous activities, within
the scope of both Conventions.
The Working Group held its
first meeting in Geneva on 21-23 November 2001. The negotiations
have lasted 15 months and on 27 February 2003, at its seventh meeting,
the Working Group finalized the agreement as a protocol to both
Conventions.
The Protocol will give individuals
affected by the transboundary impact of industrial
accidents on international watercourses (e.g.
fishermen or operators of downstream waterworks)
a legal claim for adequate and prompt compensation.
Companies will be liable for accidents at industrial installations,
including tailing dams, as well as during transport via pipelines.
Physical damage, damage to property, loss of income, the cost of
reinstatement and response measures will be covered by the Protocol.
The Protocol sets financial limits of liability
depending on the risk of the activity, i.e. the quantities of the
hazardous substances that are or may be present and their toxicity
or the risk they pose to the environment. To
cover this liability, companies will have to establish financial
securities, such as insurance or other guarantees.
The Protocol will ensure the non-discrimination
of victims: victims of the transboundary effects cannot be treated
less favourably than victims from the country where the accident
has occurred.
The Protocol fills one of the major gaps in international environmental
legislation and solves the problem of uncompensated damage in neighbouring
countries.
Moreover, by encouraging companies to take measures to prevent
damage they will henceforth be liable for, the Protocol will help
to prevent accidents from happening in the first place and limit
their adverse effects on people and the environment.
The financial limits of liability and the minimum
amount of financial securities have been agreed by all the actors
of the negotiation, including the insurance sector, and are therefore
realistic and appropriate. Furthermore, negotiators have drafted
the agreement in such a way as to reduce the obstacles to ratification,
taking into account the experience with other international civil
liability instruments which failed to enter into force.
The Protocol will be open for ratification by States Parties to one or both Conventions, but any other Member State of the United Nations may accede to the Protocol upon approval by the Meeting of the Parties.
The Protocol will enter into force once 16 States have ratified it.
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