The Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters was adopted and signed by 22 countries at the Ministerial Conference "Environment for Europe" in Kyiv, Ukraine, on 21 May 2003 (2 more countries signed the Protocol later in 2003).
The Protocol is open for ratification by States Parties to one or both of two conventions: the Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the Convention on the Transboundary Effects of Industrial Accidents. Any other Member State of the United Nations may accede to the Protocol, once in force, upon approval by the Meeting of the Parties to the Protocol. The Protocol will enter into force once 16 States have ratified it.
Benefits of the Protocol
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.
Negotiation of the Protocol
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 lasted 15 months and on 27 February 2003, at its seventh meeting, the Working Group finalized the draft agreement as a protocol to both Conventions.