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Harm to the Environment: The Right to Compensation and the Assessment of Damages

By Peter Wetterstein | Go to book overview

4
The ILC and Environmental Damage

JULIO BARBOZA


1. INTRODUCTION

The concept of environmental damage was introduced in the International Law Commission's (ILC) draft articles proposed by the Special Rapporteur on Liability for the Injurious Consequences Arising Out of Acts Not Prohibited by International Law.1 In his Fifth Report ( 1989), paragraph (c) of Article 2 included, within the meaning of 'transboundary harm', the physical consequences of activities referred to in Article 1 which were 'appreciably detrimental to . . . the use or enjoyment of areas or to the environment'.2

In his Eighth Report, a new paragraph in Article 2 (meaning of terms) was proposed, which reads as follows:

'Damage' means: (a) any loss of life, impairment of health or any personal injury; (b) damage to property; (c) detrimental alteration of the environment, provided that the corresponding compensation would comprise, in addition to loss of profit, the cost of reasonable reinstatement or restorative measures actually taken or to be taken; (d) the cost of preventive measures and additional harm caused by such measures.3

Another paragraph was introduced: ' "[r]estorative measures" means reasonable measures to reinstate or restore damaged or destroyed components of the environment, or to reintroduce, when reasonable, the equivalent of those components into the environment.' The ensuing debate on that proposal, which is summarized in paragraphs 337 to 340 of the ILC Report to the General Assembly,4

____________________
1
The Special Rapporteur for that topic is the author of this article.
2
Activities referred to in Art. 1 were, in that version of the draft, those activities the physical consequences of which caused, or created an appreciable risk of causing, transboundary harm. Later on, the Commission decided to consider first only the activities which create a significant risk of such harm, and leave those which cause transboundary harm for a later stage: Yearbook of the International Law Commission ( 1989), ii, Part 1, at 135. Para. 33 of the commentary reads: '[a] reference to the environment has been added after the "persons and objects" and "the use or enjoyment of areas" to which harm may be caused. Although it could be considered covered by the earlier definition, it is felt that the environment has become such a major concern that it must be included in the definition of harm in order to leave no room for doubt that the draft seeks also to protect the environment', at 137.
3
UN General Assembly Document A/CN.4/443, 15 Apr. 1992, at 32.
4
Yearbook of the International Law Commission ( 1992), ii, Part 2, at 50-1 and n. 118.

-73-

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