CYIL 2011

THE POLLUTERǧPAYS PRINCIPLE IN OECD RECOMMENDATIONS … liability 21 in relation to specific fields (e.g. the Lugano Convetion, 22 Convention on Civil Liability for Oil Pollution Damage, Convention on Civil Liability for Bunker Oil Pollution Damage, Antarctica Liability Annex, 23 Basel Liability Protocol, Kyiv Liability Protocol or Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety 24 ). Certain international agreements refer to the PPP as “a general principle of international environmental law” . 25 Nevertheless, opinions vary on whether the precise status of the principle is that of a common international law or one of an emerging rule of law common to civilised nations. Accordingly, the term “principle”, as used in the PPP, does not pre-judge its status in international law. The PPP is a principle of a more programmatic nature. Only future will show whether the principle de lege ferenda will develop in a generally applicable rule, or if it remains as the only part of the lex lata of particular instruments of European law and the OECD. 26 As regards European (EC/EU) Law, the PPP was incorporated into the Treaty Establishing the European Community through the adoption of the Single European Act (Art. 130R to 130T), an idea existing at Community level since 1975. 27 The PPP is now enshrined in Art. 191 par. 2 of the Treaty of the Functioning of the European Union 28 , which states that “European Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.” Since its introduction into the Treaty, the PPP has not been defined as such in any EC/EU legal act. The Sixth 21 See Damohorský, M., Legal Responsibility for Environmental Loss. Prague : Karolinum, Charles University, 1999, or Descamps, H., Slabbinck, R., Bocken, H., International Documents on Environmental Liability . Springer Science, 2008. 22 Sobotka, M., Convention on Civil Liability for damage resulting from Activities Dangerous to the Environment and its implementation into the Czech law. In: Košičiarová, S.(ed.): Council of Europe and the Environmental Protection. Conference Proceeding . Faculty of Law TU, Trnava, 2008. 23 Annex VI to the Protocol on the Environmental Protection to the Antarctic Treaty – Liability Arising from Environmental Emergencies. For more details, cf Vícha, O., New Annex to the Madrid Protocol on Liability Arising from Environmental Emergencies in Antarctica. Czech Environmental Law , 2005, No. 2 (16), pp. 57-62. 24 See Zicha, J.: Legal Issues of Biodiversity Protection. In: Czech Environmental Law No. 1/2011 (29), p. 115-117. 25 International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC, London, 1990). The Preamble states: “Taking account of the ‘polluter pays’ principle as a general principle of international environmental law” . This agreement formally introduced for the first time the PPP in a global instrument, albeit in the Preamble. The same expression appears in the Preamble to the Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 1992). 26 Viz Šturma, P., ibid 1, at p. 24. 27 Council Recommendation 75/436/Euroatom, ECSC, EEC of 3 March 1975 regarding cost allocation and action by public authorities on environmental matters – Annex: Communication from the Commission to the Council regarding cost allocation and action by public authorities on environmental matters Principles and detailed rules governing their application (OJ, L 194, 25.7.1975, at p.1). 28 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (OJ C 83, 30.3.2010, at p.1).

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