International Law Commission International Law Commission

Last update: July 23, 2015

Analytical Guide to the Work of the International Law Commission

International liability for injurious consequences arising out of acts not prohibited by international law

See also: Summary | Texts and Instruments

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

  • 37th session of the International Law Commission (1985)
    • Survey of State Practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law, prepared by the Secretariat
  • 47th session of the International Law Commission (1995)
    • Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law: Study prepared by the Secretariat

Reports of the Working Group or Sub-Committee

  • 30th session of the International Law Commission (1978)
    • Report of the Working Group on international liability for injurious consequences arising out of acts not prohibited by international law
  • 44th session of the International Law Commission (1992)
    • Report of the Working Group on international liability for injurious consequences arising out of acts not prohibited by international law
  • 47th session of the International Law Commission (1995)
    • Report of the Working Group on dangerous activities
  • 48th session of the International Law Commission (1996)
    • Report of the Working Group
  • 49th session of the International Law Commission (1997)
    • Report of the Working Group

Reports of the Special Rapporteur

  • Four chapters: I — on the origins of the topic and the use of terms, II — on the relationship with the topic of State responsibility for wrongful acts, III — on a State's duty to respect the rights of other States to enjoy freedom from adverse outside influences, IV — on whether the scope of the topic should be limited to matters arising from the use or management of the physical environment.
    • Preliminary Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (32nd session of the ILC (1980))
  • The report contained four chapters and the text of a draft article entitled "Scope of the articles" (article 1): I — the relationship of the topic with the regime of State responsibility, referring in part to the difficulty caused by the use of the concept of "strict liability" and other similar terms; II — the intersection of harm and wrong, with a look at the Trail Smelter case; III — striking a balance of interests in regulating a transboundary harm; IV — the nature and scope of the topic on the basis of the discussions in the preceding chapters.
    • Second Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (33rd session of the ILC (1981))
  • The third report contained two chapters: I — the relationship between the schematic outline and the principles that had been identified and had gained majority support in the Commission and the Sixth Committee; II — the schematic outline of the topic.
    • Third Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (34th session of the ILC (1982))
  • Re-evaluation of the schematic outline in the light of views expressed in the Commission and in the Sixth Committee, and to provide a better and more complete commentary.
    • Fourth Report of the Special Rapporteur, Mr. Robert Q Quentin-Baxter (35th session of the ILC (1983))
  • Eight sections: proposed articles; the regulatory function; the transboundary element; the element of a physical consequence; the third element: effects upon use or enjoyment; the role of international organizations; relationship with other rules of law; and relationship with other agreements.
    • Fifth Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (36th session of the ILC (1984))
  • Preliminary Report indicating the status of the work completed thus far and the lines on which the new Special Rapporteur intended to proceed.
    • Preliminary Report of the Special Rapporteur, Mr. Julio Barboza (37th session of the ILC (1985))
  • Use of certain terms, unity of the topic, scope of the topic, schematic outline, critical analysis of the schematic outline, activities, obligations, and injury caused in the absence of a treaty regime.
    • Second Report of the Special Rapporteur, Mr. Julio Barboza (38th session of the ILC (1986))
  • Submitted six draft articles: "Scope of the present articles" (art.1), "Use of terms" (art.2), "Various cases of transboundary effects" (art.3), "Liability" (art.4), "Relationship between the present articles and other international agreements" (art.5), and "Absence of effect upon other rules of international law" (art.6).
    • Third Report of the Special Rapporteur, Mr. Julio Barboza (39th session of the ILC (1987))
  • Submitted ten draft articles contained in two chapters: "General provisions" (chap.I), including the scope of activities, use of terms, attribution, relationship between the present articles and other international agreements, and absence of effect upon other rules of international law; and "Principles" (chap.II), including freedom of action and the limits thereto, co-operation, participation, prevention, and reparation.
    • Fourth Report of the Special Rapporteur, Mr. Julio Barboza (40th session of the ILC (1988))
  • Submitted revised draft articles 1 to 9 to replace the ten articles of chapter I and II referred to the Drafting Committee at previous session, and new draft articles 10 and 17 for chapter III of the draft.
    • Fifth Report of the Special Rapporteur, Mr. Julio Barboza (41st session of the ILC (1989))
  • Proposed a complete outline of a set of 33 draft articles on the topic.
    • Sixth Report of the Special Rapporteur, Mr. Julio Barboza (42nd session of the ILC (1990))
  • Title of topic, nature of instrument, scope of topic, principle important to the topic, prevention of transboundary harm, liability for transboundary harm, and harm to the "global commons".
    • Seventh Report of the Special Rapporteur, Mr. Julio Barboza (43rd session of the ILC (1991))
  • Brief review of the status and the purpose of the articles that the Special Rapporteur had so far proposed, including a more extensive examination of the development of the principle of prevention and proposed nine articles thereto and an attempt to define the concepts of risk and harm more clearly.
    • Eighth Report of the Special Rapporteur, Mr. Julio Barboza (44th session of the ILC (1992))
  • Devoted entirely to the issues relating to the prevention of transboundary harm of activities with a risk of such harm. Described the nature and content of the concept of prevention and proposed 11 articles (art.11 to 20 bis): prior authorization (art.11), transboundary impact assessment (art.12), pre-existing activities (art.13), performance of activities (art.14), notification and information (art.15), exchange of information (art.16), national security and industrial secrets (art.17), prior consultation (art.18), rights of the State presumed to be affected (art.19), factors involved in a balance of interests (art.20), and non-transference of risk or harm (art.20 bis).
    • Ninth Report of the Special Rapporteur, Mr. Julio Barboza (45th session of the ILC (1993))
  • Dealt with three issues: prevention ex post facto, State liability and civil liability. Structure: introduction, response measures, State liability, civil liability, common provision on State liability and civil liability, procedural channels.
    • Tenth Report of the Special Rapporteur, Mr. Julio Barboza (46th session of the ILC (1994))
  • The role of harm in the articles on this topic. Characterized it as the condition sine qua non of any liability and compensation which may be due. The focus was on harm to the environment. Proposed a text for the definition of harm.
    • Eleventh Report of the Special Rapporteur, Mr. Julio Barboza (47th session of the ILC (1995))
  • Reviewed the various liability regimes proposed by the Special Rapporteur in his previous reports. Stucture/main issues: prevention; principles; liability: the schematic outline, the regime of the sixth report, the regime of the tenth report, and the Commission's options. The addendum, "Articles in order", reviewed what had been done and numbered the articles consecutively.
    • Twelfth Report of the Special Rapporteur, Mr. Julio Barboza (48th session of the ILC (1996))

Reports of the Drafting Committee

  • 45th session of the International Law Commission (1993)
    • Titles and texts adopted by the Drafting Committee on first reading: art. 1, 2, 11, 12 and 14
  • 46th session of the International Law Commission (1994)
    • Titles and texts adopted by the Drafting Committee at the forty-fifth and forty-sixth sessions of the Commission
  • 47th session of the International Law Commission (1995)
    • Titles and texts adopted by the Drafting Committee at the forty-seventh session of the Commission

Comments by Governments

  • 36th session of the International Law Commission (1984)
    • Replies received (from international organizations) in response to the questionnaire prepared by the Special Rapporteur with the assistance of the Secretariat
  • 49th session of the International Law Commission (1997)
    • Comments and observations received from Governments

Other

  • 46th session of the International Law Commission (1994)
    • Texts of draft articles with commentaries thereto, provisionally adopted by the Commission at its forty-sixth session: articles 1, 2 (subparas. (a), (b) and (c)), 11 to 14 bis [20 bis], 15–16 bis and 17–20
  • 47th session of the International Law Commission (1995)
    • Text of draft articles adopted so far by the Commission on first reading

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its twenty-sixth session, 6 May to 26 July 1974
    • The Commission decided to place the topic on its general programme of work.
  • Report of the International Law Commission on the work of its thirtieth session, 8 May to 28 July 1978
    • The Commission set up at Working Group to consider, in a preliminary manner, the scope and nature of the topic. It appointed Mr. Robert Quentin-Baxter as Special Rapporteur for the topic, and invited him to prepare a preliminary report; and requested the Secretariat to collect and survey relevant materials.
    • Discussion in Plenary: 1502nd meeting (16 June 1978), 1525th (25 July 1978) and 1527th meetings (27 July 1978)
  • Report of the International Law Commission on the work of its thirty-second session, 5 May to 25 July 1980
    • The Commission discussed the report of the Special Rapporteur.
    • Discussion in Plenary: 1630th, 1631st, 1632nd and1633rd meetings (10 to 15 July 1980)
  • Report of the International Law Commission on the work of its thirty-third session, 4 May to 24 July 1981
    • The Commission considered the second report of the Special Rapporteur.
    • Discussion in Plenary: 1685th, 1686th and 1687th meetings (6 to 9 July 1981), and 1690th meeting (14 July 1981)
  • Report of the International Law Commission on the work of its thirty-fourth session, 3 May to 23 July 1982
    • The Commission considered the third report of the Special Rapporteur.
    • Discussion in Plenary: 1735th and 1739th meetings (28 June and 5 July 1982), 1741st, 1742nd, 1743rd and 1744th meetings (7 to 12 July 1982)
  • Report of the International Law Commission on the work of its thirty-fifth session, 3 May to 22 July 1983
    • Discussed the Special Rapporteur's fourth report dealing with preliminary questions.
    • Discussion in Plenary: 1800th and 1801st meetings (11 and 12 July 1983)
  • Report of the International Law Commission on the work of its thirty-sixth session, 7 May to 27 July 1984
    • During the debate, some members devoted their main attention to the Special Rapporteur's fourth report and to questions concerning the nature of the topic and its future treatment by the Commission. Other members found it convenient to relate their remarks to the development of the topic in the Special Rapporteur's fifth report and in particular to the articles proposed in that report. Though significant differences of opinion and emphasis remained, there was almost unanimous agreement that the Commission's work on the topic, as now delineated, should continue. The Special Rapporteur was, in particular, encouraged to continue his research by reference to the full range of treaty and other materials relevant to the avoidance and repair of physical transboundary harm. The Commission took note that it was not proposed to refer draft articles 1 to 5 to the Drafting Committee at the present stage, but invited the Special Rapporteur to continue to prepare draft articles which could be considered together with draft articles 1 to 5.
    • Discussion in Plenary: 1848th, 1849th, 1850th, 1851st, 1852nd and 1853rd meetings (26 June to 3 July 1984)
  • Report of the International Law Commission on the work of its thirty-seventh session, 6 May to 26 July 1985
    • Appointed Mr. Julio Barboza Special Rapporteur to replace Mr. Quentin-Baxter. Was not able to discuss the new Special Rapporteur's Preliminary Report at the session.
    • Discussion in Plenary: 1910th, and 1928th and 1929th meetings (25 June 1985)
  • Report of the International Law Commission on the work of its thirty-eighth session, 5 May to 11 July 1986
    • The Special Rapporteur introduced both his preliminary and second reports. A brief discussion was held on the basis of these reports.
    • Discussion in Plenary: 1972nd, 1973rd, 1974th, 1975th and 1976th meetings (20 to 26 June 1986)
  • Report of the International Law Commission on the work of its thirty-ninth session, 4 May to 27 July 1987
    • The Commission had before it the Special Rapporteur's second and third reports. Extensive debate was held in the Commission on the basis of these reports, and the Special Rapporteur decided not to request that the Commission refer the six draft articles to the Drafting Committee. He drew several conclusions following the debate, inter alia, that the Commission must endeavour to fulfill the mandate of the General Assembly on this topic by regulating activities which have or may have transboundary physical consequences adversely affecting persons or things.
    • Discussion in Plenary: 2015th, 2016th, 2017th, 2018th, 2019th, 2020th, 2021st, 2022nd and 2023rd meetings (16 to 30 June 1987)
  • Report of the International Law Commission on the work of its fortieth session, 9 May to 29 July 1988
    • The Commission had before it the Special Rapporteur's fourth report, containing ten draft articles in two chapters. After the conclusion of the debate the Commission referred draft articles 1 to 10 to the Drafting Committee. The Commission invited Governments to express their views on the role which risk and harm should play in the topic.
    • Discussion in Plenary: 2044th and 2045th meetings (11 and 13 May 1988), 2047th, 2048th and 2049th meetings (18 to 20 May 1988), 2074th and 2075th meetings (6 to 7 July 1988)
  • Report of the International Law Commission on the work of its forty-first session, 2 May to 21 July 1989
    • The Commission considered the Special Rapporteur's fifth report, and referred draft articles 1 to 9 of chapters I and II to the Drafting Committee.
    • Discussion in Plenary: 2108th, 2109th, 2110th, 2111th, 2112th, 2113th and 2114th meetings (30 May to 7 June), and 2121st meeting (20 June 1989)
  • Report of the International Law Commission on the work of its forty-second session, 1 May to 20 July 1990
    • The Commission considered the Special Rapporteur's sixth report. It held extensive debate on the issue raised in the report, and decided to welcome the views of Governments on (a) clarification of the concept of significant risk by the introduction of a list of dangerous substances; and (b) whether and to what extent the draft articles should provide for liability of the State of origin for transboundary harm caused by the activities under its jurisdiction or control covered by this topic when they are conducted by private parties.
    • Discussion in Plenary: 2179th meeting (22 June 1990), 2181st, 2182nd, 2183rd, 2184th, 2185th and 2186th meetings (27 June to 4 July 1990), and 2190th meetings (10 July 1990)
  • Report of the International Law Commission on the work of its forty-third session, 29 April to 19 July 1991
    • The Commission considered the Special Rapporteur's seventh report designed to reevaluate the development of the topic in the Commission and provide opportunity for the members of the Commission to reconsider their positions and views in respect of various aspects of the topic as well as its future direction.
    • Discussion in Plenary: 2221st, 2222nd, 2223rd, 2224th, 2225th, 2226th, 2227th and 2228th meetings (7 to 21 June 1991), and 2241st meeting (12 July 1991)
  • Report of the International Law Commission on the work of its forty-fourth session, 4 May to 24 July 1992
    • The Commission considered the Special Rapporteur's eighth report, established a working group to consider certain general aspects of the topic and, on the basis of the recommendations of the Working Group took the decisions on the scope of the topic, the approach to be taken with regard to the nature of the articles or of the instrument to be drafted, title of the topic; and recomendations on the report of the Special Rapporteur for the next year, requesting him, inter alia, to examine further the issues of prevention solely in respect of activities posing a risk of causing a transboundary harm and propose a revised set of draft articles to that effect.
    • Discussion in Plenary: 2268th, 2269th, 2270th, 2271st, 2272th and 2273rd meetings (2 to 16 June 1992), and 2282nd meetings (8 July 1992)
  • Report of the International Law Commission on the work of its forty-fifth session, 3 May to 23 July 1993
    • The Commission considered the Special Rapporteur's ninth report and referred arts.11 to 20 bis together with art.10 to the Drafting Committee. The Commission took note of the report of the Drafting Committee containing the titles and texts of arts. 1, 2, 11, 12 and 14, adopted on first reading by the Drafting Committee at the current session. The Commission decided to defer action on it until its next session pending the submission of commentaries.
    • Discussion in Plenary: 2300th meeting (25 May 1993), 2302nd, 2303rd, 2304th, 2305th and 2306th meetings (1 to 11 June 1993), and 2318th meetings (13 July 1993)
  • Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994
    • The Commission deferred consideration of the Special Rapporteur's tenth report to next year. On the basis of recommendations of the Drafting Committee as submitted by the Committee at the previous and current sessions, the Commission provisionally adopted art.1 and paras. (a), (b) and (c) of art. 2 as well as 12 arts. constituting a complete set of provisions on prevention, that is: arts.11 to 14 and 14 bis [20 bis], 15, 16, 16 bis, and 17 to 20, with commentaries.
    • Discussion in Plenary: 2351st meeting (10 June 1994), and 2362nd, 2363rd, 2364th, 2365th and 2366th meetings (8 to 13 July 1994)
  • Report of the International Law Commission on the work of its forty-seventh session, 2 May to 21 July 1995
    • The Commission, after considering the Special Rapporteur's eleventh and tenth reports, established a Working Group on the topic to deal with the identification of dangerous activities. The conclusions of the Group were endorsed by the Commission in an amended form. The Commission received from the Drafting Committee four arts.: arts.A, B and D and, as a working hypothesis, art. C. It adopted the articles recommended by the Committee in an amended form, with commentaries.
    • Discussion in Plenary: 2397th, 2398th and 2399th meetings (8 to 13 June 1995), 2413th, 2414th, 2415th and 2416th meetings (7 to 13 July 1995)
  • Report of the International Law Commission on the work of its forty-eighth session, 6 May to 26 July 1996
    • The Commission, after considering the Special Rapporteur's twelfth report, decided to establish a Working Group in order to review the topic in all its aspects in the light of the reports of the Special Rapporteur and the discussions held, over the years, in the Commission and make recommendations to the Commission. The Commission decided to transmit the report of the Group (consisting of 22 draft articles and commentaries thereto) to the General Assembly for comments.
    • Discussion in Plenary: 2450th meeting (28 June 1996), 2465th meeting (19 July 1996), and 2472nd meeting (25 July 1996)
  • Report of the International Law Commission on the work of its forty-ninth session, 12 May to 18 July 1997
    • The Commission, after considering the report of the Working Group on the topic established at the present session to consider the question of how the Commission should proceed with its work on the topic, endorsed the report and decided to proceed first with the work under the subtitle "prevention of transboundary damage from hazardous activities". The Commission appointed Mr. P.S. Rao Special Rapporteur for that part of the topic, and requested him to submit a report thereon.
    • Discussion in Plenary: 2483rd meeting (27 May 1997) and 2496th meeting (19 June 1997)

General Assembly Action

  • Resolution 49/51 of 9 December 1994
    • Requested the Secretary-General to update the survey of State practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law, prepared by the Secretariat in 1984, as a useful contribution to the ongoing work of the Commission on the topic.
  • Resolution 50/45 of 11 December 1995
    • Urged the Commission at its forty-eighth session to resume the work on the topic in order to complete the first reading of the draft articles relating to activities that risk causing transboundary harm. Expressed its appreciation to the Secretary-General for the update of the survey of State practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law, first prepared by the Secretariat in 1984.
  • See topical summary of debate in the Sixth Committee (A/CN.4/472 and Add.1)
  • Resolution 51/160 of 16 December 1996
    • Encouraged Governments that may wish to do so to provide, in writing, their comments and observations on the report of the Working Group on the topic, annexed to the report of the Commission, in order that the Commission may, in the light of the report of the Group and such comments and observations and those that have been made in the Sixth Committee, consider at its forty-ninth session how to proceed with its work on the topic and make early recommendations thereon.
  • Resolution 52/156 of 15 December 1997
    • Took note of the decision of the Commission to proceed with its work on the topic, undertaking, as a first step, the issue of prevention, and reiterated its request to Governments to provide in writing, their comments and observations on the topic, including the draft articles prepared by the Working Group in 1996.
  • See topical summary of debate in the Sixth Committee (A/CN.4/483)

Final Outcome

Sub-divided into prevention of transboundary damage from hazardous activities, and international liability in case of loss from transboundary harm arising out of hazardous activities.