International Law Commission International Law Commission

Last update: July 28, 2017

Analytical Guide to the Work of the International Law Commission

International liability in case of loss from transboundary harm arising out of hazardous activities

See also: Summary | Texts and Instruments

Mandate

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

  • 56th session of the International Law Commission (2004)
    • Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities) — Prepared by the Secretariat

Reports of the Working Group or Sub-Committee

  • 54th session of the International Law Commission (2002)
    • Report of the Working Group on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (International Liability for Failure to Prevent Loss from Transboundary Harm Arising out of Hazardous Activities)
  • 56th session of the International Law Commission (2004)
    • Report of the Working Group on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (International Liability for Failure to Prevent Loss from Transboundary Harm Arising out of Hazardous Activities)

Reports of the Special Rapporteur

  • Review of the International Law Commission's treatment of the topic in its earlier phase of consideration of the topic. Examined the approaches of Special Rapporteurs Mr. Robert Q. Quentin-Baxter and Mr. Julio Barboza. Highlighted the outstanding issues related to the international liability regime and some policy considerations. Further discussed the allocation of loss, analysing both sectoral and regional treaties, agreements, conventions and regulations, listing some features common to the different models of allocation of loss and touched upon some elements of civil liability.
    • First Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao, (55th session of the ILC (2003))
  • The report analysed comments of States on the main issues concerning allocation of loss. It drew general conclusions in the light of the said comments as well as previous debates in the Commission. In his report, the Special Rapporteur also submitted a set of 12 draft principles.
    • Second Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao, (56th session of the ILC (2004))
  • Analysis of the issues to be addressed by the Commission on second reading of the draft principles in the light of comments and observations by Governments.
    • Third Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao, (58th session of the ILC (2006))

Reports of the Drafting Committee

  • 56th session of the International Law Commission (2004)
    • Report of the Drafting Committee on international liability for injurious consequences arising out of acts not prohibited by international law (International liability in case of loss from transboundary harm arising out of hazardous activities)
  • 58th session of the International Law Commission (2006)
    • Title and texts of the preamble and the draft principles on the allocation of loss arising out of hazardous activities adopted by the Drafting Committee on second reading
    • Statement of the Drafting Committee Chairman

Comments by Governments

  • 58th session of the International Law Commission (2006)
    • Comments and observations received from Governments

Other

None

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its fifty-fourth session, 29 April –7 June and 22 July–16 August 2002
    • The Commission resumed its consideration of the second part of the topic related to international liability for failure to prevent loss from transboundary harm arising out of hazardous activities. It established a Working Group. The Working Group submitted a report that was subsequently considered, amended and adopted by the Commission. Finally, the Commission appointed Mr. Pemmaraju Sreenivasa Rao as Special Rapporteur for the topic.
    • Discussion in Plenary: 2717th meeting (8 May 2002), and 2743rd and 2744th meetings (8 and 9 August 2002)
  • Report of the International Law Commission on the work of its fifty-fifth session, 5 May–6 June and 7 July–8 August 2003
    • The Commission considered the First Report of the Special Rapporteur on the legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities. It established an open-ended working group under the chairmanship of the Special Rapporteur in order to assist him in considering the future orientation of the topic in the light of his report and the debate in the Commission.
    • Discussion in Plenary: 2762nd, 2763rd, 2764th, 2765th, 2766th, 2767th, 2768th and 2769th meetings (23, 27, 28, 30 May and 3 to 6 June 2003)
  • Report of the International Law Commission on the work of its fifty-sixth session, 3 May–4 June and 5 July–6 August 2004
    • The Commission had before it the second report of the Special Rapporteur on the legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities. The Commission also had the Survey of Liability Regimes relevant to the topic, updated by the Secretariat. The Commission established a working group under the chairmanship of Mr. Pemmaraju Sreenivasa Rao to examine the proposals submitted by the Special Rapporteur, taking into account the debate in the Commission, with view to recommending draft principles ripe for referral to the Drafting Committee, while also continuing discussions on other issues, including the form that work on the topic should take. In its work the Working Group reviewed and revised the 12 draft principles submitted by the Special Rapporteur and it recommended that the 8 draft principles contained in its report be referred to the Drafting Committee. The Commission received the oral report of the Chairman of the Working Group and decided to refer the eight draft principles to the Drafting Committee. The Commission also requested the Drafting Committee to prepare a text of a preamble.
    • The Commission subsequently considered the report of the Drafting Committee and adopted on first reading a set of eight draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities. The Commission also decided, in accordance with articles 16 and 21 of its Statute to transmit the draft principles through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2006.
    • Discussion in Plenary: 2804th, 2805th, 2807th, 2808th, 2809th (26 and 27 May and 1, to 3 June 2004), 2815th (9 July 2004), 2822nd (23 July 2004), 2828th and 2829th meetings (4 to 5 August 2004)
  • Report of the International Law Commission on the work of its fifty-eighth session, 1 May–9 June and 3 July–11 August 2006
    • The Commission had before it the third report of the Special Rapporteur as well as comments and observations received from Governments.
    • The Commission subsequently adopted on second reading the text of the preamble and a set of eight draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, with commentaries. The Commission recalled that at its forty-ninth session (1997) it decided to consider the topic in two parts; at its fifty-third session (2001) it completed the first part and recommended to the General Assembly the elaboration of a convention on the basis of the draft articles on Prevention of transboundary harm from hazardous activities. The Commission’s recommendation was based on its view that, taking into account the existing State practice, the first part of the topic lent itself to codification and progressive development through a convention. The adoption by the Commission of the draft principles on the Allocation of loss in the case of transboundary harm arising out of hazardous activities completed the second part, thus concluding work on the topic “International liability for injurious consequences arising out of acts not prohibited by international law”. In accordance with article 23 of its Statute the Commission recommended, for the second part, that the Assembly endorse the draft principles by a resolution and urge States to take national and international action to implement them.
    • Discussion in Plenary: 2872nd, 2873rd, 2874th and 2875th meetings, held on 9, 10, 11 and 12 May 2006, 2882nd meeting, on 2 June 2006, and 2909th and 2910th meetings, held on 8 August 2006
  • ILC Report, A/61/10, 2006, chap. V, paras. 51–67
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/577, Add.1 and Add.2)

General Assembly Action

  • 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)
  • Resolution 53/102 of 8 December 1998
    • Requested the Commission, while continuing its work on prevention, to examine other issues arising out of the topic, taking into account comments made by Governments, either in writing or in the Sixth Committee, and to submit its recommendations on the future work to be done on these issues to the Sixth Committee.
  • See topical summary of debate in the Sixth Committee (A/CN.4/496)
  • Resolution 54/111 of 9 December 1999
    • Requested the Commission to resume consideration of the liability aspects of the topic as soon as the second reading of the draft articles on prevention is finalized, taking into account developments in international law and comments by Governments.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/504 and Add.1)
  • Resolution 55/152 of 12 December 2000
    • Requested the Commission to resume consideration of the liability aspects of the topic as soon as the second reading of the draft articles on the prevention of transboundary damage from hazardous activities was completed, bearing in mind the interrelationship between the prevention and liability aspects of the topic and taking into account developments in international law and comments by Governments.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/513)
  • Resolution 56/82 of 12 December 2001
    • Requested the Commission, taking into consideration its decision at its forty-ninth session to proceed with its work on the topic of "International liability for injurious consequences arising out of acts not prohibited by international law, undertaking, as a first step, the issue of prevention, to resume, during its fifty-fourth session, its consideration of the liability aspects of the topic, bearing in mind the interrelationship between the prevention and liability aspects of the topic and taking into account developments in international law and comments by Governments.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/521 and Corr.1)
  • Resolution 57/21 of 19 November 2002
    • Took note of the decision of the International Law Commission to proceed with its work on the topic "international liability for injurious consequences arising out of acts not prohibited by international law", as requested by the General Assembly in its resolution 56/82 of 12 December 2001.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/529)
  • Resolution 59/41 of 2 December 2004
    • Expressed its appreciation to the International Law Commission for the completion of the first reading of the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities.
    • Drew the attention of Governments to the importance for the International Law Commission of having their views on the draft principles on Allocation of loss in the case of transboundary harm arising out of hazardous activities.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/549 and Add.1)
  • Resolution 61/34 of 4 December 2006
    • Expressed its appreciation to the International Law Commission for the completion of the second reading of the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities under the topic “International liability for injurious consequences arising out of acts not prohibited by international law (International liability in case of loss for transboundary harm arising out of hazardous activities)”.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/577, Add.1 and Add.2)

Final Outcome

International Law Commission (58th session, 2006)

  • The Commission adopted on second reading the text of the preamble and a set of eight draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, with commentaries.
  • The Commission recalled that at its forty-ninth session (1997) it decided to consider the topic in two parts; at its fifty-third session (2001) it completed the first part and recommended to the General Assembly the elaboration of a convention on the basis of the draft articles on Prevention of transboundary harm from hazardous activities. The Commission’s recommendation was based on its view that, taking into account the existing State practice, the first part of the topic lent itself to codification and progressive development through a convention. The adoption by the Commission of the draft principles on the Allocation of loss in the case of transboundary harm arising out of hazardous activities completed the second part, thus concluding work on the topic “International liability for injurious consequences arising out of acts not prohibited by international law”. In accordance with article 23 of its Statute the Commission recommended, for the second part, that the Assembly endorse the draft principles by a resolution and urge States to take national and international action to implement them.
 

General Assembly

  • Resolution 61/36 of 4 December 2006
    • Took note of the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, presented by the Commission, the text of which was annexed to the resolution, and commended them to the attention of Governments.
    • Decided to include in the provisional agenda of its sixty-second session an item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/577, Add.1 and Add.2)
  • Resolution 62/68 of 6 December 2007
    • Welcomed the conclusion of the work of the International Law Commission on prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm and its adoption of the respective draft articles and draft principles and commentaries on the subjects.
    • Commended the articles on prevention of transboundary harm from hazardous activities, presented by the Commission, the text of which wais annexed to the resolution, to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the articles.
    • Commended once again the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, presented by the Commission, the text of which was annexed to General Assembly resolution 61/36, to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the principles;
    • Invited Governments to submit comments on any future action, in particular on the form of the respective articles and principles, bearing in mind the recommendations made by the Commission in that regard, including in relation to the elaboration of a convention on the basis of the draft articles, as well as on any practice in relation to the application of the articles and principles;
    • Decided to include in the provisional agenda of its sixty-fifth session the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.
  • See the website of the Sixth Committee of the General Assembly
  • Resolution 65/28 of 6 December 2010
    • Commended once again the articles on prevention of transboundary harm from hazardous activities, the text of which was annexed to General Assembly resolution 62/68, to the attention of Governments, without prejudice to any future action, as recommended by the International Law Commission regarding the articles.
    • Also commended once again the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, the text of which was annexed to General Assembly resolution 61/36, to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the principles;
    • Invited Governments to submit further comments on any future action, in particular on the form of the respective articles and principles, bearing in mind the recommendations made by the Commission in that regard, including in relation to the elaboration of a convention on the basis of the draft articles, as well as on any practice in relation to the application of the articles and principles;
    • Requested the Secretary-General to submit a compilation of decisions of international courts, tribunals and other bodies referring to the articles and the principles;
    • Decided to include in the provisional agenda of its sixty-eighth (2013) session the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.
  • See the website of the Sixth Committee of the General Assembly
  • Resolution 68/114 of 16 December 2013
    • Commended once again the articles on prevention of transboundary harm from hazardous activities, the text of which was annexed to General Assembly resolution 62/68, to the attention of Governments, without prejudice to any future action, as recommended by the International Law Commission regarding the articles.
    • Also commended once again the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, the text of which was annexed to General Assembly resolution 61/36, to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the principles;
    • Invited Governments to submit further comments on any future action, in particular on the form of the respective articles and principles, bearing in mind the recommendations made by the Commission in that regard, including in relation to the elaboration of a convention on the basis of the draft articles, as well as on any practice in relation to the application of the articles and principles;
    • Requested the Secretary-General to submit a compilation of decisions of international courts, tribunals and other bodies referring to the articles and the principles;
    • Decided to include in the provisional agenda of its seventy-first (2016) session the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.
  • See the website of the Sixth Committee of the General Assembly