International Law Commission International Law Commission

Last update: November 6, 2017

Analytical Guide to the Work of the International Law Commission

Prevention of transboundary damage from hazardous activities

See also: Summary | Texts and Instruments

Mandate

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

None

Reports of the Working Group or Sub-Committee

None

Reports of the Special Rapporteur

  • Review of the Commission's work on the topic of liability since it was first placed on the agenda in 1978, focusing in particular on the question of the scope of the draft articles to be elaborated. This was followed by an analysis of the procedural and substantive obligations which the general duty of prevention entailed. As regards the former, the Special Rapporteur discussed the following principles: prior authorization; international environmental impact assessment; cooperation, exchange of information, notification, consultation and negotiation in good faith; dispute prevention or avoidance and settlement of disputes; and non-discrimination. Concerning subtantive obligations, the Special Rapporteur considered the precautionary principle, the polluter-pays principle and the principles of equity, capacity building and good governance.
    • First Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao (50th session of the ILC (1998))
  • Comprised of five sections. Sections I and II dealt with the questions raised in the 1998 report of the Commission on the nature of the obligation of prevention, the eventual form of the draft articles and the type of dispute settlement procedures that may be suitable for the draft articles as well as reaction by Governments to the report of the Commission during the Sixth Committee debate at the fifty-third session of the General Assembly. Section III elaborated on the salient features of the concept of due diligence and ways in which that concept could be implemented in the light of State practice and doctrine. This section further identified the factors that are relevant in the enforcement of the duty of due diligence. Section IV reviewed the treatment of the concept of international liability in the Commission since the topic was placed on its agenda as well as negotiations on liability issues in other international forums.
    • Second Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao (51st session of the ILC (1999))
  • Contained a draft preamble and a revised set of draft articles on prevention of transboundary damage from hazardous activities, along with the recommendation that they be adopted as a framework convention. Furthermore, the third report addressed questions such as the scope of the topic, its relationship with liability under international law, the relationship between an equitable balance of interests among States concerned and the duty of prevention, as well as the duality of the regimes of liability and State responsibility.
    • Third Report of the Special Rapporteur, Mr. Pemmaraju Sreenivasa Rao (52nd session of the ILC (2000))

Reports of the Drafting Committee

  • 50th session of the International Law Commission (1998)
    • Titles and texts of draft articles 1 to 17 on Prevention of transboundary damage from hazardous activities adopted by the Drafting Committee
  • 53rd session of the International Law Commission (2001)
    • Draft preamble and draft articles on Prevention of transboundary damage from hazardous activities adopted by the Drafting Committee on second reading
    • Statement of the Chair of the Drafting Committee, made at the 2675th meeting held on 11 May 2001

Comments by Governments

  • 52nd session of the International Law Commission (2000)
    • International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (prevention of transboundary damage from hazardous activities). Comments and observations received by Governments. Report of the Secretary-General
  • 53rd session of the International Law Commission (2001)
    • International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law (prevention of transboundary damage from hazardous activities). Comments and observations received by Governments. Report of the Secretary-General

Other

  • 50th session of the International Law Commission (1998)
    • Proposal by the Special Rapporteur (revised text of draft articles on the basis of discussion in the Working Group)

Reports of the International Law Commission

  • 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)
  • Report of the International Law Commission on the work of its fiftieth session, 20 April to 12 June 1998 and 27 July to 14 August 1998
    • The Commission decided to refer to the Drafting Committee draft articles 1 (a) (Activities to which the present articles apply) and 2 (Use of terms), recommended by the Working Group in 1996. The Commission also reestablished the Working Group to review draft articles 3 to 22 recommended in 1996 in light of the Commission's decision to focus first on the question of prevention. On the basis of the Working Group's discussions, the Special Rapporteur proposed a revised text for the draft articles (A/CN.4/L.556). The Commission subsequently decided to refer to the Drafting Committee the draft articles proposed by the Special Rapporteur. On the basis of the report of the Drafting Committee, the Commission adopted on first reading a set of 17 draft articles on prevention of transboundary damage from hazardous activities. It decided, in accordance with articles 16 and 21 of its statute, to transmit the draft articles 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 2000.
    • Discussion in Plenary: 2527th, 2528th, 2529th, 2530th and 2531st meetings (8 to 15 May 1998), 2542nd meeting (5 June 1998), and 2560th, 2561st, 2562nd, 2563rd and 2564th meetings (12 to 14 August 1998)
  • Report of the International Law Commission on the work of its fifty-first session, 3 May to 23 July 1999
    • In the last Section, Section V, of his report, the Special Rapporteur offered three options with respect to future course of action on the question of liability. The first option was to proceed with the topic of liability and finalize some recommendations, taking into account the work of the previous Special Rapporteurs and the text prepared by the Working Group of the Commission in 1996. The second option was to suspend the work on international liability, until the Commission finalizes its second reading of the draft articles on the regime of prevention. The third option was for the Commission to terminate its work on the topic of international liability, unless a fresh and revised mandate is given by the General Assembly. 605. As a matter of immediate focus for discussion, the Special Rapporteur requested comments, in particular, on the three options he had proposed in order to enable the Commission to take a decision with respect to its future work on the topic. On the basis of the discussion, the Commission decided to defer consideration of the question of international liability, pending completion of the second reading of the draft articles on the prevention of transboundary damage from hazardous activities.
    • Discussion in Plenary: 2600th and 2601st meetings (9 and 13 July 1999)
  • Report of the International Law Commission on the work of its fifty-second session, 1 May–9 June and 10 July–18 August 2000
    • The Commission had before it the Report of the Secretary-General containing the comments and observations received from Governments on the topic. It decided to establish a working group on the topic. The Commission also considered the third report by the Special Rapporteur and decided to refer the draft preamble and revised draft articles 1–19 as proposed by him to the Drafting Committee.
    • Discussion in Plenary: 2628th meeting (26 May 2000), 2641st, 2642nd and 2643rd meetings (18 to 20 July 2000)

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
    • Expressed its appreciation to the Commission for the work accomplished during that year's session, in particular the completion of the first reading of the draft articles on the prevention part of the topic. Invited Governments to submit comments and observations in writing by 1 January 2000 on the draft articles on international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities). Welcomed the valuable work done by the International Law Commission on the topic "International liability for injurious consequences arising out of acts not prohibited by international law", and 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
    • Reiterated its invitation to Governments to submit comments and observations in writing by 1 January 2000 on the draft articles on international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities). Took note of paragraph 608 of the report of the Commission with regard to the procedure to be followed with respect to the topic "International liability for injurious consequences arising out of acts not prohibited by international law", and 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
    • Noted with appreciation the work done by the International Law Commission on the topic "international liability for injurious consequences arising out of acts not prohibited by international law" and 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)

Final Outcome

International Law Commission (53rd session, 2001)

 

General Assembly

  • Resolution 56/82 of 12 December 2001
    • Expressed appreciation to the International Law Commission for the valuable work done on the issue of prevention on the topic "international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities)".
    • 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 61/36 of 4 December 2006
    • 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
  • 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
  • Resolution 71/143 of 13 December 2016
    • Commended once again the articles on prevention of transboundary harm from hazardous activities, the text of which is 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 is 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 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-fourth 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