International Law Commission International Law Commission

Last update: November 20, 2018

Summaries of the Work of the International Law Commission

Protection of the atmosphere

See also: Analytical Guide | Texts and Instruments

At its sixty-fifth session, in 2013, the International Law Commission decided to include the topic "Protection of the atmosphere" in its programme of work and to appoint Mr. Shinya Murase as the Special Rapporteur for the topic. The Commission included the topic in its programme on the understanding that:

The Special Rapporteur's reports would be based on such understanding.

At the sixty-sixth session in 2014, the Commission considered the first report of the Special Rapporteur,1 which sought to address the general objective of the project, including providing the rationale for the work on the topic, delineating its general scope, identifying the relevant basic concepts and offering perspectives and approaches to be taken with respect to the topic.

At the sixty-seventh session in 2015, the Commission had before it the second report of the Special Rapporteur,2 which, upon a further analysis of the draft guidelines submitted in the first report, presented a set of revised draft guidelines relating to the use of terms, the scope of the draft guidelines, and the common concern of humankind, as well as draft guidelines on the general obligation of States to protect the atmosphere and on international cooperation. The Commission decided to refer draft guidelines 1, 2, 3 and 5 to the Drafting Committee, with the understanding that draft guideline 3 would be considered in the context of a possible preamble. The Commission subsequently provisionally adopted draft guidelines 1, 2 and 5 and four preambular paragraphs, together with commentaries thereto.

At its sixty-eighth session, in 2016, the Commission had before it the third report of the Special Rapporteur,3 analysing the obligations of States to prevent atmospheric pollution and mitigate atmospheric degradation, the requirement of due diligence and environmental impact assessment, questions concerning sustainable and equitable utilization of the atmosphere, and the legal limits on certain activities aimed at intentional modification of the atmosphere. The report also contained a proposal of five draft guidelines on the obligation of States to protect the environment, environmental impact assessment, sustainable utilization of the atmosphere, equitable utilization of the atmosphere, and geo-engineering, together with an additional draft preamble paragraph.4

Following its debate on the third report, the Commission referred the five draft guidelines, together with the preambular paragraph, to the Drafting Committee. Upon its consideration of the report of the Drafting Committee, the Commission considered and provisionally adopted draft guidelines 3, 4, 5, 6 and 7 and a preambular paragraph, together with commentaries thereto.5

At its sixty-ninth session, the Commission had before it the fourth report of the Special Rapporteur,6 which, building upon the previous three reports, proposed four guidelines on the interrelationship between the rules of international law relating to the protection of the atmosphere and other relevant rules of international law, including the rules of international trade and investment law, the law of the sea, and international human rights law. Following the debate in the Commission, which was preceded by an informal dialogue with atmospheric scientists organized by the Special Rapporteur, the Commission decided to refer the four draft guidelines, as contained in the Special Rapporteur’s fourth report, to the Drafting Committee. Upon its consideration of the report of the Drafting Committee, the Commission provisionally adopted draft guideline 9 and three preambular paragraphs, together with commentaries thereto.

At its seventieth session, the Commission referred draft guidelines 10 to 12, as contained in the Special Rapporteur’s fifth report,7 to the Drafting Committee, taking into account the debate in the Commission. The Commission subsequently adopted, on first reading, a draft preamble and the entire set of draft guidelines, including the draft guidelines adopted at its sixty-eighth (2016) and sixty-ninth (2017) sessions, as a whole as the “Guidelines on Protection of the Atmosphere”, with commentaries thereto.

The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft guidelines, through the Secretary-General, to Governments and international organizations for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 15 December 2019.

The work of the Commission on the topic as described above has been proceeding in accordance with the successive resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.8

1 See document A/CN.4/667.

2 See document A/CN.4/681 and Corr.1 (Chinese only).

3 See document A/CN.4/692.

4 Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10), para. 88.

5 Ibid., paras. 90–96.

6 See document A/CN.4/705 and Corr.1.

7 A/CN.4/711.

8 General Assembly resolutions 68/112 of 16 December 2013; 69/118 of 10 December 2014; 70/236 of 23 December 2015; 71/140 of 13 December 2016; and 72/116 of 7 December 2017.