International Law Commission International Law Commission

Last update: February 15, 2024

Summaries of the Work of the International Law Commission

Protection of the atmosphere

See also: Analytical Guide | Texts and Instruments

At its sixty-third session, in 2011, the Commission, on the basis of a recommendation of the Working Group on the long-term programme of work, identified the topic “Protection of the atmosphere” for inclusion in its long-term programme of work.1 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2

The General Assembly, in resolution 66/98 of 9 December 2011, took note of the inclusion of the topic in the long-term programme of work of the Commission.

At its sixty-fifth session, in 2013, the Commission decided to include the topic “Protection of the atmosphere” in its programme of work and appointed Shinya Murase as Special Rapporteur for the topic. The Commission included the topic in its programme of work on the understanding that: (a) work on the topic would proceed in a manner so as not to interfere with relevant political negotiations, including on climate change, ozone depletion, and long-range transboundary air pollution. The topic would not deal with, but would also without prejudice to, questions such as: liability of States and their nationals, the polluter-pays principle, the precautionary principle, common but differentiated responsibilities, and the transfer of funds and technology to developing countries, including intellectual property rights; (b) the topic would also not deal with specific substances, such as black carbon, tropospheric ozone, and other dual-impact substances, which are subject of negotiations among States. The project would not seek to “fill” gaps in the treaty regimes; (c) questions relating to outer space, including its delimitation, would not be a part of the topic; and (d) the outcome of the work on the topic would be draft guidelines that do not seek to impose on current treaty regimes legal rules or legal principles not already contained therein.3

At the sixty-sixth session, in 2014, the Commission received and considered the first report of the Special Rapporteur on the topic,4 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.5 The report also contained a proposal of three draft guidelines.6

At its sixty-seventh session in 2015, the Commission had before it the second report of the Special Rapporteur,7 which analysed the draft guidelines proposed in the first report in light of the comments made in the Commission and the Sixth Committee of the General Assembly, while also proposing a set of revised guidelines.8 The Commission referred 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. Following receipt of the report of the Drafting Committee, the Commission provisionally adopted draft guidelines 1, 2 and 5 and four preambular paragraphs, together with commentaries thereto.9

At its sixty-eighth session, in 2016, the Commission had before it the third report of the Special Rapporteur,10 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.11

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.12

At its sixty-ninth session, in 2017, the Commission had before it the fourth report of the Special Rapporteur,13 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.14

At its seventieth session, in 2018, the Commission had before it the fifth report of the Special Rapporteur,15 which contained proposals for draft guidelines 10 to 12, concerning respectively implementation, compliance and dispute settlement. The Commission referred the three draft guidelines 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 2019.16

At its seventy-second session, in 2021, the Commission considered the sixth report of the Special Rapporteur,17 as well as comments and observations received from Governments and international organizations.18 The sixth report addressed the comments and observations made by Governments and international organizations on the draft preamble, draft guidelines and commentaries adopted on first reading and made recommendations for each draft guideline, as well as the draft preamble. Following its debate on the report, the Commission decided to refer draft guidelines 1 to 12, together with the preamble, as contained in the Special Rapporteur’s sixth report, to the Drafting Committee, taking into account the debate in the Commission.19

At the same session, the Commission adopted, on second reading, the entire set of draft guidelines on protection of the atmosphere, consisting of a draft preamble and 12 draft guidelines, together with commentaries thereto. The Commission decided, in conformity with article 23 of its statute, to recommend that the General Assembly take note in a resolution of the draft preamble and draft guidelines, annex the draft guidelines to the resolution, ensure their widest possible dissemination and commend the draft preamble and guidelines, together with the commentaries thereto, to the attention of States, international organizations and all who may be called upon to deal with the subject.20

The final draft consists of a draft preamble and twelve draft guidelines: guideline 1 (Use of terms); guideline 2 (Scope); guideline 3 (Obligation to protect the atmosphere); guideline 4 (Environmental impact assessment); guideline 5 (Sustainable utilization of the atmosphere); guideline 6 (Equitable and reasonable utilization of the atmosphere); guideline 7 (Intentional large-scale modification of the atmosphere); guideline 8 (International cooperation); guideline 9 (Interrelationship among relevant rules); guideline 10 (Implementation); guideline 11 (Compliance); and guideline 12 (Dispute settlement).

By resolution 76/112 of 9 December 2021, the General Assembly took note of the preamble and guidelines on the protection of the atmosphere, the text of which was annexed to the resolution, with the commentaries thereto, bought them to the attention of States, international organizations and who may be called upon to deal with the subject and encouraged their widest possible dissemination.

1 See Yearbook … 2011, vol. II (Part Two), para. 365.

2 See ibid., annex II.

3 See Yearbook … 2013, vol. II (Part Two), para. 168.

4 See Yearbook … 2014, vol. II (Part One), document A/CN.4/667.

5 See Yearbook … 2014, vol. II (Part Two), paras. 79–80.

6 See ibid., para. 80.

7 See Yearbook … 2015, vol. II (Part One), document A/CN.4/681.

8 See Yearbook … 2015, vol. II (Part Two), para. 47.

9 See ibid., paras. 50–54.

10 Document A/CN.4/692.

11 See Yearbook … 2016, vol. II (Part Two), para. 88.

12 See ibid., paras. 90–96.

13 Document A/CN.4/705 and Corr.1.

14 See Yearbook … 2017, vol. II (Part Two), paras. 59–65.

15 Document A/CN.4/711.

16 See Yearbook … 2018, vol. II (Part Two), paras. 69–78.

17 Document A/CN.4/736.

18 Document A/CN.4/735.

19 Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), paras. 31–33.

20 See ibid., paras. 34–40.