International Law Commission

Last update: June 30, 2023

Summaries of the Work of the International Law Commission

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

From the outset of its work on the topic of State responsibility the Commission agreed that that topic should deal only with the consequences of internationally wrongful acts, and that, in defining the general rule concerning the principle of responsibility for internationally wrongful acts, it was necessary to adopt a formula which did not prejudge the existence of responsibility for lawful acts. That conclusion met with broad acceptance in the discussion of the Sixth Committee of the General Assembly at its twenty-fifth session, in 1970.

At its twenty-fifth session, in 1973, when the Commission started to work on the first set of draft articles on State responsibility, it referred to the matter in more definite terms: “ ... if it is thought desirable — and views to this effect have already been expressed in the past both in the International Law Commission and in the Sixth Committee of the General Assembly — the International Law Commission can undertake the study of the so-called responsibility for risk after its study on responsibility for wrongful acts has been completed, or it can do so simultaneously but separately.”¹

The General Assembly, in resolution 3071 (XXVIII) of 30 November 1973, again supported the position of the Commission and recommended that the Commission should undertake a study of the new topic “at an appropriate time”. The Assembly, in resolutions 3315 (XXIX) of 14 December 1974 and 3495 (XXX) of 15 December 1975, repeated its recommendation that the Commission take up the topic ‘‘as soon as appropriate”, and finally in 1976, in resolution 31/97 of 15 December, it replaced that phrase by the words “at the earliest possible time”.

Pursuant to those recommendations of the General Assembly, the Commission agreed, at its twenty-ninth session, in 1977, to undertake the study on the topic at the earliest possible time, having regard, in particular, to the progress made on the draft articles on State responsibility for internationally wrongful acts.

The General Assembly, in resolution 32/151 of 19 December 1977, endorsed the conclusion of the Commission and invited it, at an appropriate time and in the light of progress made on the draft articles on State responsibility for internationally wrongful acts and on other topics in its current programme of work, to commence work on the topic of international liability for injurious consequences arising out of acts not prohibited by international law.

At its thirtieth session, in 1978, the Commission established a working group to consider, in a preliminary manner, the scope and nature of the topic. On the basis of the recommendations made by the Working Group,² the Commission appointed Robert Q. Quentin-Baxter as Special Rapporteur for the topic and invited him to prepare a preliminary report at an early juncture. It also requested the Secretariat to collect and survey materials on the topic on a continuous basis.

The Commission proceeded with its work on the topic as a whole from its thirty-second to thirty-sixth sessions and from its thirty-eighth to forty-ninth sessions, from 1980 to 1984 and from 1986 to 1997, respectively. At its forty-ninth session, in 1997, the Commission decided to split the topic into two parts, prevention of transboundary damage from hazardous activities and international liability in case of loss from transboundary harm arising out of hazardous activities.

At the Commission’s thirty-seventh session, in 1985, Julio Barbosa succeeded Robert Q. Quentin-Baxter as Special Rapporteur for the topic. In connection with its work on the topic, the Commission had before it the reports of the Special Rapporteurs,³ information provided by Governments and international organizations⁴ as well as documents prepared by the Secretariat.⁵

At its thirty-fifth session, in 1983, the Commission agreed that the Special Rapporteur should, with the help of the Secretariat, prepare a questionnaire to be addressed to selected international organizations with a view to ascertaining whether obligations which States owed to each other, and discharged, as members of international organizations might, to that extent, fulfil or replace some of the procedures indicated in the Special Rapporteur’s schematic outline contained in his third report. In compliance with this decision, a questionnaire was prepared and addressed to sixteen international organizations, selected on the basis of activities which might bear on the subject matter of the inquiry.

At its fortieth session, in 1988, the Commission began the first reading of the draft articles on the topic.

At its forty-fourth session, in 1992, the Commission established a Working Group to consider some of the general issues relating to the scope, the approach to be taken and the possible direction of the future work on the topic. On the basis of the recommendation of the Working Group,⁶ the Commission decided, with regard to the scope of the topic, that, pending a final decision, the topic should be understood as comprising both issues of prevention and of remedial measures. Prevention should, however, be considered first; only after having completed its work on that first part of the topic would the Commission proceed to the question of remedial measures. Remedial measures in that context might include those designed for mitigation of harm, restoration of what had been harmed and compensation for harm caused. Thus, the draft articles should deal first with preventive measures in respect of activities creating a risk of causing transboundary harm and secondly with articles on the remedial measures when such activities had caused transboundary harm. The Commission deferred, however, its decision on the question of the approach to be taken with regard to the nature of the articles or of the instrument to be drafted, until after the completion of the work on the topic. The articles would be considered and adopted on the basis of their merits based on their clarity and utility for the contemporary and future needs of the international community and their possible contribution to the promotion of the progressive development and codification of international law in that area. The Commission also deferred its decision on the title of the topic until after the completion of the draft articles.⁷

At its forty-sixth and forty-seventh sessions, in 1994 and 1995, the Commission provisionally adopted draft articles 1 (Scope of the present articles), 2 (Use of terms), 11 (Prior authorisation), 12 (Risk assessment), 13 (Pre-existing activities), 14 (Measures to prevent or minimize the risk), 14 bis (Non-transference of risk), 15 (Notification and information), 16 (Exchange of information), 16 bis (Information to the public), 17 (National security and industrial secrets), 18 (Consultations on preventive measures), 19 (Rights of the State likely to be affected), 20 (Factors involved in an equitable balance of interests), A (Freedom of action and the limits thereto), B (Prevention), C (Liability and compensation) and D (Cooperation), with commentaries thereto.

At its forty-seventh session, in 1995, the Commission established a Working Group to identify activities within the scope of the topic. In the light of the Working Group’s report,⁸ the Commission agreed that it must, in its future work on the topic, have a clear view of the kind of activities to which the draft articles on the topic apply. It took the view that it could work on the basis that the types of activities listed in various conventions dealing with issues of transboundary harm came within the scope of the topic, but that eventually, more specificity might be required in the draft articles.

At its forty-eighth session, in 1996, the Commission established a Working Group to review the topic in all its aspects in the light of the reports of the Special Rapporteur and the discussions on the topic held over the years. In its report to the Commission, the Working Group submitted a single consolidated text of draft articles and commentaries thereto which were limited in terms of the scope of the topic and residual in character.⁹ The Commission was unable to examine the draft articles at that session. It, however, decided to transmit them to the General Assembly and to Governments for comments.¹⁰

At its forty-ninth session, in 1997, the Commission, pursuant to General Assembly resolution 51/160 of 16 December 1996, established a Working Group to consider the question of how to proceed with the topic. The Working Group reviewed the work of the Commission on the topic since 1978. It noted that the scope and content of the topic remained unclear due to such factors as conceptual and theoretical difficulties, appropriateness of the title and the relation of the subject to the topic “State responsibility”. It further noted that the Commission had dealt with two distinct, though related, issues under the topic: “prevention” and “international liability”. The Working Group agreed that those issues henceforth should be dealt with separately. Noting that the work on prevention was already at an advanced stage, the Working Group believed that the Commission should proceed with its work on this aspect of the topic with a possible completion of the first reading in the near future. With respect to the second aspect, liability, the Working Group was of the view that, while retaining it, the Commission should await further comments from Governments before making any decision on the issue.¹¹

At the same session, the Commission considered and adopted the Working Group’s report.¹² On the basis of the recommendation of the Working Group, the Commission decided, inter alia, to proceed with its work on the topic, undertaking first prevention under the subtitle “Prevention of transboundary damage from hazardous activities”.

The General Assembly, in resolution 52/156 of 15 December 1997, took note of the Commission’s decision.

¹ See Yearbook … 1973, vol. II, document A/9010/Rev.1, para. 39. (see Analytical Guide)

² For the report of the Working Group, see document A/CN.4/L.284 and Corr.1. (see Analytical Guide) Section II of the report is reproduced in Yearbook … 1978, vol. II (Part Two), para. 178, annex.

³ For the reports of Robert Q. Quentin-Baxter, see Yearbook … 1980, vol. II (Part One), document A/CN.4/334 and Add.1 and 2; ibid., 1981, vol. II (Part One), document A/CN.4/346 and Add.1 and 2; ibid., 1982, vol. II (Part One), document A/CN.4/360; ibid., 1983, vol. II (Part One), document A/CN.4/373; and ibid., 1984, vol. II (Part One), document A/CN.4/383 and Add.1. For the reports of Julio Barbosa, see Yearbook … 1985, vol. II (Part One), document A/CN.4/394; ibid., 1986, vol. II (Part One), document A/CN.4/402; ibid., 1987, vol. II (Part One), document A/CN.4/405; ibid., 1988, vol. II (Part One), document A/CN.4/413; ibid., 1989, vol. II (Part One), document A/CN.4/423; ibid., 1990, vol. II (Part One), document A/CN.4/428 and Add.1; ibid., 1991, vol. II (Part One), document A/CN.4/437; ibid., 1992, vol. II (Part One), document A/CN.4/443; ibid., 1993, vol. II (Part One), document A/CN.4/450; ibid., 1994, vol. II (Part One), document A/CN.4/459; as well as documents A/CN.4/468 and A/CN.4/475 and Add.1. (see Analytical Guide for individual documents)

⁴ See Yearbook … 1984, vol. II (Part One), document A/CN.4/378; as well as document A/CN.4/481 and Add.1. (see Analytical Guide)

⁵ “Survey of State practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law” (document ST/LEG/15, subsequently reissued in a slightly amended form under the symbol A/CN.4/384, reproduced in Yearbook … 1985, vol. II (Part One, addendum)); and “Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law” (document A/CN.4/471, reproduced in Yearbook … 1995, vol. II (Part One)). (see Analytical Guide)

⁶ Document A/CN.4/L.470.

⁷ See Yearbook … 1992, vol. II (Part Two), paras. 344–348.

⁸ Document A/CN.4/L.510.

⁹ Document A/CN.4/L.533 and Add.1 reproduced in Yearbook … 1996, vol. II (Part Two) and Corr.1 (Arabic only), annex I.

¹⁰ See Yearbook … 1996, vol. II (Part Two), para. 99.

¹¹ See Yearbook … 1997, vol. II (Part Two), paras. 165–167.

¹² Document A/CN.4/L.536 reflected in Yearbook … 1997, vol. II (Part Two), paras. 165–167.