Summaries of the Work of the International Law Commission
International liability in case of loss from transboundary harm arising out of hazardous activities
See also: Analytical Guide | Texts and Instruments
The General Assembly, in 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.
In his second report,1 the Special Rapporteur on the prevention part of the topic, dealt, apart from the issues related to the first part of the topic (prevention), with the treatment of the concept of international liability in the Commission since the topic was placed on its agenda; negotiations on liability issues in other international fora; and options with respect to the future course of action on the question of liability. The Commission considered the report at its fifty-first session, in 1999, and decided to defer the 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.
The General Assembly, in resolutions 54/111 of 9 December 1999 and 55/152 of 12 December 2000, requested the Commission to resume the consideration of the liability aspects of the topic as soon as the second reading of the draft articles on prevention was finalized. The General Assembly, by resolution 56/82 of 12 December 2001, requested the Commission to resume, during its fifty-fourth session, its consideration of the liability aspects of the topic, bearing in mind the interrelationship between prevention and liability, and taking into account the developments in international law and comments by Governments.
At its fifty-fourth session, in 2002, the Commission decided to include the topic “International liability for injurious consequences arising out of acts not prohibited by international law” on its programme of work and to begin consideration of the second part of the topic “International liability in case of loss from transboundary harm arising out of hazardous activities”. The Commission established a Working Group, chaired by Pemmaraju Sreenivasa Rao, to consider the conceptual outline of the topic. The Working Group recommended continuing to limit the scope of the remainder of the topic concerning liability to the same activities that were covered under the first part of the topic concerning prevention, which would effectively link the work on the two parts of the topic. The Working Group also set out the following initial understandings on the topic: (a) a threshold would have to be determined to trigger the application of the regime on allocation of loss caused; and (b) the loss to be covered should include loss to (i) persons, (ii) property, including elements of State patrimony and national heritage, and (iii) environment within national jurisdiction. The Working Group also considered the approach to be taken regarding the role of the operator and the State in the allocation of loss. The Commission adopted the report of the Working Group, as amended by the Commission. The Commission also appointed Mr. Rao as Special Rapporteur for the topic.2
The General Assembly, in resolution 57/21 of 19 November 2002, took note of the Commission’s decision to proceed with its work on the topic, as requested by the Assembly in resolution 56/82.
At its fifty-fifth session, in 2003, the Commission had before it the Special Rapporteur’s first report3 on the legal regime for allocation of loss in case of transboundary harm arising out of hazardous activities. The report reviewed the work of the Commission in previous years, analysed the liability regimes of various instruments and offered conclusions for the consideration of the Commission. After considering the report, the Commission decided to establish a Working Group, under the Chairship of the Special Rapporteur, to assist the Special Rapporteur in considering the future orientation of the topic in the light of his report and the debate in the Commission.4
At its fifty-sixth session, in 2004, the Commission had before it the second report5 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.6 The Commission established a working group under the Chairship 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 report7 be referred to the Drafting Committee. The Commission received the oral report of the Chair 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 Committee8 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.9 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 2006.10
The General Assembly, in 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, and 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.
The Commission undertook and completed the second reading of the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities at its fifty-eighth session, in 2006, on the basis of the third report of the Special Rapporteur11 as well as the comments and observations received from Governments.12
The Commission subsequently adopted, on second reading, the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, consisting of the text of a preamble and the following eight draft principles, as well as commentaries thereto: 1 (Scope of application), 2 (Use of terms), 3 (Purposes), 4 (Prompt and adequate compensation), 5 (Response measures), 6 (International and domestic remedies), 7 (Development of specific international regimes), and 8 (Implementation).13
The Commission submitted the draft preamble and draft principles to the General Assembly and recommended that, in accordance with article 23 of its Statute, the General Assembly endorse the draft principles by a resolution and urge States to take national and international action to implement them.14
In resolution 61/36 of 4 December 2006, the General Assembly took note of 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 the resolution, and commended them to the attention of Governments. The Assembly also decided to undertake the consideration of the topic, together with the issue of the prevention of transboundary harm from hazardous activities, at its sixty-second session, in 2007.
By resolution 62/68 of 6 December 2007, the General Assembly commended again the principles to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the principles. The Assembly also invited Governments to submit comments on any future action, in particular on the form of the principles as well as on any practice in relation to the application of the principles.
In resolutions 65/28 of 6 December 2010, 69/114 of 16 December 2013, 71/143 of 13 December 2016, 74/189 of 18 December 2019 and 77/106 of 7 December 2022, the General Assembly commended once again the principles to the attention of Governments; reiterated its invitation to Governments to submit comments on any future action with regard to the principles; requested the Secretary-General to submit a compilation of decisions of international courts, tribunals and other bodies referring to the principles (as well as to the articles on prevention of transboundary harm from hazardous activities);15 and decided to include in the provisional agenda of its sixty-eighth, seventy-first, seventy fourth sessions, seventy-seventh and eighty-second (2013, 2016, 2019, 2022 and 2027), respectively, an item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.
1 Document A/CN.4/501. (see Analytical Guide)
2 See Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 10 (A/57/10), paras. 441–457, 517 and 519. (see Analytical Guide)
3 Document A/CN.4/531. (see Analytical Guide)
4 See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), paras. 10 (c), 16, 165 and 166. (see Analytical Guide)
5 Document A/CN.4/540.
6 See Yearbook … 2004, vol. II (Part One), document A/CN.4/543.
7 Document A/CN.4/L.661.
8 Document A/CN.4/L.662.
9 See Yearbook … 2004, vol. II (Part Two), paras. 175 and 176.
11 See Yearbook … 2006, vol. II (Part One), document A/CN.4/566.
12 See ibid., document A/CN.4/562 and Add.1.
13 See Yearbook … 2006, vol. II (Part Two), paras. 66 and 67.