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Last update: June 29, 2023

Summaries of the Work of the International Law Commission

Prevention of transboundary damage from hazardous activities

See also: Analytical Guide | Texts and Instruments

At its forty-ninth session, in 1997, the Commission appointed Pemmaraju Sreenivasa Rao as Special Rapporteur for this part of the topic.

The Commission proceeded with its work on this part of the topic, on the basis of the reports of the Special Rapporteur1 and information provided by Governments,2 from its fiftieth to fifty-third sessions, from 1998 to 2001, respectively.

At its fiftieth session, in 1998, the Commission established a Working Group to ascertain whether the principles of procedure and content of the duty of prevention were appropriately reflected in the draft articles recommended by the Working Group to the Commission at its forty-eighth session, in 1996. On the basis of the Working Group’s discussions, the Special Rapporteur proposed at the same session a revised text of the draft articles,3 which the Commission referred to the Drafting Committee. The Commission considered the report of the Drafting Committee and adopted on first reading a set of seventeen draft articles on prevention of transboundary damage from hazardous activities. In accordance with articles 16 and 21 of the Statute, they were transmitted to Governments for comments and observations.

The General Assembly, in resolution 53/102 of 8 December 1998, expressed its appreciation to the Commission for the completion of the first reading of the draft articles on the prevention part of the topic and invited Governments to submit comments and observations in writing on the draft articles.

At its fifty-second session, in 2000, the Commission established a Working Group to examine the comments and observations made by States on the draft articles. On the basis of the discussion in the Working Group, the Special Rapporteur presented his third report4 containing a draft preamble and a revised set of draft articles on prevention, 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, the relationship between an equitable balance of interests among States concerned and the duty of prevention, as well as duality of the regimes of liability and State responsibility. The Commission considered the report and decided to refer the draft preamble and draft articles contained therein to the Drafting Committee.

At its fifty-third session, in 2001, the Commission adopted and submitted to the General Assembly the final text of draft articles on prevention of transboundary harm from hazardous activities, consisting of a preamble and nineteen articles, with commentaries thereto.5 In transmitting the final draft to the General Assembly, the Commission recommended that the General Assembly elaborate a convention on the basis of the draft articles.6

The General Assembly, by resolution 56/82 of 12 December 2001, expressed its appreciation for the valuable work done by the Commission on the issue of prevention on the topic of international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary harm from hazardous activities).

In resolution 61/36 of 4 December 2006, the General Assembly decided to revert to the topic, together with the issue of allocation of loss in the case of transboundary harm from hazardous activities, at its sixty-second session, in 2007.

In resolution 62/68 of 6 December 2007, the General Assembly 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. Concerning the articles on prevention of transboundary harm from hazardous activities, the text of which was annexed to that resolution, the Assembly commended them to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the articles. The Assembly also invited Governments to submit comments on any future action, in particular on the form of the articles, 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.

By 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 articles to the attention of Governments, without prejudice to any future action, as recommended by the Commission; reiterated its invitation to Governments to submit comments on any future action with regard to the articles; requested the Secretary-General to submit a compilation of decisions of international courts, tribunals and other bodies referring to the articles (as well as to the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities),7 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, the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.

1 See Yearbook … 1998, vol. II (Part One), document A/CN.4/487 and Add.1; Yearbook … 1999, vol. II (Part One), document A/CN.4/501; and Yearbook … 2000, vol. II (Part One), document A/CN.4/510.

2 See Yearbook … 2000, vol. II (Part One), document A/CN.4/509; and Yearbook … 2001, vol. II (Part One), document A/CN.4/516.

3 Document A/CN.4/L.556, reproduced in Yearbook … 1998, vol. II (Part Two), footnote 12.

4 See Yearbook … 2000, vol. II (Part One), document A/CN.4/510.

5 See Yearbook … 2001, vol. II (Part Two), document A/56/10, paras. 91, 92, 97 and 98.

6 See ibid., para. 94.

7 See documents A/68/94, A/71/98, A/74/132 and A/77/147.