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Sixty-second session

Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm (agenda item 84)

Summary of work

Background (source: A/62/100)

Following a recommendation by the General Assembly in resolution 3071 (XXVIII) of 30 November 1973 that the International Law Commission should undertake at an appropriate time a separate study of the topic “International liability for injurious consequences arising out of the performance of other activities”, other than acts giving rise to responsibility for internationally wrongful acts, the topic “International liability for injurious consequences arising out of acts not prohibited by international law” was included in the programme of work of the Commission in 1978.

In 1997, the Commission decided to deal first with prevention aspects of the topic under the subtitle “Prevention of transboundary damage from hazardous activities”. The Commission at its fifty-third session, in 2001, completed the draft articles on prevention of transboundary harm from hazardous activities and recommended to the General Assembly the elaboration of a convention on the basis of the draft articles (see A/56/10 and Corr.1, chap. V).

At its fifty-sixth session, in 2001, the General Assembly requested the Commission to proceed with its work on the topic “International liability for injurious consequences arising out of acts not prohibited by international law”, undertaking, as a first step, the issue of prevention, bearing in mind the interrelationship between prevention and liability (resolution 56/82).

In 2002, at its fifty-fourth session, the Commission resumed work on the liability aspects of the topic under the subtitle “International liability in case of loss from transboundary harm arising out of hazardous activities”. At its fifty-eighth session, in 2006, the Commission completed the liability aspects by adopting draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities (see A/61/10, chap. V.E), and recommended to the General Assembly that it endorse the draft principles by a resolution and urge States to take national and international action to implement them.

At its sixty-first session, the General Assembly, having considered the report of the Commission, took note of the principles and commended them to the attention of Governments; and decided to include in the provisional agenda of its sixty-second session an item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm” (resolution 61/36).

Consideration at the sixty-second session

The Sixth Committee considered the item at its 12th and 28th meetings, on 23 October and 19 November 2007.

Statements were made by the representatives of New Zealand (also on behalf of Australia and Canada), Norway (on behalf of the Nordic States), Portugal, China, Argentina, the United States of America, the United Kingdom, Mexico, Japan, Malaysia, Pakistan, the Russian Federation, Venezuela (Bolivarian Republic of), Austria and Indonesia.

While some delegations also commented on the substantive aspects of the draft articles on prevention of transboundary harm from hazardous activities and the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, the main focus of the interventions was on the final form that these draft instruments should take. 

It was recalled that the International Law Commission had recommended that the General Assembly adopt an international convention on the basis of the draft articles on prevention, and that the draft principles be endorsed in a resolution. In this regard, some delegations expressed support for the adoption of the draft articles in the form of a convention and were of the view that such a convention could also include elements of the draft principles on the allocation of loss. Preference was also voiced for adopting the two texts as non-binding instruments. In addition, a view was expressed against the elaboration of a convention. It was suggested instead that the General Assembly take note of the work on the two aspects of the topic and encourage States to make use of the articles and principles in the context of specific situations. Some other delegations suggested that the General Assembly welcome the draft articles on prevention and commend them to the attention of Governments without prejudice to their adoption as a convention, and considered that the General Assembly should encourage States to be guided by both the articles and the principles in the conduct of their relations.

Furthermore, according to another view, the issues of prevention and liability should be dealt with together on equal footing and it was not considered appropriate to advance further on the topic until the law on international responsibility of States for internationally wrongful acts had been consolidated.

Some other delegations were of the opinion that future action should be deferred on the draft texts to allow more time for reflection and for the further evolution of State practice on these issues. In this regard, it was suggested that the question be revisited within 3 to 5 years. It was also suggested that a working group of the Sixth Committee be established to clarify some of the substantive difficulties highlighted during the debate and thereafter consider the final form of the draft principles.
Action taken by the Sixth Committee

At the 28th meeting, on 19 November 2007, the representative of New Zealand, on behalf of the Bureau, introduced a draft resolution entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm” (A/C.6/62/L.19).  At the same meeting, the Committee adopted draft resolution A/C.6/62/L.19 without a vote.

This agenda item was subsequently considered at the sixty-fifth session (2010)