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Sixty-fifth session

Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm (Agenda item 81)

Summary of work

Background (source: A/65/100)

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).

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” (General Assembly resolution 56/82). 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 Assembly that it endorse the draft principles by a resolution and urge States to take national and international action to implement them (resolution 61/136).

At its sixty-second session, the General Assembly once again commended the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities to the attention of Governments, without prejudice to any future action, as recommended by the Commission regarding the principles; invited Governments to submit comments on any future action, in particular on the form of the respective articles and principles, 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 and principles; and decided to include in the provisional agenda of its sixty-fifth session the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm” (resolution 62/68).

Consideration at the sixty-fifth session

The Sixth Committee considered agenda item 81 at its 17th and 27th meetings, on 21 October and 5 November 2010. Statements were made by the representatives of New Zealand (also on behalf of Australia and Canada), Mexico, Libyan Arab Jamahiriya, Russian Federation, Malaysia, Portugal, Viet Nam, United States of America, Venezuela (Bolivarian Republic of), India, United Kingdom of Great Britain and Northern Ireland, China and Austria.The views of the representatives who spoke during the Committee’s consideration of the item are reflected in the relevant summary records (A/C.6/65/SR.17 and 27).

In their comments delegations welcomed the adoption of resolution 61/36 to which are annexed the principles on allocation of loss in the case of such harm and resolution 62/38 to which are annexed the articles on prevention of transboundary harm from hazardous activities. It was observed that the work of the International Law Commission in the area was an important contribution to the progressive development and its codification and the draft articles and the principles already constituted authoritative guidance for States and judicial bodies. States were encouraged to be guided by the articles and the principles when negotiating agreements, as well as in taking domestic measures.

While some delegations made comments on the substance of the articles and the principles, the main focus in the interventions was on the form that the draft articles and the draft principles should take, bearing in the recommendations of the International Law Commission 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.

Some delegations stated that there was no added value in attempting to transform the drafts into a convention without broad support from member States, with some noting that they supported retaining the draft principles and the draft articles in their current form. Some other delegations observed that there was no need for a convention on the prevention of transboundary harm or allocation of loss, while others agreed to proceed on the basis of the recommendations of the Commission.

Indeed, some delegations expressed support for the adoption of the draft articles in the form of a convention, noting in some instances that there was need to have a unified draft covering both the prevention and the liability aspects. Without ruling out the possibility of adopting a convention, some other delegations noted that it was premature to adopt such a convention, for the time being the adoption of a declaration was preferred. Given that the two sets of drafts contained elements of progressive development of international law, some other delegations stated that the focus should be on monitoring developments in State practice, and when the conditions were ripe the possibility of formulating international conventions on the basis of the two drafts could be revisited. Yet some other delegations noted that it was necessary to examine the application of the draft articles at the bilateral and regional levels before the draft articles are adopted in any convention, while also recommending a review of decisions on the application of the principles before taking future action on them. Some delegations preferred to postpone a decision on the principles while expressing willingness on adopt a convention on the draft articles, on the basis of State practice, in the framework of a working group of the Sixth Committee. It was also suggested that such a working group would take into account new developments and seek to harmonize the texts into one single instrument. It was also suggested that the Secretariat carry out a comprehensive analytical study on the subject.

Action taken by the Sixth Committee

At the 27th meeting, on 5 November, the representative of the Republic of Korea, 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.6/65/L.13). At the same meeting, the Sixth Committee adopted the draft resolution without a vote. By the terms of the resolution the Assembly would invite Governments to submit further comments on any future action, in particular on the form of the respective articles and principles, 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 and principles. It would also request the Secretary-General to submit a compilation of decisions of international courts, tribunals and other bodies referring to the articles and the principles.

This agenda item was subsequently considered at the sixty-eighth session (2013).