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Sixty-eighth session

Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm (Agenda item 83)

Summary of work

Background (source: A/68/100)

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, 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. At its fifty-sixth session, the Assembly expressed its appreciation for the valuable work done on the prevention aspects and requested the Commission to resume consideration of the liability aspects of the topic (resolution 56/82).

In 2002, 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”. 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 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. At its sixty-first session, the Assembly took note of the principles (resolution 61/36, annex) 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).

At its sixty-second session, the General Assembly, having considered the two aspects of the topic as concluded by the Commission, commended the articles on prevention (resolution 62/68, annex) and the principles to Governments and decided to include the item in the provisional agenda of its sixty-fifth session (resolution 62/68).

At its sixty-fifth session, the General Assembly once again commended to the attention of Governments the articles on prevention, without prejudice to any future action, as recommended by the Commission regarding the articles, and the principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, without prejudice to any future action, as recommended by the Commission regarding the principles; invited 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; and requested the Secretary-General to submit a compilation of decisions of international courts, tribunals and other bodies referring to the articles and the principles (resolution 65/28).

Consideration at the sixty-eighth session

The Sixth Committee considered the item at its 16th, 28th and 29th meetings, on 22 October and on 8 and 15 November 2013 (see A/C.6/68/SR.16, 28 and 29).  For its consideration of the item, the Committee had before it the reports of the Secretary-General (A/68/94 and A/68/170).

Statements were made by the representatives of: New Zealand (also on behalf of Australia and Canada), South Africa, the United States of America, Portugal, Micronesia (Federated States of), Tonga, India, Viet Nam, Malaysia, the United Kingdom of Great Britain and Northern Ireland, Chile, Israel and the Russian Federation.

Several delegations reiterated that the work of the International Law Commission in this area represented an important contribution to the progressive development of international law and its codification. They encouraged States to continue to use the draft articles and draft principles as a guide for negotiating bilateral and multilateral agreements and developing domestic legislative and policy measures to address the issue. Some delegations asserted that the draft articles and the draft principles already constituted authoritative guidance for States and judicial bodies in the adjudication of disputes. It was also expressed that the prevention of transboundary harm was integral in the effort to address climate change and protect the oceans and the deep sea bed.

Several delegations made specific comments on the draft articles and draft principles. It was noted, in particular, that the draft articles reflected the due diligence obligation of all States under international law to prevent transboundary harm arising out of hazardous activities.

On final form of the draft articles and the draft principles, several delegations reiterated the position that the draft articles and draft principles would be most effective if they remained in their current form.  While not excluding the possibility of the adoption of an international convention, it was also noted that it was premature at this time to consider such an instrument. The suggestion was also made that there was a need to have a unified co nvention incorporating both the draft articles and the draft principles.  As a preliminary step, it was suggested that the draft articles and draft principles should be combined into a single draft instrument, which could then be considered by States.  It was noted that the adoption of such a unified convention may take a significant amount of time and, as an interim measure, further consultations with States on the outstanding issues and relevant practice were welcomed.  It was also suggested that the Secretariat should carry out a comprehensive analytical study on the subject.  The view was also expressed that a Working Group of the Sixth Committee be created to consider the elaboration of an international convention on the basis of both the draft articles and the draft principles.

Action taken by the Sixth Committee

At the 28th meeting, on 8 November, the representative of Chile, 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.6/68/L.20).  At the 29th meeting, on 15 November, the Committee adopted draft resolution A/C.6/68/L.20 without a vote.

By the terms of the resolution, the General Assembly would, inter alia, 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. Finally, it would include in the provisional agenda of its seventy-first session the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.