Sixth Committee (Legal) 〞 71st session
Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm (Agenda item 80)
- Authority:
Documentation
- + 〞 Report of the Secretary-Genera: comments and observations received from Governments
- 〞 Report of the Secretary-General: compilation of decisions of international courts, tribunals and other bodies
Summary of work
Background (source: )
Following a recommendation by the General Assembly in 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 ().
In 2002, the Commission resumed its work on the second part 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. It 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 (, annex) and commended them to the attention of Governments. It also 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 (, annex) and the principles to Governments and decided to include the item in the provisional agenda of its sixty-fifth session (resolution 62/68).
The General Assembly has considered the item triennially since its sixty-fifth session (resolutions and ).
At its sixty-eighth session, the General Assembly once again commended to the attention of Governments, as recommended by the Commission, the articles on prevention and the principles on the allocation of loss, without prejudice to any future action; 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 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 ().
Consideration at the seventy-first session
The Sixth Committee considered the item at its 18th, 31st and 32nd meetings, on 20 October and on 4 and 7 November 2016 (see , and ). For its consideration of the item, the Committee had before it the reports of the Secretary-General (, and ).
Statements were made by the representatives of: Australia (also on behalf of Canada and New Zealand (CANZ)), El Salvador, Israel, the Philippines, Venezuela (Bolivarian Republic of), the United Kingdom of Great Britain and Northern Ireland, Viet Nam, the United States of America, China [in English], Malaysia and Iran (Islamic Republic of).
Several delegations stated 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. Some delegations emphasized that, regardless of the status of the articles and principles, international law imposed certain obligations on States regarding prevention, cooperation, prior authorization, notification, information and due diligence. States were also encouraged to continue to be guided by the articles and principles.
A number of delegations made substantive comments on the articles and principles. The view was expressed that the articles and principles could not prevail over lex specialis and would not apply in situations governed by a specific legal regime, such as the law of armed conflict. It was also suggested that the definition of “state of origin” should be reconsidered in light of the many transnational corporations operating in developing countries.
With regard to the final form of the articles and the principles, some delegations reiterated that they would be most effective if they remained in their current form. A preference was expressed for addressing the relevant issues through sector-specific and regional instruments, rather than a general convention. On the other hand, it was noted that a unified convention incorporating both the articles and the principles could be useful. As a preliminary step, it was suggested that the articles and principles should be combined into a single draft instrument. Some delegations emphasized that any consideration regarding the future of the articles and principles should be based on a study of their application in the bilateral, regional and multilateral practice of States. A call was made for further analysis of national practices in this regard. Finally, it was noted that while negotiations over an international instrument might be premature, international cooperation to build scientific and technical capacities could help developing countries prevent transboundary harm.
Action taken by the Sixth Committee
At the 31st meeting, on 4 November, the representative of Czechia, 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” (). At the 32nd meeting, on 7 November, the Committee adopted draft resolution A/C.6/71/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 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-fourth session the item entitled “Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm”.
Subsequent action taken by the General Assembly
- Report of the Sixth Committee: ?
- GA resolution:
The agenda item will be considered next at the seventy-fourth session (2019).
