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Analytical Guide


International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law

last update: 6 February 2008

A. Mandate-

Based on the recommendation of the International Law Commission, arising out of its work on State Responsibility  
- G.A. Res. 3071 (XXVIII) of 30 November 1973 (E, F, S, R, C, A)
- G.A. Res. 3315 (XXIX) of 14 December 1974 (E, F, S, R, C, A)
- G.A. Res. 3495 (XXX) of 15 December 1975 (E, F, S, R, C, A)
- G.A. Res. 31/97 of 15 December 1976 (E, F, S, R, C, A)
- G.A. Res. 32/151 of 19 December 1977 (E, F, S, R, C, A)
B. Studies undertaken by the Secretariat and Reports of the Secretary-General
    1. 37th session of the International Law Commission (1985)
      - Survey of State Practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law, prepared by the Secretariat
- U.N. Doc. A/CN.4/384 (F) (in Ybk, 1985, vII(1), addendum (F))
    2. 47th session of the International Law Commission (1995)
       - Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law: Study prepared by the Secretariat
- U.N. Doc. A/CN.4/471 (F, S, R, C, A)

C. Reports of the Working Group or Sub-Committee
    1. 30th session of the International Law Commission (1978) 
      - Report of the Working Group on international liability for injurious consequences arising out of acts not prohibited by international law
- U.N. Doc. A/CN.4/L.284 and Corr.1 (F) (in ILC Report, A/33/10 (F), 1978, chp. VIII(C), annex)  
- ILC Report, A/33/10 (F), 1978, chp. VIII(C), par.178
    2. 44th session of the International Law Commission (1992)
      - Report of the Working Group on international liability for injurious consequences arising out of acts not prohibited by international law
- U.N. Doc. A/CN.4/L.470 (mimeograph)  
- ILC Report, A/47/10 (F), 1992, chp. IV(B), paras.281, 341-349 
    3. 47th session of the International Law Commission (1995)
      - Report of the Working Group on dangerous activities
- U.N. Doc. A/CN.4/L.510 (F, S, R, C, A)
- ILC Report, A/50/10 (F), 1995, chp. V(B)(4), paras. 406-409 
    4. 48th session of the International Law Commission (1996)
      - Report of the Working Group 
- U.N. Doc. A/CN.4/L.533 and Add.1 (F) (in ILC Report, A/51/10 (F), 1996, annex I)  
- ILC Report, A/51/10 (F),1996, chp. V(B)(1) and (2), paras.97-101
    5. 49th session of the International Law Commission (1997)
      - Report of the Working Group 
- U.N. Doc. A/CN.4/L.536 (F, S, R, C, A)
- ILC Report, A/52/10 (F), 1997, chp. VII, paras.165-167
D. Reports of the Special Rapporteur
    1. Four chapters: I - on the origins of the topic and the use of terms, II - on the relationship with the topic of State responsibility for wrongful acts, III - on a State's duty to respect the rights of other States to enjoy freedom from adverse outside influences, IV - on whether the scope of the topic should be limited to matters arising from the use or management of the physical environment.  
      - Preliminary Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (32nd session of the ILC (1980))
- U.N. Doc. A/CN.4/334 and Add.1 and Add.1/Corr.1, and Add.2 (F) (in Ybk, 1980, vII(1) (F))
- ILC Report, A/35/10 (F), 1980, chp. VII(B), paras.131-144
    2. The report contained four chapters and the text of a draft article entitled "Scope of the articles" (article 1): I - the relationship of the topic with the regime of State responsibility, referring in part to the difficulty caused by the use of the concept of "strict liability" and other similar terms; II - the intersection of harm and wrong, with a look at the Trail Smelter case; III - striking a balance of interests in regulating a transboundary harm; IV - the nature and scope of the topic on the basis of the discussions in the preceding chapters. 
      - Second Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (33rd session of the ILC (1981))
- U.N. Doc. A/CN.4/346 and Add.1 and 2 (F) (in Ybk, 1981, vII(1) (F)) 
- ILC Report, A/36/10 (F), 1981, chp. V(B), paras.165-199
    3. The third report contained two chapters: I - the relationship between the schematic outline and the principles that had been identified and had gained majority support in the Commission and the Sixth Committee; II - the schematic outline of the topic.  
      - Third Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (34th session of the ILC (1982))
- U.N. Doc. A/CN.4/360 and Corr.1 (F) (in Ybk, 1982, vII(1) (F)) 
- ILC Report, A/37/10 (F), 1982, chp. IV(B), paras.108-156
    4. Re-evaluation of the schematic outline in the light of views expressed in the Commission and in the Sixth Committee, and to provide a better and more complete commentary. 
      - Fourth Report of the Special Rapporteur, Mr. Robert Q Quentin-Baxter (35th session of the ILC (1983))
- U.N. Doc. A/CN.4/373 and Corr.1 and 2 (F) (in Ybk, 1983, vII(1) (F)) 
- ILC Report, A/38/10 (F), 1983, chp. VII(B), paras.283-302
    5. Eight sections: proposed articles; the regulatory function; the transboundary element; the element of a physical consequence; the third element: effects upon use or enjoyment; the role of international organizations; relationship with other rules of law; and relationship with other agreements. 
      - Fifth Report of the Special Rapporteur, Mr. Robert Q. Quentin-Baxter (36th session of the ILC (1984))
- U.N. Doc. A/CN.4/383 and Add.1 (F) (in Ybk, 1984, vII(1) (F))  
- ILC Report, A/39/10 (F), 1984, chp. V(B), paras.221-257
    6. Preliminary Report indicating the status of the work completed thus far and the lines on which the new Special Rapporteur intended to proceed. 
      - Preliminary Report of the Special Rapporteur, Mr. Julio Barboza (37th session of the ILC (1985))
- U.N. Doc. A/CN.4/394 (F) (in Ybk, 1985, vII(1) (F))
- ILC Report, A/40/10 (F), 1985, chp. VIII(A), paras. 291-292
    7. Use of certain terms, unity of the topic, scope of the topic, schematic outline, critical analysis of the schematic outline, activities, obligations, and injury caused in the absence of a treaty regime. 
      - Second Report of the Special Rapporteur, Mr. Julio Barboza (38th session of the ILC (1986))
- U.N. Doc. A/CN.4/402 and Corr.1, 2 and 4 (F) (in Ybk, 1986, VII(1) (F)) 
- ILC Report, A/41/10 (F), 1986, chp. VI(B), paras.190-219
    8. Submitted six draft articles: "Scope of the present articles" (art.1), "Use of terms" (art.2), "Various cases of transboundary effects" (art.3), "Liability" (art.4), "Relationship between the present articles and other international agreements" (art.5), and "Absence of effect upon other rules of international law" (art.6). 
      - Third Report of the Special Rapporteur, Mr. Julio Barboza (39th session of the ILC (1987))
- U.N. Doc. A/CN.4/405 and Corr. 1 and 2 (F) (in Ybk, 1987, vII(1) (F)) 
- ILC Report, A/42/10 (F), 1987, chp. IV(B), paras.123-94
    9. Submitted ten draft articles contained in two chapters: "General provisions" (chap.I), including the scope of activities, use of terms, attribution, relationship between the present articles and other international agreements, and absence of effect upon other rules of international law; and "Principles" (chap.II), including freedom of action and the limits thereto, co-operation, participation, prevention, and reparation. 
      - Fourth Report of the Special Rapporteur, Mr. Julio Barboza (40th session of the ILC (1988))
- U.N. Doc. A/CN.4/413 and Corr.1 (F) (in Ybk, 1988, vII(1) (F)) 
- ILC Report, A/43/10 (F), 1988, chp. II(B), paras.21-102
    10. Submitted revised draft articles 1 to 9 to replace the ten articles of chapter I and II referred to the Drafting Committee at previous session, and new draft articles 10 and 17 for chapter III of the draft. 
      - Fifth Report of the Special Rapporteur, Mr. Julio Barboza (41st session of the ILC (1989))
- U.N. Doc. A/CN.4/423 and Corr.1 and 2 (F) (in Ybk, 1989, vII(1) (F)) 
- ILC Report, A/44/10 (F), 1989, chp. V(B), paras. 307-397
    11. Proposed a complete outline of a set of 33 draft articles on the topic. 
      - Sixth Report of the Special Rapporteur, Mr. Julio Barboza (42nd session of the ILC (1990))
- U.N. Doc. A/CN.4/428 and Corr.1, 2 and 4, and Add.1 (F) (in Ybk, 1990, vII(1) (F))
- ILC Report, A/45/10 (F), 1990, chp. VII(B), paras.469-530
    12. Title of topic, nature of instrument, scope of topic, principle important to the topic, prevention of transboundary harm, liability for transboundary harm, and harm to the "global commons". 
      - Seventh Report of the Special Rapporteur, Mr. Julio Barboza (43rd session of the ILC (1991))
- U.N. Doc. A/CN.4/437 and Corr.1 (F) (in Ybk, 1991, vII(1) (F)) 
- ILC Report, A/46/10 (F), 1991, chp. V(B), paras.181-259
    13. Brief review of the status and the purpose of the articles that the Special Rapporteur had so far proposed, including a more extensive examination of the development of the principle of prevention and proposed nine articles thereto and an attempt to define the concepts of risk and harm more clearly. 
      - Eighth Report of the Special Rapporteur, Mr. Julio Barboza (44th session of the ILC (1992))
- U.N. Doc. A/CN.4/443 and Corr.1 and 3 (F) (in Ybk, 1992, vII(1) (F)).
- ILC Report, A/47/10 (F), 1992, chp. IV(B)(1), paras.281-340
    14. Devoted entirely to the issues relating to the prevention of transboundary harm of activities with a risk of such harm. Described the nature and content of the concept of prevention and proposed 11 articles (art.11 to 20 bis): prior authorization (art.11), transboundary impact assessment (art.12), pre-existing activities (art.13), performance of activities (art.14), notification and information (art.15), exchange of information (art.16), national security and industrial secrets (art.17), prior consultation (art.18), rights of the State presumed to be affected (art.19), factors involved in a balance of interests (art.20), and non-transference of risk or harm (art.20 bis).  
      - Ninth Report of the Special Rapporteur, Mr. Julio Barboza (45th session of the ILC (1993))
- U.N. Doc. A/CN.4/450 (F) (in Ybk, 1993, vII(1) (F)).
- ILC Report, A/48/10 (F), 1993, chp. III(B), paras.106-192
    15. Dealt with three issues: prevention ex post facto, State liability and civil liability. Structure: introduction, response measures, State liability, civil liability, common provision on State liability and civil liability, procedural channels.  
      - Tenth Report of the Special Rapporteur, Mr. Julio Barboza (46th session of the ILC (1994))
- U.N. Doc. A/CN.4/459 (F) (in Ybk, 1994, vII(1) (F)).
- ILC Report, A/49/10 (F), 1994, chp. V(B)(2), paras. 362-379
    16. The role of harm in the articles on this topic. Characterized it as the condition sine qua non of any liability and compensation which may be due. The focus was on harm to the environment. Proposed a text for the definition of harm. 
      - Eleventh Report of the Special Rapporteur, Mr. Julio Barboza (47th session of the ILC (1995))
- U.N. Doc. A/CN.4/468 (F, S, R, C, A)
- ILC Report, A/50/10 (F), 1995, chp. V(B)(2) and (3), paras. 374-405
    17. Reviewed the various liability regimes proposed by the Special Rapporteur in his previous reports. Stucture/ main issues: prevention; principles; liability: the schematic outline, the regime of the sixth report, the regime of the tenth report, and the Commission's options. The addendum, "Articles in order", reviewed what had been done and numbered the articles consecutively.  
      - Twelfth Report of the Special Rapporteur, Mr. Julio Barboza (48th session of the ILC (1996))
- U.N. Doc. A/CN.4/475 (F, S, R, C, A) and Corr.1 (F, S, R, C, A) and Add.1 (F, S, R, C, A) and Add.1/Corr.1 (F, S, R, C, A)
- ILC Report, A/51/10 (F), 1996, chp. V(B), paras. 96 and 97
E. Reports of the Drafting Committee
    1. 45th session of the International Law Commission (1993)
      - Titles and texts adopted by the Drafting Committee on first reading: art. 1, 2, 11, 12 and 14
- U.N. Doc. A/CN.4/L.487 and Corr. 1 (French and Spanish only) (F) (in Ybk, 1993, vI (F), 2318th mtg (13 July 1983))
    2. 46th session of the International Law Commission (1994)
      - Titles and texts adopted by the Drafting Committee at the forty-fifth and forty-sixth sessions of the Commission
- U.N.Doc. A/CN.4/L.494 and Corr.1 (F) (in Ybk, 1994, vI (F), 2362nd to 2365th mtgs (8 to 13 July 1994)) 
    3. 47th session of the International Law Commission (1995)
       - Titles and texts adopted by the Drafting Committee at the forty-seventh session of the Commission
- U.N. Doc. A/CN.4/L.508 (F, S, R, C, A)
F. Comments by Governments
    1. 36th session of the International Law Commission (1984)
      - Replies received (from international organizations) in response to the questionnaire prepared by the Special Rapporteur with the assistance of the Secretariat
- U.N. Doc. A/CN.4/378 (F) (in Ybk, 1984, vII(1) (F))
    2. 49th session of the International Law Commission (1997) 
      - Comments and observations received from Governments
- U.N.Doc. A/CN.4/481 (F, S, R, C, A) and Add.1 (F, S, R, C, A)
G. Other
    1. 46th session of the International Law Commission (1994)
      - Texts of draft articles with commentaries thereto, provisionally adopted by the Commission at its forty-sixth session: articles 1, 2 (subparas. (a), (b) and (c)), 11 to 14 bis [20 bis], 15-16 bis and 17-20
- U.N. Doc. A/CN.4/L.503 (F)
    2. 47th session of the International Law Commission (1995)
      - Text of draft articles adopted so far by the Commission on first reading
- U.N. Doc. A/CN.4/L.519 (F, S, R, C, A)
H. Reports of the International Law Commission
    1. Report of the International Law Commission on the work of its twenty-sixth session, 6 May to 26 July 1974  
      - The Commission decided to place the topic on its general programme of work.
- ILC Report, A/9610/Rev.1 (F) (A/29/10), 1974, chp. VI(C), par.163 
- Ybk, 1974, vII(1) (F)
    2. Report of the International Law Commission on the work of its thirtieth session, 8 May to 28 July 1978  
      - The Commission set up at Working Group to consider, in a preliminary manner, the scope and nature of the topic. It appointed Mr. Robert Quentin-Baxter as Special Rapporteur for the topic, and invited him to prepare a preliminary report; and requested the Secretariat to collect and survey relevant materials. 
      - Discussion in Plenary: 1502nd (F) mtg (16 June 1978), 1525th (F) (25 July 1978) and 1527th (F) mtgs (27 July 1978)
- ILC Report, A/33/10 (F), 1978, chp. VIII(C), paras. 170-178 
- Ybk, 1978, vII(2) (F) 



- Ybk, 1978, vI (F)

    3. Report of the International Law Commission on the work of its thirty-second session, 5 May to 25 July 1980  
- ILC Report, A/35/10 (F), 1980, chp. VII, paras. 123-144 
- Ybk, 1980, vII(2) (F)
- Ybk, 1980, vI (F)
    4. Report of the International Law Commission on the work of its thirty-third session, 4 May to 24 July 1981 
      - The Commission considered the second report of the Special Rapporteur.  
      - Discussion in Plenary: 1685th (F), 1686th (F) and 1687th (F) mtgs (6 to 9 July 1981), and 1690th (F) mtg (14 July 1981)
- ILC Report, A/36/10 (F), 1981, chp. V, paras. 162-199 
- Ybk, 1981, vII(2) (F) 
- Ybk, 1981, vI (F)
    5. Report of the International Law Commission on the work of its thirty-fourth session, 3 May to 23 July 1982 
- ILC Report, A/37/10 (F), 1982, chp. IV, paras. 104-156 
- Ybk, 1982, vII(2) (F) 
- Ybk, 1982, vI (F)
    6. Report of the International Law Commission on the work of its thirty-fifth session, 3 May to 22 July 1983 
      - Discussed the Special Rapporteur's fourth report dealing with preliminary questions. 
      - Discussion in Plenary: 1800th (F) and 1801st (F) mtgs (11 and 12 July 1983)
- ILC Report, A/38/10 (F), 1983, chp. VIII, paras.278-302 
- Ybk, 1983, vII(2) (F) 
-Ybk, 1983, vI (F)
    7. Report of the International Law Commission on the work of its thirty-sixth session, 7 May to 27 July 1984 
      - During the debate, some members devoted their main attention to the Special Rapporteur's fourth report and to questions concerning the nature of the topic and its future treatment by the Commission. Other members found it convenient to relate their remarks to the development of the topic in the Special Rapporteur's fifth report and in particular to the articles proposed in that report. Though significant differences of opinion and emphasis remained, there was almost unanimous agreement that the Commission's work on the topic, as now delineated, should continue. The Special Rapporteur was, in particular, encouraged to continue his research by reference to the full range of treaty and other materials relevant to the avoidance and repair of physical transboundary harm. The Commission took note that it was not proposed to refer draft articles 1 to 5 to the Drafting Committee at the present stage, but invited the Special Rapporteur to continue to prepare draft articles which could be considered together with draft articles 1 to 5.  
      - Discussion in Plenary: 1848th (F), 1849th (F) , 1850th (F), 1851st (F), 1852nd (F) and 1853rd (F) mtgs (26 June to 3 July 1984)
- ILC Report, A/39/10 (F), 1984, chp. V, paras.215-257 
- Ybk, 1984, vII(2) (F) 













- Ybk, 1984, vI (F)

    8. Report of the International Law Commission on the work of its thirty-seventh session, 6 May to 26 July 1985  
      - Appointed Mr. Julio Barboza Special Rapporteur to replace Mr. Quentin-Baxter. Was not able to discuss the new Special Rapporteur's Preliminary Report at the session. 
      - Discussion in Plenary: 1910th (F), and 1928th (F) and 1929th (F) mtgs (25 June 1985) 
- ILC Report, A/40/10 (F), 1985, chp. VIII(A), paras.291-292 
- Ybk, 1985, vII(2) (F)


- Ybk, 1985, vI (F)

    9. Report of the International Law Commission on the work of its thirty-eighth session, 5 May to 11 July 1986 
      - The Special Rapporteur introduced both his preliminary and second reports. A brief discussion was held on the basis of these reports. 
      - Discussion in Plenary: 1972nd (F), 1973rd (F), 1974th (F), 1975th (F) and 1976th (F) mtgs (20 to 26 June 1986)
- ILC Report, A/41/10 (F), 1986, chp. VI, paras.186-219 
- Ybk, 1986, vII(2) (F) 

- Ybk, 1986, vI (F)
    10. Report of the International Law Commission on the work of its thirty-ninth session, 4 May to 27 July 1987 
      - The Commission had before it the Special Rapporteur's second and third reports. Extensive debate was held in the Commission on the basis of these reports, and the Special Rapporteur decided not to request that the Commission refer the six draft articles to the Drafting Committee. He drew several conclusions following the debate, inter alia, that the Commission must endeavour to fulfill the mandate of the General Assembly on this topic by regulating activities which have or may have transboundary physical consequences adversely affecting persons or things.  
      - Discussion in Plenary: 2015th (F), 2016th (F), 2017th (F), 2018th (F), 2019th (F), 2020th (F), 2021st (F), 2022nd (F) and 2023rd (F) mtgs (16 to 30 June 1987)
- ILC Report, A/42/10 (F), 1987, chp. IV, paras.119-194 
- Ybk, 1987, vII(2) (F) 
 






- Ybk, 1987, vI (F)

    11. Report of the International Law Commission on the work of its fortieth session, 9 May to 29 July 1988 
      - The Commission had before it the Special Rapporteur's fourth report, containing ten draft articles in two chapters. After the conclusion of the debate the Commission referred draft articles 1 to 10 to the Drafting Committee. The Commission invited Governments to express their views on the role which risk and harm should play in the topic. 
      - Discussion in Plenary: 2044th (F) and 2045th (F) mtgs (11 and 13 May 1988), 2047th (F), 2048th (F) and 2049th (F) mtgs (18 to 20 May 1988), 2074th (F) and 2075th (F) mtgs (6 to 7 July 1988)
- ILC Report, A/43/10 (F), 1988, chp. II, paras.16-102 
- Ybk, 1988, vII(2) (F) 



- Ybk, 1988, vI (F)

    12. Report of the International Law Commission on the work of its forty-first session, 2 May to 21 July 1989