The General Assembly, in resolution 53/102 of 8 December 1998 (E, F, S, R, C, A), requested the Commission, while continuing its work on prevention, to examine other issues arising out of the topic, taking into account comments made by Governments, either in writing or in the Sixth Committee, and to submit its recommendations on the future work to be done on these issues to the Sixth Committee.

Extracts from The Work of the International Law Commission, 6th ed., vol. 1

In his second report, [1]  the Special Rapporteur on the prevention part of the topic, dealt, apart from the issues related to the first part of the topic (prevention), with the treatment of the concept of international liability in the Commission since the topic was placed on its agenda; negotiations on liability issues in other international fora; and options with respect to the future course of action on the question of liability. The Commission considered the report at its fifty-first session, in 1999, and decided to defer the consideration of the question of international liability, pending completion of the second reading of the draft articles on the prevention of transboundary damage from hazardous activities.

The General Assembly, in resolutions 54/111 of 9 December 1999 (E, F, S, R, C, A) and 55/152 of 12 December 2000 (E, F, S, R, C, A), requested the Commission to resume the consideration of the liability aspects of the topic as soon as the second reading of the draft articles on prevention was finalized. The General Assembly, by resolution 56/82 of 12 December 2001 (E, F, S, R, C, A), requested the Commission to resume, during its fifty-fourth session, its consideration of the liability aspects of the topic, bearing in mind the interrelationship between prevention and liability, and taking into account the developments in international law and comments by Governments.

At its fifty-fourth session, in 2002, the Commission decided to include the topic “International liability for injurious consequences arising out of acts not prohibited by international law” on its programme of work and to begin consideration of the second part of the topic “International liability in case of loss from transboundary harm arising out of hazardous activities”. The Commission established a Working Group, chaired by Pemmaraju Sreenivasa Rao, to consider the conceptual outline of the topic. The Working Group recommended continuing to limit the scope of the remainder of the topic concerning liability to the same activities that were covered under the first part of the topic concerning prevention, which would effectively link the work on the two parts of the topic. The Working Group also set out the following initial understandings on the topic: (a) a threshold would have to be determined to trigger the application of the regime on allocation of loss caused; and (b) the loss to be covered should include loss to (i) persons, (ii) property, including elements of State patrimony and national heritage, and (iii) environment within national jurisdiction. The Working Group also considered the approach to be taken regarding the role of the operator and the State in the allocation of loss. The Commission adopted the report of the Working Group, as amended by the Commission. The Commission also appointed Mr. Rao as Special Rapporteur for the topic. [2]

The General Assembly, in resolution 57/21 of 19 November 2002 (E, F, S, R, C, A), took note of the Commission’s decision to proceed with its work on the topic, as requested by the Assembly in resolution 56/82.

At its fifty-fifth session, in 2003, the Commission had before it the Special Rapporteur’s first report [3]  on the legal regime for allocation of loss in case of transboundary harm arising out of hazardous activities. The report reviewed the work of the Commission in previous years, analysed the liability regimes of various instruments and offered conclusions for the consideration of the Commission. After considering the report, the Commission decided to establish a Working Group, under the chairmanship of the Special Rapporteur, to assist the Special Rapporteur in considering the future orientation of the topic in the light of his report and the debate in the Commission. [4]

At its fifty-sixth session, in 2004, the Commission had before it the second report [5] of the Special Rapporteur on the legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities. The Commission also had the Survey of Liability Regimes relevant to the topic, updated by the Secretariat. [6] The Commission established a working group under the chairmanship of Mr. Pemmaraju Sreenivasa Rao to examine the proposals submitted by the Special Rapporteur, taking into account the debate in the Commission, with view to recommending draft principles ripe for referral to the Drafting Committee, while also continuing discussions on other issues, including the form that work on the topic should take. In its work the Working Group reviewed and revised the 12 draft principles submitted by the Special Rapporteur and it recommended that the 8 draft principles contained in its report [7]be referred to the Drafting Committee. The Commission received the oral report of the Chairman of the Working Group and decided to refer the eight draft principles to the Drafting Committee. The Commission also requested the Drafting Committee to prepare a text of a preamble. The Commission subsequently considered the report of the Drafting Committee [8] and adopted on first reading a set of eight draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities. [9] The Commission also decided, in accordance with articles 16 and 21 of its Statute to transmit the draft principles through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2006. [10]

The General Assembly, in resolution 59/41 of 2 December 2004 (E, F, S, R, C, A), expressed its appreciation to the International Law Commission for the completion of the first reading of the draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, and drew the attention of Governments to the importance for the International Law Commission of having their views on the draft principles on Allocation of loss in the case of transboundary harm arising out of hazardous activities.

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