CYIL vol. 14 (2023)

CYIL 14 (2023) ACTIVITIES OF THE SIXTH COMMITTEE OF THE UN GENERAL ASSEMBLY … be elusive. The Responsibility of States for Internationally Wrongful Acts will appear again on the agenda of the Sixth Committee during the 80 th session of the General Assembly. It is unlikely that the positions of delegations will have evolved significantly by then, so similar pressure from the pro-codification side and similar discussions can be expected. The topic of Prevention of transboundary harm from hazardous activities was first considered by the Sixth Committee in 2001 during the 56 th session of the General Assembly. At that time, an ILC product – the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 21 (hereinafter “PTHHA”) – was presented to the Committee, together with a recommendation to consider the elaboration of a convention on the basis of the draft articles. Since then, the General Assembly has considered the issue (later combined with the Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising from Hazardous Activities 22 ) in 2007, 2010. 2013, 2016 and 2019. The lack of consensus on any future action to be taken on the PTHHA led to the PTHHA being repeatedly taken note of and the Secretary-General being requested to submit a compilation of decisions of international courts, tribunals and other bodies referring to the articles and the principles. For the 77 th session, the Legal Adviser of the Permanent Mission of the Czech Republic to the UN was appointed by the Bureau of the Sixth Committee as the facilitator of the draft resolution under this agenda item. Given the longstanding lack of any progress on the issue and the lack of will to change the situation, the facilitator decided that it was the right time to bring the Sixth Committee’s consideration of the issue to an end (the delegates usually refer to this as a “sunsetting clause”). This idea was then tested in numerous bilateral meetings with Legal Advisers of interested States. A representative of the Secretariat mentioned, in an informal discussion, that this approach had been repeatedly introduced in the past by the Czech Legal Advisers in relation to some other agenda items. He said that this approach was legitimate, but “if you want to make a funeral, be sure to bring some flowers” (meaning that the resolution should express appreciation for the work of the ILC and make it clear that the product is not being rejected). During the debate, statements were made by 17 delegations, most of them stressing that the PTHHA represented a progressive development of international law (although reflecting, in some parts, customary international law). Once again, there was no consensus on whether to proceed with codification of the PTHHA or to retain the current non-binding form. The two delegations in favor of moving towards codification were those of Egypt and El Salvador (the latter one even suggesting the establishment of a working group on the issue). At one point, the debate became very politicized – as a result of the statement made on behalf of the AOSIS (Association of Small Island States). The AOSIS linked the issue of transboundary harm from hazardous activities to climate change and sea-level rise. This was despite the fact 21 International Law Commission. Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries . 2001. Available here: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_7_2001.pdf. 22 International Law Commission. Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, with commentaries . 2006. Available here: https://legal.un.org/ilc/texts/instruments/ english/commentaries/9_10_2006.pdf. Prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm

461