Sixth Committee (Legal) — 68th session

Responsibility of States for internationally wrongful acts (Agenda item 77)

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Documentation

Summary of work

Background (source: A/68/100)

At its fifty-sixth session, in 2001, the General Assembly, under the item entitled “Report of the International Law Commission on the work of its fifty-third session”, considered chapter IV of the report of the Commission, which contained the draft articles on responsibility of States for internationally wrongful acts, together with a recommendation that the Assembly take note of the draft articles and that it consider, at a later stage, the possibility of convening an international conference of plenipotentiaries to examine the draft articles on responsibility of States for internationally wrongful acts with a view to concluding a convention on the topic. At the same session, the General Assembly decided to include in the provisional agenda of its fifty-ninth session an item entitled “Responsibility of States for internationally wrongful acts” (resolution 56/83).

At its fifty-ninth session, the General Assembly requested the Secretary-General to invite Governments to submit their written comments on any future action regarding the articles; also requested the Secretary-General to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the articles, and to invite Governments to submit information on their practice in that regard; and further requested him to submit that material to the Assembly at its sixty-second session (resolution 59/35).

At its sixty-second session, the General Assembly requested the Secretary-General to update the compilation of decisions of international courts, tribunals and other bodies referring to the articles, and to invite Governments to submit information on their practice in that regard; also requested the Secretary-General to submit that material well in advance of its sixty-fifth session; and decided to further examine, within the framework of a working group of the Sixth Committee, the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the articles (resolution 62/61).

At its sixty-fifth session, the General Assembly acknowledged the importance of the articles on responsibility of States for internationally wrongful acts, and commended them once again to the attention of Governments, without prejudice to the question of their future adoption or other appropriate action; requested the Secretary-General to invite Governments to submit further written comments on any future action regarding the articles; also requested the Secretary-General to update the compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite Governments to submit information on their practice in that regard; further requested the Secretary-General to submit that material well in advance of its sixty-eighth session; and decided to further examine, within the framework of a working group of the Sixth Committee and with a view to taking a decision, the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the articles (resolution 65/19).

Consideration at the sixty-eighth session

The Sixth Committee considered the item at its 15th, 28th and 29th meetings, on 21 October, and 8 and 15 November 2013, respectively (see A/C.6/68/SR.15, 28 and 29).

Pursuant to resolution 65/19, the Committee decided, at its 2nd meeting, on 7 October 2013, to establish a Working Group on the Responsibility of States for Internationally Wrongful Acts, in order to fulfil the mandate conferred by the General Assembly on the Committee, namely, to further examine the question of a convention on the topic or other appropriate action on the basis of the articles drafted by the International Law Commission (ILC). At the same meeting, the Committee decided to open the Working Group to all States Members of the United Nations or members of the specialized agencies or of the International Atomic Energy Agency. The Working Group, which was chaired by Mr. Nikolas Stuerchler (Switzerland), held one meeting, on 21 October 2013. At the 28th meeting of the Committee, on 8 November, the Chair of the Working Group presented an oral report on the work of the Working Group.

Statements were made, in plenary, by the representatives of: Australia (also on behalf of Canada and New Zealand), Denmark (on behalf of the Nordic countries), Cuba (on behalf of the Community of Latin American and Caribbean States (CELAC)), Belarus, Cuba, the United States of America, Guatemala, Portugal, Saudi Arabia, India, the United Kingdom of Great Britain and Northern Ireland, Chile, Israel, the Russian Federation [in English], Iran (Islamic Republic of), Malaysia, Indonesia and Venezuela (Bolivarian Republic of).

In their general comments, delegations took note, with appreciation, of the report of the Secretary-General on comments and information received from Governments (A/68/69 and Add.1), as well as the updated compilation of decisions of international courts, tribunals and other bodies referring to the articles on Responsibility of States for internationally wrongful acts (A/68/72). Delegations expressed appreciation for the work of the International Law Commission in this area and noted that the articles had become a useful and authoritative statement of the rules on State responsibility.

Regarding future action on the articles, three options were raised: (1) the negotiation of a convention on the basis of the State responsibility articles; (2) the adoption of the articles by the General Assembly in the form of a declaration or resolution; or (3) the retention of the articles as adopted by the ILC with no further action.

Several delegations supported the negotiation of a convention on the basis of the articles, as a convention would contribute to legal certainty and the international rule of law. It was also suggested that a convention would lessen the selective and inconsistent application of the articles in their present form. The view was expressed that the articles were a well-conceived and balanced set of secondary rules, and reference to the articles in the practice of States, as well as the decisions of various international courts, tribunals and other bodies, demonstrated the general acceptance of the articles in the international community. Certain delegations also called for the convening of a diplomatic conference to adopt the articles as an international convention. 

A number of delegations indicated a willingness to support adoption by the General Assembly of the State responsibility articles in the form of a declaration or resolution.

Several other delegations did not favour the negotiation of a convention, indicating that the negotiation of a convention would threaten the delicate balance established in the articles. The concern was raised that the articles adopted by the ILC reflected a widely shared consensus and had proven their worth as a persuasive source of guidance for both Governments and courts. It was also observed that it would be premature to consider the articles in their entirety as settled customary international law. According to another view, further consideration of the articles would be needed before a decision could be made on whether to negotiate a convention. It was suggested that the rules on State responsibility should develop organically rather than through negotiations in a multilateral conference, and that further discussion of this topic should be deferred until it was clear that the time was ripe for action in relation to the articles.

Action taken by the Sixth Committee

At the 28th meeting, on 8 November 2013, the representative of Switzerland introduced, on behalf of the Bureau, the text of a draft resolution entitled “Responsibility of States for internationally wrongful acts” (A/C.6/68/L.19). At the 29th meeting, on 15 November 2013, the Committee adopted draft resolution A/C.6/68/L.19 without a vote.

Under the draft resolution, the General Assembly would acknowledge that a growing number of decisions of international courts, tribunals and other bodies refer to the articles, continue to acknowledge the importance of the articles, and commend them once again to Governments. It would also request the Secretary-General to update once again the compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite Governments to submit information on their practice in this regard, and further request the Secretary-General to submit this material well in advance of its sixty-eighth session. Finally, the General Assembly would decide to include in the provisional agenda of its seventy-first session the item entitled “Responsibility of States for internationally wrongful acts” and to further examine, with a view to taking a decision, within the framework of a working group of the Sixth Committee, the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the articles.

Subsequent action taken by the General Assembly

This agenda item was subsequently considered at the seventy-first session (2016).
A/68/69 - Additional comments by States (pertaining to the content of the State responsbility articles):
Kenya (English)
Lebanon (Original: Arabic) (English)
Panama (Original: Spanish) (English)


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