Sixth Committee (Legal) — 71st session

Responsibility of States for internationally wrongful acts (Agenda item 74)

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Documentation

Summary of work

Background (source: A/71/100)

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 took note of the articles on responsibility of States for internationally wrongful acts (“the articles”) and commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action. The Assembly also 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 the Secretary-General 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 and sixty-eighth sessions, 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 and seventy-first sessions, respectively; 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 (resolutions 65/19 and 68/104).

Consideration at the seventy-first session

The Sixth Committee considered the item at its 9th, 31st and 33rd meetings, on 7 October and 4 and 11 November 2016, respectively (see A/C.6/71/SR.9, 31 and 33).

Pursuant to resolution 68/104, the Committee decided, at its 1st meeting, on 3 October 2016, 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. 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. Patrick Luna (Brazil), held three meetings, on 13, 19 and 21 October 2016. At the 31st meeting of the Committee, on 4 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: the Dominican Republic (on behalf of the Community of Latin and Caribbean States (CELAC)), South Africa (on behalf of the African Group), Finland (on behalf of the Nordic countries), New Zealand (also on behalf of Australia and Canada (CANZ)), Cuba, El Salvador, Singapore, the Russian Federation, Venezuela (Bolivarian Republic of), the United Kingdom of Great Britain and Northern Ireland, Israel, Algeria, Portugal, Greece, Iran (Islamic Republic of), Peru, Malaysia, the United States of America, Mexico and China [in English].

In their general comments, delegations took note, with appreciation, of the report of the Secretary-General on comments and information received from Governments (A/71/79), as well as the updated compilation of decisions of international courts, tribunals and other bodies (A/71/80) referring to the articles. Delegations expressed appreciation for the work of the International Law Commission on the topic 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 considered: (1) the negotiation of a convention on the basis of the 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 in their present form with no further action. Delegations looked forward to discussing the future of the articles in the framework of a working group. Several delegations pointed out that the decision on a future course of action should not be deferred, also because such a decision would have an impact on other projects of the International Law Commission such as the articles on diplomatic protection and the articles on the responsibility of international organizations. It was suggested that any decision on how to proceed with respect to the articles should be done by consensus, given their seminal nature and central importance to public international law. As an intermediate measure, it was proposed that the working group could meet annually to allow for a thorough step-by-step discussion on the future of the articles, possibly on the basis of an options paper on the different methods of work and procedures prepared by the Secretary-General.

Many delegations supported negotiations of a convention on the basis of the articles, as a convention would contribute to legal certainty, the international rule of law and peaceful international relations. 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 in the decisions of various international courts, tribunals and other bodies, demonstrated the general acceptance of the articles in the international community. An international convention would not unravel the delicate balance struck by the articles and allow for binding, lasting standards. Several delegations also supported the convening of a diplomatic conference to adopt the articles as an international convention. It was emphasized that the articles would not have to be negotiated de novo and that any amendments would have to be accepted through voting procedures. 

The view was also expressed that the most viable approach regarding the future of the State responsibility articles was their adoption in the form of a declaration or resolution of the General Assembly.

A number of delegations did not favour negotiating a convention at the current time, indicating that the negotiation of a convention would threaten the delicate balance established in the articles, or dilute their influence. It was noted that the articles in their present form reflected a widely shared consensus, notwithstanding different views on specific details, and had proven their value as a persuasive source of guidance for both Governments and courts. Concern was expressed that the resulting convention might deviate from existing rules or not enjoy widespread acceptance by States. Reiterating past positions on the question of a convention, delegations stressed that while areas of uncertainty and disagreement remained, moves towards adopting a convention would be premature and counterproductive. As the relevant customary international law was not entirely settled, the discussion should be deferred. It was also emphasized that the articles should be permitted to develop organically rather than through negotiations in a multilateral conference.

Action taken by the Sixth Committee

At the 33rd meeting, on 11 November 2016, the representative of Brazil introduced, on behalf of the Bureau, the text of a draft resolution entitled “Responsibility of States for internationally wrongful acts” (A/C.6/71/L.28). At the same meeting, the Committee adopted draft resolution A/C.6/71/L.28 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 on responsibility of States for internationally wrongful acts. It would request the Secretary-General to prepare a technical report listing, in a tabular format, the references to the articles contained in the compilation of decisions of international courts, tribunals and other bodies referring to the articles prepared since 2001, as well as references to the articles made in submissions presented by Member States before international courts, tribunals and other bodies since 2001, and further request the Secretary-General to submit such material during its seventy-first session.

The General Assembly would also acknowledge the possibility of requesting, at its seventy-fourth session, the Secretary-General to provide the General Assembly with information on all procedural options regarding possible action on the basis of the articles, without prejudice to the question of whether such possible action is appropriate. It would 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 seventy-fourth session. The General Assembly would acknowledge the constructive dialogue in the context of the working group of the Sixth Committee during the seventy-first session of the General Assembly, and encourage all Member States to continue the substantive dialogue on an informal basis during the period prior to the seventy-fourth session of the Assembly. Finally, the General Assembly would decide to include in the provisional agenda of its seventy-fourth 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

The agenda item will be considered next at the seventy-fourth session (2019).

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