Sixth Committee (Legal) — 74th session
Responsibility of States for internationally wrongful acts (Agenda item 75)
- Authority: resolution 71/133
Documentation
- A/74/83 — Report of the Secretary-General: Compilation of decisions of international courts, tribunals and other bodies
- A/74/156 — Report of the Secretary-General containing comments and information received from Governments
- A/C.6/74/L.16 — Draft resolution
Summary of work
Background (source: A/74/100)
At its fifty-sixth session, 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 with a view to concluding a convention on the topic. At the same session, the 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).
The Assembly has had the item on its agenda triennially since its fifty-ninth session (resolutions 59/35, 62/61, 65/19, 68/104 and 71/133).
At its seventy-first session, the Assembly allocated the item to the Sixth Committee, where statements in the debate were made by 20 delegations (A/C.6/71/SR.9, 31 and 33). The Assembly acknowledged the possibility of requesting, at its seventy-fourth session, the Secretary-General to provide the 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. The Assembly requested 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 also requested the Secretary-General to submit that material well in advance of its seventy-fourth session. The Assembly also decided 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, 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 71/133).
Consideration at the seventy-fourth session
The Sixth Committee considered the issue at its 13th, 15th, 34th and 35th meetings, on 15 and 16 October and on 11 and 20 November 2019 (see A/C.6/74/SR.13, 15, 34 and 35).
Pursuant to resolution 71/133, the Committee decided, at its 1st meeting, on 7 October 2019, 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 Ms. Maitê de Sousa Schmitz (Brazil), held three meetings, on 15, 22 October and 7 November 2019, respectively. At the 34th meeting of the Committee, on 11 November, the Chair of the Working Group presented an oral report on the work of the Working Group.
In plenary, statements were made by the representatives of: Finland (on behalf of the Nordic countries), Australia (also on behalf of Canada and New-Zealand (CANZ)), Sierra Leone, Slovakia, Singapore, China (Peoples’ Republic of) [in English], the United Kingdom, the Sudan, the United States of America, Mexico, Cuba [in English], El Salvador, the Russian Federation, Greece, Malaysia, Honduras, Cameroon, Spain, Cyprus, Israel, Iran (Islamic Republic of), Portugal, and Micronesia (Federated States of).
In their general comments, delegations took note, with appreciation, of the report by the Secretary-General on comments and information received from Governments (A/74/156), and the updated compilation of decisions by international courts and tribunals (A/74/83). Delegations reiterated their appreciation for the work done by the International Law Commission on the codification and progressive development of this important topic, citing the articles as one of the most significant achievements of the International Law Commission.
With regards to future steps to be taken on this issue 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; (3) maintaining the articles in their current form with no further action. Delegations looked forward to constructive discussions within the working group and to remain engaged on possible options for the progression of the articles. Several delegations maintained that any of the options should only be pursued in case of consensus given the significance of the area of law. A number of delegations proposed to increase the frequency of consideration of the topic to annually, or biennially in order to maintain the progress made in those discussions.
Many delegations supported the negotiation of a convention based on the articles. It was reiterated that the negotiation of a convention would lead to increased legal certainty and crystallization of the norms on State responsibility, while addressing any remaining outstanding substantive issues. Delegations reiterated that the articles were balanced and methodical and would provide a good basis for the elaboration of a convention. Some delegations addressed the need to define the scope of a diplomatic conference clearly. This was thought to be able to eliminate the risk of diluting those substantive articles that have been accepted through State practice, and to retain the careful balance struck within the articles. Several delegations expressed the view that the incorporation of a dispute settlement mechanism within a convention would increase certainty and preclude abuse of the articles. Some delegations highlighted that the failure by the Sixth Committee to act would signal disinterest by Member States and could contribute to the fragmentation of the jurisprudence on the topic.
Some delegations expressed their willingness for the articles to be endorsed by the General Assembly in a resolution, with the articles attached in an annex.
Some delegations did not favor the negotiation of a convention, citing the risk of disturbing the careful balance struck within the articles, and the potential questioning or undermining of the articles during negotiations. Those delegations expressed their concern that potential negotiations could galvanize divergence among States and thus jeopardize the coherence the articles have sought to instill. Some delegations further highlighted that the articles in their present form serve as an influential and widespread tool for governments and international courts and tribunals. Some delegations added that the acceptance of the articles would be wider when elaborated through State practice, rather than a convention.
Several delegations recalled the possibility provided in resolution 71/133 of the General Assembly requesting the Secretary-General to provide information on all procedural options regarding possible action on the basis of the articles, without prejudice to the question of whether such possible action would be appropriate. Several delegations proposed that the Secretary-General be requested to prepare such a report in order to lay out all the possible future actions.
Action taken by the Sixth Committee
At the 35th meeting, on 20 November 2019, 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.6/74/L.16). At the same meeting, the Committee adopted draft resolution A/C.6/74/L.16 without a vote.
The representative of Portugal, also on behalf of Argentina, Mexico and Sierra Leone, spoke in explanation of position after the adoption of the draft resolution.
Under the draft resolution, the General Assembly would inter alia acknowledge the importance and usefulness of the articles on responsibility of States for internationally wrongful acts and commend them to the attention of Governments. It would request the Secretary-General to invite Governments to submit further written comments on any future action regarding the articles. It would acknowledge that a growing number of decisions of international courts, tribunals and other bodies refer to the articles. It would further request the Secretary-General to update the 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-seventh session.
The General Assembly would also acknowledge the possibility of requesting, at its seventy-seventh 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 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 such material well in advance of its seventy-seventh session.
The General Assembly would acknowledge the constructive dialogue in the context of the working group of the Sixth Committee during the seventy-fourth 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-seventh session of the Assembly. Finally, the General Assembly would decide to include in the provisional agenda of its seventy-seventh session the item entitled “Responsibility of States for internationally wrongful acts” and 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.
Subsequent action taken by the General Assembly
This agenda item will be considered at the seventy-seventh session (2022).
