Sixth Committee (Legal) — 77th session
Responsibility of States for internationally wrongful acts (Agenda item 73)
- Authority: resolution 74/180
Documentation
- A/77/74 — Report of the Secretary-General: Compilation of decisions of international courts, tribunals and other bodies
- A/77/198 — Report of the Secretary-General containing comments and information received from Governments
- A/C.6/77/WG.1/1 — Working paper on procedural precedents for action on products of the International Law Commission submitted by the delegations of Argentina, Colombia, Lebanon, the Federated States of Micronesia, Mexico and Portugal for the consideration of the Working Group
- A/C.6/77/L.17 — Draft resolution [see also statement of financial implications]
Summary of work
Background (source: A/77/100)
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, 71/133 and 74/180).
At its seventy-fourth session, the Assembly allocated the item to the Sixth Committee, where statements in the debate were made by 24 delegations (A/C.6/74/SR.13 and 15). The Assembly acknowledged the possibility of requesting, at its seventy-seventh 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 was 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 that regard, and also requested the Secretary-General to submit that material well in advance of its seventy-seventh session. The Assembly also requested 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 requested the Secretary-General to submit such material during its seventy-seventh session. The Assembly also decided 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 (resolution 74/180).
Consideration at the seventy-seventh session
The Sixth Committee considered the issue at its 13th, 14th, 35th and 36th meetings, on 13 October and on 10 and 18 November 2022 (see A/C.6/77/SR.13, 14, 35 and 36).
Pursuant to resolution 74/180, the Committee decided, at its 1st meeting, on 3 October 2022, 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, with a view to taking a decision, 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. Vinícius Cançado Trindade (Brazil), held three meetings, on 18, 31 October and 7 November 2022, respectively. At the 35th meeting of the Committee, on 10 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 Nordic Countries (Finland, Denmark, Iceland, Norway, Sweden)), Canada (on behalf of Canada, Australia and New Zealand (CANZ), Singapore, El Salvador, Iran (Islamic Republic of), Colombia, Italy, United States of America, Mexico, United Kingdom of Great Britain and Northern Ireland, China, Israel, Slovakia, Romania, Czech Republic, Portugal, Cameroon, Egypt, Chile, Sierra Leone, South Africa, Armenia, the Russian Federation, Cuba, Greece, Cyprus, the Netherlands, Algeria, Malaysia, Argentina, Poland, the Republic of Korea and the observer delegation of the State of Palestine.
In their general comments, delegations thanked the Secretary-General for his report on comments and information received from Governments (A/77/198) and the updated compilation of decisions by international courts and tribunals (A/77/74). 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. A number of delegations recalled that more than 20 years had passed since the completion of the articles. The contribution of the final special rapporteur on the topic, Judge James Crawford, who had passed away since the Committee last considered the item, was also recalled.
With regards to future steps to be taken on this issue, several delegations supported the negotiation of a convention on the basis of the articles while other delegations preferred to maintaining the articles in their current form. The possibility for the General Assembly to adopt the articles in the form of a declaration or resolution was also recalled. 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. Several 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. Other delegations proposed to reduce the frequency of consideration.
The delegations that supported the negotiation of a convention based on the articles generally reiterated that the negotiation of a convention would lead to increased legal certainty and the 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 could signal disinterest by Member States and could contribute to the fragmentation of the jurisprudence on the topic. The possibility of incorporating provisions on diplomatic protection, which had been the subject of a separate International Law Commission draft, was also raised.
A number of delegations expressed the view that the reiteration of the various positions of Member States on a potential convention was counterproductive. Several delegations expressed a desire to focus on the procedural modalities that would allow discussion of the articles without putting their value into question. Appreciation was expressed for a non-paper on relevant procedural precedents that had been circulated by a group of delegations. Support was voiced for the role of the Working Group as a venue for discussion, and it was proposed that it could be forum for discussion of those articles that did not yet enjoy consensus. However, doubts were also expressed on the continued need for the working group. The importance of reaching any decision about the future of the articles by consensus was underscored. Some delegations highlighted a need to reflect on ways to enable technical exchanges of views on the work product of the International Law Commission.
A number of delegations did not favour the negotiation of a convention at the time of the session, 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 instil. Several delegations considered that a convention was unnecessary. It was 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. Willingness to consider aspects of the topic outside the scope of the articles was expressed.
Archived videos and summaries of plenary meetings
13th meeting (13 October 2022, 10:00am – 1:00pm) | Summary
14th meeting (13 October 2022, 3:00pm – 6:00pm) | Summary
35th meeting (10 November 2022, 10:00am – 1:00pm) | Summary
36th meeting (18 November 2022, 10:00am – 1:00pm) | Summary
Action taken by the Sixth Committee
At the 36th meeting, on 18 November 2022, 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.6/77/L.17). At the same meeting, the Committee adopted draft resolution A/C.6/77/L.17 without a vote.
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, and to submit such material during its eightieth session.
The General Assembly would also would request the Secretary-General to provide it, at its eightieth session, with a report on all procedural options based on precedents regarding actions taken on other products of the International Law Commission, without prejudice to the question of whether such possible action is appropriate, and take note of the discussion on procedural precedents for such action, including all views, comments and concerns expressed thereon.. 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 eightieth session.
The General Assembly would acknowledge the constructive dialogue in the context of the working group of the Sixth Committee during the seventy-seventh 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 eightieth session of the Assembly, including on the basis of information provided in advance by the Secretary-General at the seventy-ninth session of the General Assembly, regarding the new report I have just mentioned. Finally, the General Assembly would decide to include in the provisional agenda of its eightieth 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 eightieth session (2025).
