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Sixty-second session

Responsibility of States for internationally wrongful acts (agenda item 78)

Summary of work

Background (source: A/62/100)

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 and commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action; and 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; 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 to submit that material well in advance of its sixty-second session (resolution 59/35).

Consideration at the sixty-second session

The Sixth Committee considered item 78 at its 12th, 13th, 27th and 28th meetings, on 23 October, and 12 and 19 November 2007.

Statements were made by the representatives of Australia (also on behalf of Canada and New Zealand), Finland (on behalf of the Nordic countries), the Libyan Arab Jamahiriya, India, Portugal, Cuba, Guatemala, Mexico, China, Germany, Austria, Poland, Chile, Malaysia, the Republic of Korea, Greece, Pakistan, Spain, the United States, France, Cyprus, the United Kingdom, Italy, Japan, the Russian Federation, Ethiopia, Nigeria, Venezuela (Bolivarian Republic of) and Sierra Leone.

It was noted, with reference to the compilation prepared by the Secretary-General (A/62/62, Corr.1 and Add.1), that the articles on State responsibility had become an authoritative statement of the rules on State responsibility and were being extensively referred to in practice.

Some delegations praised the ILC for its codification of the rules on State responsibility and its strengthening of the concepts of jus cogens and the international community as a whole.  Support was expressed for the reference in the articles to a special regime of responsibility for serious breaches of obligations under peremptory norms of general international law, and commented on the relevant rules.  Some delegations made critical observations on the articles referring to countermeasures and the invocation of responsibility by States other than the injured State, on the lack of any dispute settlement mechanism, and on the primary role attributed in the articles to state of necessity as a measure precluding wrongfulness.

Regarding future action on the articles, some delegations considered that negotiations on a convention would reopen controversial points and jeopardize the delicate balance built in the articles.  They also pointed out that the ensuing convention might be ratified only by a small number of States.  Of these delegations, some supported the adoption of a resolution endorsing the articles, while others proposed that a decision on future action be postponed for a few years to ensure further consolidation of the articles.  It was also suggested that the General Assembly could commend once again the articles to the attention of Governments and express its satisfaction that the articles were being extensively referred to in practice.  Another proposal was that the General Assembly adopt a declaration with the articles and consider the adoption of a convention at a later stage.

Some other delegations favoured an immediate decision on the future of the articles, emphasizing that the adoption of a convention would be the most logical and preferable outcome of the work of the ILC and would ensure legal certainty in the field.  They proposed the convening without delay of an international conference to this end.  Some other delegations, while also supporting the adoption of a convention, proposed the creation of an ad hoc committee or a working group in the context of the General Assembly with a mandate to discuss the issue.

The proposal was also made that the General Assembly request once again that the Secretary-General invite Governments to submit their comments on future action on the articles, and that he submit, in due course, an updated version of the compilation referred to above.

Some other delegations warned against any further action on the articles and opposed their adoption through a convention.

Action taken by the Sixth Committee

At the 27th meeting, on 12 November 2007, the representative of Poland, on behalf of the Bureau, introduced a draft resolution entitled “Responsibility of States for internationally wrongful acts” (A/C.6/62/L.20).  At its 28th meeting, on 19 November 2007, the Committee adopted the draft resolution without a vote.

This agenda item was subsequently considered at the sixty-fifth session (2010)