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Sixty-fifth session

Responsibility of States for internationally wrongful acts
(Agenda item 75)

Summary of work

Background (source: A/65/100)

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).

Consideration at the sixty-fifth session

The Sixth Committee considered the item at its 15th, 25th and 27th meetings, on 19 and 29 October and 5 November 2010, respectively.

Pursuant to resolution 62/61, the Committee decided, at its 1st meeting, on 4 October 2010, 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. Reta Alemu Nega (Ethiopia), held one meeting, on 19 October 2010. At the 25th meeting of the Committee, on 29 October, 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: Chile (on behalf of the RIO Group), Finland (on behalf of the Nordic Countries), Malaysia, Germany, Portugal, the United Kingdom, Libyan Arab Jamahiriya, the Russian Federation, Viet Nam, the United States of America, Venezuela (Bolivarian Republic of), Cuba, Iran (Islamic Republic of), Greece, Canada (also on behalf of Australia and New Zealand) and India.

Delegations thanked the Secretary-General for his report (A/65/96 and Add.1) as well as for the updated compilation of decisions of international courts, tribunals and other bodies (A/65/76) referring to the articles on Responsibility of States for internationally wrongful acts. It was noted 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.

Regarding future action on the articles, several delegations supported the eventual adoption of the articles as an international convention. It was noted that a convention would contribute to the respect for international law and to peace and stability in international relations. Reference was made to the continuous and positive impact of treaties on the development of international customary law. The view was also expressed that the articles were a well-conceived and balanced set of secondary rules, which had already begun to demonstrate a consolidating factor in the international legal order, State practice, the case law of international courts, tribunals and other bodies as well as national courts’ decisions being a clear indication of their recognition by the international community. It was also noted that the articles were an indivisible whole and should not be reopened for negotiation. Several delegations further called for the convening of a diplomatic conference to adopt the articles as an international convention.

Several other delegations did not favour negotiating a convention at present. The concern was raised that the process of negotiating a convention could risk undermining the work of the International Law Commission (in particular the delicate balance built into the articles) if the resulting convention deviated from important existing rules or did not enjoy widespread acceptance. It was pointed out that the articles in their entirety did not reflect a settled view of customary international law and that there remained elements that were disputed and unclear. It was proposed that the articles should be allowed to guide the continuing development of the customary law of State responsibility. Several delegations expressed the view that the articles were in the strongest position as an annex to a resolution, since the articles reflected a widely shared consensus.

Action taken by the Sixth Committee

At the 25th meeting, on 29 October, the representative of Ethiopia, on behalf of the Bureau, introduced the text of a draft resolution entitled “Responsibility of States for internationally wrongful acts” (A/C.6/65/L.8). At its 27th meeting, on 5 November, the Committee adopted draft resolution A/C.6/65/L.8 without a vote.

Under the draft resolution, the General Assembly would request the Secretary-General to invite Governments to submit further written comments on any future action regarding the articles. 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 sixty-eighth 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.

This agenda item was subsequently considered at the sixty-eighth session (2013).