CYIL Vol. 4, 2013

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER In 2010 the pertinent resolution of the General Assembly (A/RES/65/19 of 6 Dec. 2010) again acknowledged the importance of the articles on responsibility and commended them once more to the attention of Governments. After the renewed request of the demands formerly made already in 2004 and 2007, it decided during its sixty-eighth session (2013) to further examine the question of a convention on responsibility of States or other appropriate action on the basis of the articles. The deadline for the submission of information and the receipt of comments from Governments is 1 Feb. 2013 (LA/COD/26). Under these circumstances it would be interesting to follow the opinions presented in the Sixth Committee (Legal) as the primary forum for the consideration of legal questions in the UN General Assembly – mainly as far as concerns choosing the right form for the ILC draft articles. 1 2. Final form of the draft articles on State responsibility Several States support the adoption of the articles as an international convention. It is noted that a convention would contribute to respect for international law and stability in international relations. Reference is also made to the continuous and positive impact of treaties on the development of international customary law. The view is expressed that the articles were a well-conceived and balanced set of secondary rules. 2 Although the relevant resolutions of the UN General Assembly mostly, in the first place, call for the conclusion of an appropriate convention, 3 several other States do not favour negotiating a convention at present. 4 The concern is raised that the process of negotiating a convention could risk undermining the whole work, in particular the delicate balance built into the articles. It is also pointed out that the articles in their entirety do not reflect a settled view of customary international law, and that there remain elements that are disputed and unclear. The view is therefore expressed that the articles were in the strongest position as an annex to a resolution of the UN General Assembly. 1 Cf. Petr Válek, The Activities of the Sixth Committee During the 66th Session of the UN General Assembly: Business as Usual? In: Czech Yearbook of Public & Private International Law. Vol. 3. (2012), p. 293; p. 295 “The Sixth Committee’s Dilemma: Choosing the Right Form for the ILC Draft Articles”. 2 e.g. Comments and observations received from Governments – U.N.Doc. A/CN.4/515 (2001), p. 20: “Bearing in mind the importance of the topic, (…) Slovakia is of the view that a legally binding instrument, i.e. a convention, would be the most appropriate in this regard. (…) The instrument of State responsibility should represent, side by side with the Vienna Convention on the Law of Treaties, one of the pillars of international law.” 3 e.g. the resolution A/RES/56/83 (2001) requires: “(…) to examine the draft articles with a view to concluding a convention on the topic”. The resolution A/62/61 (2007) demands: “(…) further examine (…) the question of a convention on responsibility of States (…) or other appropriate action on the basis of the articles.” Finally, the resolution A/RES/65/19 (2010) asks: “(….) to further examine (…) the question of a convention on responsibility of States (…) or other appropriate action on the basis of the articles.” 4 See Petr Válek, op. cit. supra, p. 297: “The number of States preferring the conclusion of a new treaty on this matter and those having some doubts regarding the need for such a treaty is about same”.