CYIL 2012

THE ACTIVITIES OF THE SIXTH COMMITTEE DURING THE 66 TH SESSION … of the Articles on the Responsibility of States for Internationally Wrongful Acts, annexed them to its resolution, commended them “to the attention of Governments without prejudice to the question of their future adoption or other appropriate action” and decided to include them in the agenda of its 59 th session. 11 Since then, the Sixth Committee has dealt with this issue three times every three years, i.e., in 2004, 12 2007 13 and 2010, 14 without reaching consensus on the final form of these Articles. Pursuant to the latest resolution, the Sixth Committee will wrestle with this question again at the 68 th session of the GA in 2013. 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 the same. Therefore, it is not very likely that this issue will be resolved next year. If the objective of these Articles was to minimize the legal uncertainty in the area of responsibility of States, then this outcome may not be seen as a failure. Most of the rules contained in these Articles are already considered to be a codification of customary international law by some States, 15 the ICJ, regional international courts, international criminal tribunals, arbitration tribunals 16 and by the doctrine of international law. 17 As such, I would argue that this situation works better for the international community than a treaty ratified just by a handful of States, like the above-stated Convention on Jurisdictional Immunities of States and Their Property. Finally, should the Sixth Committee decide to elaborate an international convention on the basis of any draft articles of the ILC at a conference convened for this purpose, the treaty adopted at this conference might be at the end very different from these articles. As any human product, the draft articles may not be perfect and could be improved by the proposals of the States. At the same time, they are adopted by the ILC as a package where the provisions are inter-connected and have its logic. The various proposals of States could, however, diminish the overall quality of the text. This situation happens frequently during the legislative process in the Czech Republic, where every member of the Chamber of Deputies has the right to submit an amendment to any bill prepared by the Government. As a result of this, even the proposals made by the Deputies with good intentions can sometimes cripple a well prepared legislative proposal. This does not mean that the States should approve anything that comes out of the ILC. The ideal scenario is, when the States submit

11 Resolution of the GA No. 56/83 of December 12, 2001, UN Doc. A/RES/56/83. 12 Resolution of the GA No. 59/35 of December 2, 2004, UN Doc. A/RES/59/35. 13 Resolution of the GA No. 62/61 of December 6, 2007, UN Doc. A/RES/62/61. 14 Resolution of the GA No. 65/12 of December 6, 2010, UN Doc. A/RES/65/19.

15 Reports of the SG (hereinafter the “SG”), Responsibility of States for internationally wrongful acts, Comments and information received from Governments, UN Doc. A/65/96, UN Doc. A/65/96/ Add.1 and UN Doc. A/62/63. 16 Reports of the SG, Responsibility of States for internationally wrongful acts, Compilation of decisions of international courts, tribunals and other bodies, UN Doc. A/65/76 and UN Doc. A/62/62. 17 Č. Čepelka, P. Šturma, Mezinárodní právo veřejné , 2008, p. 572; J. Malenovský, Mezinárodní právo veřejné, jeho obecná část a poměr k jiným právním systémům, zvláště k právu českému , 2008, p. 316.

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