CYIL vol. 14 (2023)

CYIL 14 (2023) ACTIVITIES OF THE SIXTH COMMITTEE OF THE UN GENERAL ASSEMBLY … which will identify common ground and differences, these should provide a good basis for further negotiations. The ongoing process creates great anticipation for the 79 th session of the General Assembly, where the CAH will be considered again. Hopefully, the Sixth Committee will be able to build up on its constructive discussions during the resumed sessions and will recommend concrete steps to the General Assembly for the elaboration of a convention. Responsibility of States for internationally wrongful acts The agenda item entitled “Responsibility of States for internationally wrongful acts” was one of those that took the longest to consider and agree on an outcome. No specific cases of internationally wrongful acts are dealt with under this agenda item (although some States referred to Russia’s aggression against Ukraine during the debate). The discussion focuses on possible future action in relation to the Articles on Responsibility of States for Internationally Wrongful Acts 18 (hereinafter “ARSIWA”) elaborated by the ILC in 2001. Already in 2001, the ILC recommended that the General Assembly take note of the ARSIWA and that it consider, at a later stage, the possibility of convening an international conference of plenipotentiaries to examine the ARSIWA with a view to concluding a convention on the topic. The Assembly took note of the ARSIWA in its resolution A/ RES/56/83 and decided to revert to the topic at its 59th session. Since then, the ARSIWA have been considered triennially – in 2004, 2007, 2010, 2013, 2016 and 2019. During the 74 th session of the General Assembly in 2019, some States began to push for progress on ARSIWA in order to move closer to negotiating a convention on responsibility of States. The main proponents of this approach in 2019 were Portugal and Mexico. In 2022, the issue of any future action on the ARSIWA remained controversial and consensus beyond a technical rollover of the previous session’s resolution was difficult to achieve. During the debate, 33 delegations made statements (compared to 24 in 2019). They all agreed that the ARSIWA were one of the most significant achievements of the ILC, with many delegations highlighting that the ARSIWA (or at least large majority of the articles contained therein) had acquired the status of customary international law. Extensive references to ARSIWA by national and international courts were also noted. Most of the debate was devoted to the question of any future action on the ARSIWA. While a “skeptical” group of States feared a risk of jeopardizing the carefully struck balance within the ARSIWA, others stressed the need to bring more legal certainty to the area of responsibility of States by negotiating a convention on the subject. The Czech Republic was one of the States preferring to maintain the current form of the ARSIWA, together with, for example, Australia, Canada, Denmark, Finland, the Netherlands, Norway, Slovakia, the United Kingdom, the United States and others. The group of States in favor of progress towards codification drew attention to the risks of fragmentation of case-law and thus jeopardizing the integrity of the ARSIWA, if we did not move towards its codification. They sought to increase the frequency of consideration of the ARSIWA in the Sixth Committee. An analogy was sometimes drawn with the topic of crimes against humanity, where some of the opponents of the codification of ARSIWA advocated progress towards codification of the CAH. The position of these States (including the Czech Republic) was described as 18 International Law Commission. Responsibility of States for Internationally Wrongful Acts . 2001. Available here: https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.

459