At the time of adopting the Articles on the Responsibility of States for Internationally Wrongful Acts, in 2001, the International Law Commission recommended, inter alia, that the General Assembly of the United Nations consider the possibility of negotiating a convention on the basis of the Articles. On four occasions, since 2001, the member states in the Sixth Committee of the General Assembly have been divided on whether to do so. Nonetheless, the most recent such debate, held in 2013, revealed a strong undercurrent of support among the states for convening a diplomatic conference to negotiate a treaty. However, this trend is not reflected in much of what has been written and argued in the public space, which has been almost entirely in opposition to a convention. The main argument for such opposition has been that a treaty negotiation would set back the development of the law either through the adoption of a flawed text or through failure to reach agreement. The present article seeks to scrutinise the viability of such a prognosis, by both responding to the arguments made against a treaty negotiation and by offering some reasons for supporting the negotiation of a convention on the responsibility of states for internationally wrongful acts.
G.A. res. 59/35 of 2 December2004, 62/61 of 6 December 2007, 65/19 of 6 December 2010 and 68/104 of 16 December 2013.
Rosenne, supra note 11, p. 363.
Since2007, the Secretariat of the United Nations has, upon the request of the General Assembly, produced a compilation of extracts from the judgments and decisions of courts, tribunals and other bodies, in which the articles were cited. See A/62/62 and Corr.1 and Add.1, A/65/76 and A/68/72. See also Materials on the Responsibility of States for Internationally Wrongful Acts, United Nations Legislative Series, vol. 25, ST/LEG/SER B/25 (2012).
For2001, see A/C.6/56/SR.11 to 16 and 18; 2004, A/C.6/59/SR.15 and 16; 2007, A/62/63 and Add.1, and A/C.6/62/SR.12 and 13; 2010, A/65/96 and Add.1, and A/C.6/65/SR.15; and 2013, A/C.6/68/69 and Add.1 and A/C.6/68/SR.15.
Convention on Cluster Munitions,2008, United Nations, Treaty Series, vol. 2688, No. I–47711.
Caron, supra note 29, at p. 867, referring to his earlier analysis of the Iran-United States Claims Tribunal (“I found that the Tribunal did not assess the articles but, instead, tended to accept them as given”); see D. Caron, ‘The Basis of Responsibility: Attribution and Other Trans-substantive Rules’, in R Lillich, D. Barstow Magraw and D. Bederman (eds.), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Transnational Publishers, Irvington-on-Hudson, 1998) p. 109.