Deputy Legal Adviser
United States Mission to the United Nations
New York City
October 14, 2019
Thank you, Chair.
The draft articles on the responsibility of States for internationally wrongful acts, with commentaries, were adopted in 2001. Since that time, they have been relied upon by States and other litigants, as well as by international courts and tribunals, as providing guidance on the customary international law of state responsibility. Indeed, the United States has itself cited to certain of the draft articles and the ILC commentaries in its pleadings before international courts and tribunals.
At the 71st session of the Sixth Committee (2016), the draft articles were discussed at length, with some countries favoring a diplomatic conference to convert the draft articles into a convention, and others preferring to leave the articles in draft form. The U.S. position in 2016 was that the articles are most valuable in their current draft form, and our position has not changed.
The United States remains particularly concerned that the negotiation of a convention poses risks to important existing rules. In opening the draft articles to the debate necessary to arrive at a convention, well-accepted rules that are documented in the draft articles and their commentaries could be re-drafted, questioned, or undermined. On the other hand, those draft articles that represent the progressive development of international law, and which are not necessarily accepted by all States, may not be ready for negotiation. It would be better to allow the topics covered by those rules an opportunity to be subject to State practice, to ascertain whether the draft articles may gain broader acceptance and crystalize into customary international law, or may be disregarded. New rules that are utilized by States in practice are much more likely to gain widespread acceptance, as opposed to a convention negotiated under the pressure of a condensed timeframe.
We also believe that a negotiated convention ultimately would not enjoy widespread acceptance by States, in part because certain articles go beyond existing customary international law. This result would lead not to clarity regarding state responsibility, but to confusion over an area of law that includes both settled customary international law and areas of continuing progressive development. Consequently, the best option is to allow the articles to continue to guide States and other litigants as to the content of settled law, and to assist States in the progressive development of law.