II. THE CONTEXT OF THE DEBATE IN THE SIXTH COMMITTEE

When the ARSIWA were first debated in the Sixth Committee at the 56th session held in 2001, a total of 52 statements were made on behalf of 68 Member States over an estimated 24 hours in ten sittings.Footnote ¹⁵ While it was evident that the majority of the text commanded general support, it was equally clear, as depicted in Table One, that there were provisions attracting opposition or doubt, of which the most prominent were countermeasures and serious breaches of peremptory norms.Footnote ¹⁶ The Sixth Committee accepted the proposal of the Commission not to adopt the ARSIWA but rather to take note of them and to annex them to its resolution while commending them to the Member States for their consideration on the question of future action.Footnote ¹⁷

Table One: Criticisms made of the Articles by United Nations Member States in Sixth Committee debates

A significant feature of the 2001 debate was the identity of the speakers, who generally comprised the principal legal advisers to the foreign ministries of the Member States. Their participation was due to the fact that the ARSIWA were presented as part of the annual report of the Commission, which is traditionally debated during ‘International Law Week’ at the United Nations.Footnote ¹⁸ The statements were detailed and addressed not only the question of future action but also the content of the ARSIWA. Whereas some thought there to be no prospect of adoption as a treaty, others considered such a treaty to be both desirable and achievable and a few delegations pressed for a working group or diplomatic conference to be convened.Footnote ¹⁹

At the 59th session in 2004, 28 statements were made on behalf of 34 Member States over approximately two hours in two sittings.Footnote ²⁰ The ARSIWA were debated as a separate agenda item, rather than as part of the annual report of the Commission; in general, the participants were diplomats or legal advisers from the Permanent Missions rather than the principal government legal advisers from the capitals. Far briefer than those delivered in 2001,Footnote ²¹ their statements were largely confined to the issue of future action.

While largely falling into ‘pro-conference’ and ‘anti-conference’ camps, certain delegations in the ‘pro-conference’ group (eg Greece) opposed any change to the text while others (eg Russia, Cuba, Belarus) favoured a diplomatic conference in order to seek such changes.Footnote ²² Amongst the ‘anti-conference’ camp were not only differing degrees of opposition but also divergent views on an eventual outcome (eg the position of Canada, Australia and New Zealand (CANZ) in favour of final adoption as a resolution).Footnote ²³ In reproducing the resolution of 2001, the Sixth Committee added a request that the Secretariat prepare a ‘compilation of decisions of international courts, tribunals and other bodies referring to the [A]rticles and to invite Governments to submit information on their practice in this regard’.Footnote ²⁴

At the 62nd session held in 2007, for the first time, the Sixth Committee had at its disposal not only the written comments of delegationsFootnote ²⁵ but also a compendium of decisions of international tribunals referring to the ARSIWA.Footnote ²⁶ Five written comments on future action and three returns on State practice were provided to the Secretariat.Footnote ²⁷ Twenty-nine statements were delivered on behalf of 35 Member States over approximately two and one-half hours in two sittings.Footnote ²⁸ Of these, 13 statements on behalf of 18 Member States referred to the reports of the Secretariat.Footnote ²⁹ In replicating the 2004 resolution, the Sixth Committee decided ‘to further examine, within the framework of a working group … the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the ARSIWA’.Footnote ³⁰ This was not a concession to the ‘pro-convention’ camp, for the language left open the purpose of the working group, which had in fact been suggested in 2004 by both proponents and opponents of a diplomatic conference as a forum for the regular and informal exchange of views.Footnote ³¹

At the 65th session held in 2010, 13 written comments were received on behalf of 17 Member States and no information on State practice was submitted.Footnote ³² Sixteen statements were delivered on behalf of 54 Member States in a single sitting of one and one-half hours.Footnote ³³ Of these, seven statements referred to the Secretariat report on international decisions.Footnote ³⁴ Since 2001, CANZ and the Nordic GroupFootnote ³⁵ had delivered joint statements and for the first time a joint statement was also made by the Rio Group comprising 23 Member States.Footnote ³⁶ The Sixth Committee made no significant change to the 2007 resolution.Footnote ³⁷

For the 68th session in 2013, the Secretariat received three written comments on future action and no information on State practice.Footnote ³⁸ Eighteen statements were made in a single session of two hours on behalf of 56 Member States, including a joint statement by the 32 members of the Community of Latin American and Caribbean States (‘CELAC’, the successor to the Rio Group).Footnote ³⁹ Of these, six statements referred to the Secretariat report on international decisions.Footnote ⁴⁰ In the Working Group,Footnote ⁴¹ four options were considered: 1) to defer again the question of future action; 2) to conclude consideration of the topic by the General Assembly; 3) to conclude consideration of the topic for the time being while leaving open the possibility of revisiting the matter; or 4) to convene a diplomatic conference.Footnote ⁴² The Chair of the Working Group reported:

The Sixth Committee made no significant change to the 2010 resolution.Footnote ⁴⁴

In advance of the 71st session held in 2016,Footnote ⁴⁵ the Secretariat received written comments on future action from eight Member States and information on State practice from two.Footnote ⁴⁶ Twenty statements were made on behalf of 111 Member States in a single session over approximately two hours.Footnote ⁴⁷ For the first time, this featured a joint statement by the 54 members of the African Group.Footnote ⁴⁸ Of these, three statements referred to the Secretariat compendium of decisions of international tribunals.Footnote ⁴⁹

The Working Group held three meetings in which the positions expressed in 2013 by the ‘pro-conference’ and ‘anti-conference’ groups were repeated.Footnote ⁵⁰ At the second meeting, the Chair presented a ‘non-paper’ (an informal discussion paper) entitled ‘Informal Working Notes from the Chair’ to guide the discussions in which he ‘had stressed that any decision on the fate of the ARSIWA, including on the process for reaching such a decision, should be taken by consensus and on the basis of sufficient information’.Footnote ⁵¹ The Chair proposed short-term, mid-term and long-term objectives on which the Working Group could focus to reach a definite decision without prejudice to the positions expressed; while certain delegations pressed for annual meetings on the topic to allow for more thorough discussion, others opposed this as tantamount to embarking upon a negotiating exercise.Footnote ⁵² He further suggested that Member States reflect on current State practice by ‘requesting a report of the Secretary-General listing, including in the form of a table, the references made to the ARSIWA in the almost 400 decisions of international tribunals and other bodies already compiled by the Secretary-General since 2001, as well as in the submissions of the parties to the relevant disputes’.Footnote ⁵³ Delegations also discussed ‘the utility of having information on procedural options for possible action on the basis of the ARSIWA, without prejudice to the question of whether any action was appropriate’.Footnote ⁵⁴

While the Sixth Committee largely preserved the 2013 resolution, it adopted the proposal of the Chair of the Working Group to request the Secretariat to provide the tabular report of references (thereafter known as the ‘technical report’Footnote ⁵⁵) as an addition to the compilation of decisions of international tribunals and report on the written comments of Member States.Footnote ⁵⁶ The Sixth Committee did not, however, decide to request the Secretariat to provide information on all procedural options regarding possible action on the basis of the ARSIWA, without prejudice to the question of whether such possible action is appropriate; rather, it ‘acknowledged the possibility’ of making such a request at the 74th session.Footnote ⁵⁷

The provision by Member States from 2007 to 2016 of written comments and information on their practice was extremely sparse and the level of engagement in terms of oral statements fell from 29 in 2007 to 23 in 2016.Footnote ⁵⁸ In terms of the number of participating Member States, the high-water mark was the year 2016 in which 113 participated in either written or oral form.Footnote ⁵⁹ In total, 111 Member States participated at least once between 2007 and 2016, whether in the form of a written comment or an oral statement delivered singly or jointly of whom 49 had not participated in either the 2001 or the 2004 session.Footnote ⁶⁰

In terms of the positions of participating States on future action depicted in Table Two,Footnote ⁶¹ those of 46 of the ‘usual suspects’ of regular participants may be outlined as follows:

1. 1) CELAC (32 States),Footnote ⁶² Greece, Portugal, Russia and Iran—convene a codification conference;

2. 2) China—open to adoption in a General Assembly resolution as part of a phased approach;

3. 3) CANZ (three States)—no codification conference, instead adopt in a General Assembly resolution (possibly as an annex);

4. 4) Nordic Group (five States), United States of America, India, United Kingdom, Israel and Malaysia—no diplomatic conference, preserve the current status.

Table Two: Positions most recently expressed by United Nations Member States on future action in Sixth Committee debates

The positions of ‘sporadic participants’ comprising 75 Member States may be sketched as follows:

1. 1) Cyprus (2007), France (2010), Brazil (2010), Lithuania (2010), Viet Nam (2010), Saudi Arabia (2013), Indonesia (2013), African Group (54 States, 2016)—convene a conference for adoption as a treaty;

2. 2) Austria (2016)—support a conference in principle but only if the integrity of the text be preserved;

3. 3) Spain (2007)—support a conference in principle but premature to embark upon it at this stage of evolution of State practice;

4. 4) Pakistan (2007)—support a conference in principle and set up an ad hoc committee to examine the options;

5. 5) Czech Republic (2016)—adopt as a Resolution, as insufficient consensus for adoption as a treaty;

6. 6) Belarus (2013)—adopt in a General Assembly resolution without prejudice to the question of adoption as a treaty;

7. 7) Qatar (2013)—establish a specialised committee to report on options and adopt the ARSIWA in a declaration;

8. 8) Republic of Korea (2007), Japan (2007), Poland (2007), Italy (2007), Germany (2010), the Netherlands (2010)—wait for State practice to evolve through application of the ARSIWA before revisiting the question of a diplomatic conference, preserve the status quo;

9. 9) Singapore (2016)—any decision must be taken by consensus;

10. 10) Kuwait (2007)—no position on future action expressed.

Although the positions of the great majority of Member States did not shift from 2001 to 2016, a few did. Whereas Sierra Leone and Nigeria had opposed a conference in 2007,Footnote ⁶³ they joined the statement of the African Group supporting such a conference in 2016.Footnote ⁶⁴ Austria signalled its support for a treaty in 2007 and 2016 ‘only if there were a prospect of it really being ratified and accepted’ and ‘if there are sufficient assurances that the current structure and balance of the draft articles will be maintained and a renewed discussion of their substantial provisions avoided’.Footnote ⁶⁵ France in 2007 called for an ad hoc committee to examine options for the adoption of some of the ARSIWA as a treaty, then adopted a ‘pro-conference’ position in 2010.Footnote ⁶⁶

This history of the agenda item can be divided into two phases. The 2001 and 2004 sessions might be described as the reception of the ARSIWA as a newly adopted text that was starting to be used in practice. The ossification of the debate began from the 2007 session when the Sixth Committee had at its disposal regular reports on practice from the Secretariat of which it made scant use. In this second period, positions have largely entrenched with procedural skirmishing revolving around a binary issue of whether to convene a codification conference. To a considerable degree, these procedural questions have effectively become a substitute for action due to the inflexible nature of the impasse on the main issue.

III. THE 2019 DEBATE

In advance of the 79th session held in 2019, the Secretariat received from Member States six written comments but no information on their practice.Footnote ⁶⁷ Twenty-three statements were delivered on behalf of 61 Member States in the oral debate held over two hours in two sittings.Footnote ⁶⁸ The Working Group held three meetings of approximately one hour each.Footnote ⁶⁹ Participation thus remained comparable to previous levels, with Micronesia and the Sudan making their debut while Slovakia intervened for the first time since the 2001 session. As in previous sessions, a few Member States, which have yet to make a formal statement, elected to speak only in the closed meetings of the Working Group in which comments are not individually attributed.

As was the case in 2016, one issue on the draft resolution was the frequency of consideration of the agenda item: certain Member States in the ‘pro-conference’ camp called for annual debate while others in the ‘anti-conference’ camp pressed for a quinquennial interval.Footnote ⁷⁰ Another recurrent issue was the resistance of some in the ‘anti-conference’ group to a demand of others in the ‘pro-conference’ group for a provision to investigate procedural options on future action.Footnote ⁷¹ Debate also focused on the utility of the Working Group as well as the reports of the Secretariat, particularly the tabular format of the technical report.Footnote ⁷² Ultimately, the Sixth Committee made no change to the 2016 resolution.Footnote ⁷³

Even as scant discussion took place on the application of the ARSIWA in practice, the positions of the usual suspects did not change on future action. Whether a Member State was pro-conference or anti-conference on the question of future action did not necessarily correlate to its position on substance. Some Member States supported a conference and called for changes to the text; conversely, others opposed a conference and wished to preserve the text intact. Certain Member States desired a conference and desired to adopt the text intact while others opposed a conference and sought changes to the text. One change in position on future action was that of Slovakia: it had made no substantive objection in its detailed remarks presented at the 2001 session and had at that time supported a convention in principleFootnote ⁷⁴ but in 2019 it opposed the idea of a convention while voicing no substantive criticism of the text.Footnote ⁷⁵

As depicted in Table One, 20 Member States have criticised provisions of the ARSIWA between the 2004 and 2019 sessions.Footnote ⁷⁶ Whereas the most contentious issues at the 2001 session were countermeasures, serious breaches of peremptory norms and (to a lesser extent) communal standing, relatively few delegations have consistently voiced concerns about them in subsequent sessions. In 2019, Singapore,Footnote ⁷⁷ ChinaFootnote ⁷⁸ and the United States of AmericaFootnote ⁷⁹ reaffirmed objections expressed in 2001 without commenting upon the intervening practice. Although the United Kingdom (unlike in the 2013Footnote ⁸⁰ and 2016Footnote ⁸¹ sessions) did not explicitly reiterate its substantive objections made in the 2001 session to the provisions on necessity, aid or assistance in the commission of an internationally wrongful act and serious breaches of peremptory norms, its statement implicitly maintained this position.Footnote ⁸² Whilst Israel maintained its long-standing position on future action, it did not refer to its substantive criticisms expressed in 2001.Footnote ⁸³

In a number of other cases, however, it is difficult to discern whether objections on substance that were raised in the 2001 or 2004 sessions still hold today. Of the 17 Member States that criticised the provisions on peremptory norms or countermeasures in 2001 or 2004, for example, the positions of eight are obscure. Ireland, Jordan and Bahrain have made no statement at subsequent sessions while Brazil, Poland and the Republic of Korea have participated infrequently with comments confined to the question of future action. While Japan again expressed caution on peremptory norms and countermeasures in its last intervention in 2007,Footnote ⁸⁴ this is sufficiently dated as to potentially no longer reflect its current position. Whereas France shifted to a ‘pro-conference’ stance on future action in 2010, its comment arguably implies that it would raise its prior concerns at such a conference, notably on serious breaches of peremptory norms and communal standing.Footnote ⁸⁵ Although Mexico and Chile have been regular participants and staunch supporters of a conference, their subsequent statements have focused entirely upon questions of procedure and future action;Footnote ⁸⁶ consequently, it is possible that they maintain the concerns that they voiced about the peremptory norms provisions in 2001.

Changes on substance can be detected, however, in the positions of five Member States. In 2007, Russia had criticised Articles 25(1)(a) on necessity and 41 on consequences of a serious breach of a peremptory norm;Footnote ⁸⁷ however, these points were omitted from its 2019 statement in which it instead criticised Article 8 on conduct directed or controlled by a State for the first time.Footnote ⁸⁸ Whereas Iran had voiced concerns in 2001 about the regime on countermeasures,Footnote ⁸⁹ these were absent from its statements in the 2016 and 2019 sessions in which it expressed doubt on communal standing.Footnote ⁹⁰ In these cases, it appears that the new objections have augmented, not replaced, the earlier ones.

In 2004, Cuba had supported the redrafting of Article 41 on serious breaches of peremptory norms and had expressed doubts about countermeasures,Footnote ⁹¹ yet these concerns were omitted from its statements in each session from 2007 to 2019 even as it adopted a stance ‘in favour of elaborating a convention on the basis of the ARSIWA which did not upset the delicate balance of the current text’.Footnote ⁹² Whilst Greece had objected to the regime on countermeasures from the 2001 to the 2007 sessions,Footnote ⁹³ it called for the adoption of the ARSIWA as a convention ‘without any changes to its substantive provisions’ from the 2010 session onwards.Footnote ⁹⁴ Cyprus criticised the countermeasures provisions from 2001 to 2007,Footnote ⁹⁵ yet omitted this from its 2019 statement in which it called for the ARSIWA to ‘be formally codified in a multilateral treaty as quickly as possible, notwithstanding their customary character and universally binding nature’.Footnote ⁹⁶ In these cases, it seems that objections have been tacitly dropped.

IV. REFLECTIONS ON THE DEBATES

From 2007 to 2019, the agenda item has ossified in the Sixth Committee. Statements in the formal debate (averaging two hours as opposed to the twenty-four hours spent in 2001) varied between 16 and 29 while positions on future action largely became entrenched. Whereas the rationale of the compromise recommendation of the Commission in 2001 was for Member States to become accustomed to the ARSIWA by observing their use in international arbitration and adjudication, the reports of the Secretariat have been infrequently cited and then only in generic terms. Statements focused predominately on the question of future action with scarce comment made upon the application of the ARSIWA—particularly the application of those provisions that were controversial when they were first received as an integral text in the 2001 and 2004 sessions.

Although the number of proponents of a codification conference has increased between 2007 and 2019 while that of the opponents has remained constant, the ‘head-count’ on future action is complicated by doubt concerning the ongoing validity of positions last expressed in the 2007 and 2010 sessions and based upon the conditions of those times. As depicted in Table Two, 92 Member States have express unqualified support for convening a codification conference between 2013 and 2019 while 14 Member States have signalled unqualified opposition in the same period. In the 2007 and 2010 sessions, six other Member States supported a conference in principle with six indicating opposition due to ‘insufficient State practice’; it is consequently difficult to determine whether their positions still hold in light of intervening developments. Between 2007 and 2019, seven Member States supported the intermediate decision of adopting the ARSIWA in a resolution—albeit with varying conditions.

Only five Member States (Russia, Iran, Cuba, Greece and Cyprus) have revised their positions on matters of substance in the intervening 18 years of practice; from their public statements, however, there is no indication whether their positions have changed in response to or independently of that practice. Another five (Singapore, China, United Kingdom, United States of America and possibly Israel) maintained their objections expressed in the 2001 or 2004 sessions without reference to the intervening practice. For the remaining Member States who commented in the 2001 and 2004 debates, it is not possible to glean from the record whether their positions have changed. Although a majority of the membership ‘participated’ in the 2016 session due to the joint statement of the African Group, the fact that the issue of future action predominates means that the great majority have yet to make substantive comment on the ARSIWA.

This makes it impossible to evaluate whether the majority of the ARSIWA are accepted, while countermeasures, serious breaches of peremptory normsFootnote ⁹⁷ and (possibly) communal standing remain contentious. Although the Permanent Members of the Security Council are formally equal to the other Member States in the Sixth Committee, it is nonetheless politically significant that each of the Permanent Members appears to maintain objections to certain provisions of the ARSIWA.

The intention of the Commission in 2001 that practice would inform an evolving debate in the Sixth Committee has not taken place in the main. Rather, the triennial debate has focused almost exclusively upon the question of future action; due to the stalemate between the groups for and against a codification conference, that debate has largely featured procedural skirmishing. As most of the issues are viewed through the lens of movement towards or away from a conference, opponents tend to resist any initiative that might develop the agenda item while proponents tend to propose initiatives leading only towards a conference. Although there have been a few new entrants to the debate (eg Sudan, Micronesia) and the positions of a few Member States (eg Slovakia, Mexico, Chile) on future action have shifted, the agenda item has largely stagnated.

While the role of the Sixth Committee has often centred on procedural action with respect to potential treaty texts, ‘[a] large number of treaties have passed through the Sixth Committee for adoption either by the UN General Assembly or by an intergovernmental conference … [a] significant number of these were either substantively negotiated and concluded within the Sixth Committee, or were prepared by another UN body – primarily the ILC – but substantively revised and concluded within the Sixth Committee’.Footnote ⁹⁸ Moreover, substantive debate is an important part of its supervisory role with respect to the Commission—even if the effectiveness of its oversight has been questionable.Footnote ⁹⁹ The drift is thus attributable not to the latent inability of the Sixth Committee to engage with matters of substance but rather to the lack of a framework for such debate to take place in a coherent and focused fashion.

It is suggested that the principal cause of this ossification is the format of the debate in the Sixth Committee. The most significant factor is its practice of deciding by consensus: whereas the rules of the General Assembly permit the Sixth Committee to take a vote,Footnote ¹⁰⁰ in practice there is a powerful inhibition—even a taboo—against ‘breaking consensus’.Footnote ¹⁰¹ Notwithstanding the fact that attendance in a given debate of 50–60 delegates of the 193 Member States can be considered to be strong, attempting to find consensus even amongst that number often results in inertia. Nonetheless, it is difficult to envisage a realistic prospect of voting being adopted in the Sixth Committee in the foreseeable future.Footnote ¹⁰²

Since 2001, it has generally not been the principal legal advisers of foreign ministries who have participated in the debate. This is because they prioritise attendance during ‘international law week’ during which the annual report of the Commission is discussed. Whereas the major delegations commanding greater resources will typically be able to send their legal advisers based in New York City to participate in the other agenda items, the small delegations may well not have a legal adviser on their staff. Even if they do, that individual could well lack research assistance or in-house library resources; confronted with the variety and complexity of the Sixth Committee agenda items—in particular, the annual report of the Commission, comprising several complex topics—prioritisation is inevitable. Whilst the small missions are likely to send one of their regular diplomats to attend sessions in which their national interests are engaged, they are unlikely to expend their limited resources on the ‘general’ items—particularly those demanding deep subject-matter expertise. Compounding this is the fact that postings to the missions are typically of two to three years’ duration so that the degree of turnover of personnel engaging with the topic of State responsibility (considered triennially) is a high one. Collective memory within a mission is likely to be highly relative to the interests and skills of individuals.

In general, one might presume that statements of delegations on the ARSIWA are scrutinised in advance by the legal directorates of the foreign ministries based at their capitals. Though the autonomy of the missions is likely to vary, there is no guarantee of securing the attention of the principal legal adviser or his proxy on a draft statement: competing demands, time differences and centralisation of authority at high levels of a long chain of command can considerably complicate the internal process of ‘clearing’ a draft. Although foreign ministries are not monolithic bureaucracies, even if a legal directorate signals approval for a statement, authority to deliver it may lie at higher levels, particularly if the substance might carry actual or perceived implications for national interests.

In these circumstances, there is scant pressure for incisive statements on the ARSIWA, which would require the dedication of limited resources to careful and time-intensive scrutiny of the evolving practice underpinning any proposed change of direction on either substance or future action. The ARSIWA thus stagnate in the Sixth Committee through inertia, for the agenda item is perceived to lack urgency due to the inertia that is expected to perpetuate. Due to the passage of time, it is thus questionable whether Member States’ positions that were last articulated in the 2007, 2010 or 2013 sessions remain current.

The establishment of the Working Group in 2010 has arguably had some utility in clarifying positions concerning the prospective resolution (the ‘zero-draft’) as well as providing a few delegations with a closed-door forum in which to speak.Footnote ¹⁰³ Due to the size of the Trusteeship Council chamber in which the Sixth Committee sits in order to be able to house (theoretically) 193 Member States plus observers in attendance, it is difficult to form relationships with more than a few delegates in a short space of time. Though delegates in this smaller gathering tend not to sit behind their usual, assigned place but to position themselves nearer to the Chair for improved intimacy, this can also make it difficult to identify speakers. As delegates might not know one another well, the proceedings are semi-formal and somewhat stilted. In this context, it is questionable how much value the Working Group has added to the formal debate in the limited time available.Footnote ¹⁰⁴

To break this dynamic, an idea is to adjust the scheduling of the agenda itemFootnote ¹⁰⁵ to coincide with the attendance of legal advisers during International Law Week. To mitigate time pressure on the annual reports of the Commission and the International Court of Justice, one day (eg Tuesday) could be allocated to the State responsibility item. This could feature one morning session of three hours dedicated to formal statements and one afternoon session of the Working Group, which would replace one of the two sessions normally allocated for informal discussion amongst the legal advisers. Whilst this would necessitate three hours of time for debate on the Commission report to be scheduled for the preceding Friday or the following Monday, this can be accommodated by so scheduling the less urgent topics (eg those on the long-term programme of work).

Notwithstanding the fact that participants in the debate refer to the Secretariat reports infrequently and generically, their scope is a significant factor. As several delegations have challenged the evidentiary authority of decisions of international tribunals referring to the ARSIWA during the debates, a weakness in the reporting mandate of the Secretariat is that it pertains to the decisions alone. In this respect, the United Kingdom made a new and interesting comment in the 2019 debate:

Though this remark is persuasive insofar as it points to a need for proper substantiation of a provision invoked as reflective of customary international law, the notion that the entirety of the text should reflect customary law as a precondition for adoption in a treatyFootnote ¹⁰⁷ would not only be an extremely high threshold but also contrary to codification practice, which necessarily includes an element of progressive development. For the purposes of identifying customary international law,Footnote ¹⁰⁸ the diplomatic practice and pleadings of States appearing as parties are important examples of practice.Footnote ¹⁰⁹ However, a practical constraint on the ability of the Secretariat to undertake a broad study of State practice might be budgetary due to the chronic financial problems of the organisation. Save for the Czech Republic, Germany and especially the United Kingdom, however, the record of Member States in responding to requests to provide information on their practice with respect to the ARSIWA has been lamentable.

Although they are included in the mandate of the Secretariat for the technical report added in 2016, the utility of that report is constrained both in terms of the mandate provided for it and the difficult formatting of the report itself. To improve the precision of the data, the reporting mandate could be amended to dispense with the technical report in tabular format. Instead, the regular report on international tribunal decisions could be adjusted to authorise the Secretariat to report on the ‘application of the ARSIWA’ rather than ‘references to the ARSIWA’. Whilst it seems to be unlikely that the resources of the Secretariat would allow it to undertake a broader study of State practice—namely, diplomatic practice concerning disputes that are not addressed in arbitration or adjudication—and the Member States have not provided this information, one way to include this important practice might be to authorise the Secretariat to collate such information as its resources might allow.

Even such relatively minor changes as these might require considerable effort to realise. The history of the agenda item has shown a tendency to become ensnared by procedural points as part of a ‘zero-sum game’ towards or away from a diplomatic conference. For example, on the aforementioned issue of frequency of discussion, the fruitlessness of the debates hitherto arguably militates in favour of a longer interval for the efficient use of resources in terms of personnel time (ie salaries) of Member States and the Secretariat,Footnote ¹¹⁰ to say nothing of overhead costs of Headquarters.Footnote ¹¹¹ In this respect, the limbo in which the ARSIWA sit has arguably created a ‘bottleneck’ for other agenda items (ie articles on transboundary harm, diplomatic protection and responsibility of international organisations) to which they are linked both in terms of substance and codification history.Footnote ¹¹²

The participation of small delegations might also be improved through joint statements, at least on the topic of future action. To date, CANZ, the Nordic Group and the CELAC have consistently made such statements while the African Group made a single intervention in 2016. Although joint statements by the European Union or the Commonwealth of Nations are improbable, some of their Member States might be able to find common ground, while the Association of South East Asian Nations, the Eurasian Union and the Alliance of Small Island States might also explore the possibility of joint statements. Such coordination seems likelier to take place if large delegations deploy their resources and energy to good effect, as such diplomatic groundwork requires sustained effort.

On the core question of future action, a majority exists in favour of convening a codification conference. However, it is also evident that some of those Member States advocate changes to the text; indeed, a few of them desire a conference precisely to seek changes. The positions of the anti-conference delegations are likewise mixed, with some maintaining substantive objections and others wishing to preserve the text intact. Due to the practice of consensus, it is evident that there is no prospect in the foreseeable future of a codification conference being convened in the face of the consistent opposition of the minority.

Even if the impasse on adoption as a treaty cannot be negotiated in present circumstances, progress can still be made by narrowing the issues and focusing future debate on them. The positions of the ‘intermediate’ camp (Belarus, China, Czech Republic, Qatar, CANZ) calling for the ARSIWA to be adopted in the form of a resolution offer a potential path towards progress. In light of the entrenched positions on a codification conference, such adoption would need to be done without prejudice to the question of a subsequent treaty (the Belarus and Czech Republic positions). By leaving open the subsequent steps and final outcome, the resolution would either be part of a phased approach (the China position) or the final outcome in itself (the CANZ position).

As this move would ‘upgrade’ the text—though remaining exhortatory unless affirmed by underpinning State practice and opinio iuris—another important condition would need to be the identification of those provisions of the ARSIWA that remain contentious. While criticism of the provisions on countermeasures and serious breaches of peremptory norms has dwindled over time, it is likely that at least some of them would remain questionable. As Table One depicts, objections have been registered to other provisions by one or two States. If senior legal advisers with authority to act were to debate the ARSIWA in light of the 20 years of practice, it is to be expected that fresh consideration of long-standing positions on substance would enable the truly debatable provisions to be identified.

The inclusion of conditional language on these issues in the adoptive resolution would assure those Member States that in fact retain objections that they might continue to seek changes to the text. Conversely, those Member States wishing to preserve the text intact would receive the guarantee that the remainder of the text would be closed to further debate. The ongoing discussion would thus focus not on the ARSIWA as a whole but rather the actual points of contention.

Whilst the question of adoption as a treaty would remain open, those in favour of that outcome could recall that there is precedent for the adoption of a narrow mandate for a codification conference on the understanding that core provisions are agreed as a package;Footnote ¹¹³ negotiation would thus focus on the remainder in addition to the outstanding and tricky question of a dispute settlement mechanism. Notwithstanding that this question is an important one, it is suggested that the debate has been somewhat mesmerised by the issue of a codification conference; while this would offer the allure of a voting procedure (eg supermajorities) in contrast to the practice of consensus in the Sixth Committee, there is nothing to prevent negotiations from being conducted ‘in-house’ (eg in a subcommittee)Footnote ¹¹⁴ pursuant to a timetable and mandate with a view to adoption as a treaty by the General Assembly.Footnote ¹¹⁵ Against the decisiveness offered by a codification conference must be weighed the risk of abstention from the eventual treaty by those States remaining dissatisfied with the text—whether due to changes accepted or rejected.Footnote ¹¹⁶ Regardless of the forum, a key priority should be the clarity of the text in terms of avoiding vagueness that necessarily creates scope for conflicting State practice resulting from divergent interpretations.