Summaries of the Work of the International Law Commission
Succession of States in respect of State responsibility
See also: Analytical Guide | Texts and Instruments
At its sixty-eighth session, in 2016, the Commission included the topic “Succession of States in respect of State responsibility” in its long-term programme of work.1 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2
The General Assembly, in resolution 71/140 of 13 December 2016, took note of the inclusion of the topic in the long-term programme of work of the Commission.
At its sixty-ninth session, in 2017, the International Law Commission decided to include the topic “Succession of States in respect of State responsibility” in its programme of work and appointed Pavel Šturma as Special Rapporteur for the topic.3
At the same session, the Commission had before it the first report of the Special Rapporteur,4 which sought to set out the Special Rapporteur’s approach to the scope and outcome of the topic, and to provide an overview of general provisions relating to the topic. Following the debate in plenary, the Commission decided to refer draft articles 1 to 4, as contained in the report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently took note of the interim report of the Chair of the Drafting Committee on draft articles 1 and 2 provisionally adopted by the Committee, which was submitted to the Commission for information.5
At its seventieth session, in 2018, the Commission had before it the second report of the Special Rapporteur.6 In his report, which was composed of four parts, the Special Rapporteur at first addressed certain introductory issues, including the legality of succession (Part One). He then discussed the general rules on succession of States in respect of State responsibility, particularly in relation to attribution and in relation to the difference between continuing and completed breaches (Part Two). Thereafter, the Special Rapporteur considered certain special categories of State succession to the obligations arising from responsibility (Part Three). The future programme of work on the topic was then addressed (Part Four). The Special Rapporteur proposed seven draft articles corresponding to the issues considered in Part One (draft article 5), Part Two (draft article 6), and Part Three (draft articles 7 to 11) of his report.7
Following the debate in plenary, the Commission decided to refer draft articles 5 to 11, as contained in the second report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently took note of the interim report of the Chair of the Drafting Committee on draft article 1, paragraph 2, and draft articles 5 and 6, provisionally adopted by the Drafting Committee, which was submitted to the Commission for information only.8
At the same session, the Commission decided to request from the Secretariat a memorandum providing information on treaties registered pursuant to Article 102 of the Charter of the United Nations which may be of relevance to its future work on the topic.9
At its seventy-first session, in 2019, the Commission had before it the third report of the Special Rapporteur10, which addressed introductory issues, and discussed questions of reparation for injury resulting from internationally wrongful acts committed against the predecessor State, considering, in particular, claims for reparation in different categories of State succession, as well as various approaches to reparation for injury arising from internationally wrongful acts committed against the nationals of the predecessor State. The Special Rapporteur proposed several new draft articles and made a number of technical suggestions. The Commission also had before it a memorandum by the Secretariat providing information on treaties which may be of relevance to its future work on the topic.11
The Commission decided to refer draft articles 2, paragraph (f), X, Y, 12, 13, 14 and 15, and the titles of Part Two and Part Three, as contained in the third report of the Special Rapporteur, to the Drafting Committee, taking into account the views expressed in the plenary debate. The Commission subsequently considered a report of the Drafting Committee on the topic and provisionally adopted draft articles 1, 2 and 5, which had been provisionally adopted by the Drafting Committee at the sixty-ninth and seventieth sessions, and the commentaries thereto. The Commission also received an interim oral report on draft articles 7, 8 and 9, provisionally adopted by the Committee at the present session. The report was presented for information only.12
At its seventy-second session, in 2021, the Commission had before it the fourth report of the Special Rapporteur,13 which was comprised of three parts. The Special Rapporteur provided an overview of the work on the topic, which included a summary of the debate in the Sixth Committee and an explanation of the methodology of the report (Part One). The Special Rapporteur then addressed questions related to the impact of succession of States on forms of responsibility, in particular different forms of reparation (restitution, compensation and satisfaction), the obligation of cessation and assurances and guarantees of non-repetition (Part Two). Lastly, the Special Rapporteur discussed the future programme of work on the topic (Part Three). The Special Rapporteur proposed five news draft articles (draft articles 7 bis, 16, 17, 18 and 19).
The Commission decided to refer draft articles 7 bis, 16, 17, 18 and 19, as contained in the fourth report of the Special Rapporteur, to the Drafting Committee, taking into account the views expressed in the plenary debate. The Commission also considered a report of the Drafting Committee on the topic and provisionally adopted draft articles 7, 8 and 9, which had been provisionally adopted by the Drafting Committee at the seventy-first session, and the commentaries thereto. The Commission received an interim oral report on draft articles 10, 10 bis and 11, provisionally adopted by the Committee at the present session. The report was presented for information only.14
At its seventy-third session, in 2022, the Commission had before it the fifth report of the Special Rapporteur,15 which was composed of four parts. In his report, the Special Rapporteur provided an updated overview of the work on the topic undertaken thus far, which included a summary of the debate in the Sixth Committee held at the seventy-sixth session of the General Assembly, together with an explanation of the methodology of the report (Part One). The Special Rapporteur then examined the question of a plurality of injured successor States and a plurality of responsible successor States (Part Two) and also proposed a new scheme for the consolidation and restructuring of the draft articles referred to the Drafting Committee at previous sessions on the basis of proposals contained in his reports (Part Three). Lastly, the Special Rapporteur addressed the future programme of work on the topic (Part Four). No new draft articles were proposed.
At the same session, the Commission decided, on the recommendation of the Special Rapporteur, to instruct the Drafting Committee to proceed with the preparation of draft guidelines on the basis of the provisions previously referred to the Drafting Committee (including those provisions provisionally adopted by the Commission at previous sessions), taking into account the debate held in the plenary on the Special Rapporteur’s fifth report. The Commission also considered two reports of the Drafting Committee on the topic and provisionally adopted draft guidelines 6, 10, 10 bis and 11, which had been provisionally adopted by the Drafting Committee in 2018 and 2021, draft guidelines 7 bis, 12, 13, 13 bis, 14, 15 and 15 bis and commentaries to all 11 draft guidelines provisionally adopted at the session. As a result of the change of form of the outcome, the Commission also took note of draft articles 1, 2, 5, 7, 8 and 9, as revised by the Drafting Committee to be draft guidelines. It also took note that the Special Rapporteur had provided revised commentaries to these draft guidelines to assist the Commission in its future work on the topic.16
At its seventy-fourth session, in 2023, the Commission established a Working Group on the topic, chaired by Mr. August Reinisch, in order to consider the way forward in relation to the topic. Upon receiving the oral report of the Working Group, the Commission took note of the Working Group’s recommendations, inter alia, that the Commission should not proceed with the appointment of a new Special Rapporteur, and that the Working Group should be re-established at the seventy-fifth session with a view to undertaking further reflection, and making a recommendation, on the way forward for the topic.
The work of the Commission on the topic as described above has been proceeding in accordance with the resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.17
1 See Yearbook … 2016, vol. II (Part Two), para. 308.
3 See Yearbook … 2017, vol. II (Part Two), paras. 211, 263.
4 Document A/CN.4/708.
5 See Yearbook … 2017, vol. II (Part Two), paras. 212–215.
6 Document A/CN.4/719.
7 See Yearbook … 2018, vol. II (Part Two), para. 222.
10 Document A/CN.4/731.
11 Document A/CN.4/730.
12 See Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10), paras. 77–80.
13 Document A/CN.4/743.
14 See Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), paras. 122–125.
15 Document A/CN.4/751.
16 See Official Records of the General Assembly, Seventy-seventh Session, Supplement No. 10 (A/77/10), paras. 75–78.
17 General Assembly resolutions 72/116 of 7 December 2017, 73/265 of 22 December 2018, 74/186 of 18 December 2019, 75/135 of 15 December 2020, 76/111 or 9 December 20212 and 77/103 of 7 December 2022.