ASSEMBLY’S LEGAL COMMITTEE COMMENDS INTERNATIONAL TRADE LAW BODY FOR EFFORTS ON SECURED FINANCING, BETTER ACCESS TO LOW-COST CREDIT
ASSEMBLY’S LEGAL COMMITTEE COMMENDS INTERNATIONAL TRADE LAW BODY FOR EFFORTS ON SECURED FINANCING, BETTER ACCESS TO LOW-COST CREDIT
|Department of Public Information • News and Media Division • New York|
Sixty-first General Assembly
14th & 15th Meetings (AM & PM)
Assembly’s legal committee commends international trade law body For efforts
on secured financing, better access to low-cost credit
Two Texts on UNCITRAL Approved; Debate Continues on Law Commission
Report Topics: Shared Natural Resources, Responsibility of Organizations
The Sixth Committee (Legal) in two meetings today unanimously approved two draft resolutions on the outcome of the thirty-ninth session this year of the United Nations Commission on International Trade Law (UNCITRAL), and also continued its examination of part two of the International Law Commission’s report covering the topics, “Shared natural resources” and “Responsibility of international organizations”.
By the terms of the first draft resolution on UNCITRAL’s report, the General Assembly would take note of the report and commend the Commission for finalizing and adopting revised articles of the Model Law on International Commercial Arbitration on the form of the arbitration agreement and interim measures. The Assembly would also commend UNCITRAL for its approval of the substance of the recommendations of the draft legislative guide on secured transactions, designed to facilitate secured financing, thus promoting increased access to low-cost credit and enhancing national and international trade.
The General Assembly would also, by the second UNCITRAL draft resolution, recommend that all States give favourable consideration to the enactment of the revised articles of the Model Law, or the revised Model Law on International Commercial Arbitration of UNCITRAL when enacting or revising their laws, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice. The Assembly would again express appreciation to UNCITRAL for formulating and adopting the recommendation regarding the interpretation of article 2, paragraph 2, and article 7, paragraph 1, of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
[Article 2, paragraph 2 states that “the term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”. Article 7, paragraph 1 states that “the provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such an award is sought to be relied upon”.]
Speaking in the continuing debate on the report of the International Law Commission, the representative of the United States said her government believed that work on transboundary aquifers constituted an important advance in providing a possible framework for the reasonable use and protection of underground aquifers which were playing an increasingly important role as water sources for human populations. Nevertheless, there was much to learn about transboundary aquifers in general, and her country preferred context-specific arrangements as the best way to address pressures on transboundary groundwaters.
Brazil’s representative, speaking on the same subject of “Shared natural resources”, said there should be a direct reference in the articles to the sovereignty principle regarding the use of transboundary resources. Brazil favoured the Commission’s work leading to a non-binding declaration by the General Assembly. He reaffirmed the primary role of regional agreements as the most suitable tool for the legal regulation of transboundary aquifers. He said efforts should be geared to producing a set of principles that could guide States in the elaboration of regional agreements.
The representative of Republic of Koreastrongly supported the work of the Commission on the responsibilities of international organizations, and added that its successful completion would be comparable to its accomplishments in the Vienna Conventions on the Law of Treaties, which established a single system of inter-State treaties as well as treaties allowing for the participation of international organizations. Rules on the responsibility of international organizations were essential to establishing a comprehensive framework for the law of international responsibility.
The representative of Jordan said the Commission should, at a later stage, include the utilization and activities related to oil and natural gas in its work, whether in the second reading or as a separate set of draft articles. He welcomed a provision in the draft articles that asserted the sovereign rights of aquifer States over the portion of the transboundary aquifer located within their territory.
The United Kingdom’s representative reiterated her country’s caution against wholesale application of the articles on State responsibility to international organizations without proper consideration being given to the important differences between States and individual organizations, or allowing for the diversity in the types of international organizations and their functions. She urged the Commission to explore the existing practice and to give detailed thought and careful reflection to the different and complex issues raised by extending the principles of State responsibility to international organizations.
Other statements on the two topics were made during the two meetings by the representatives of Germany, China, Hungary, the Netherlands, Canada, Mexico, Belgium, Spain, Japan, France, Italy, Portugal, Uruguay, Ethiopia, Belarus, Poland, Switzerland, Greece, New Zealand, Malaysia and Iran.
The Sixth Committee will meet again at 10 a.m. tomorrow, Tuesday, 31 October 2006, to continue its consideration of the two topics and to take up new chapters in the report of the International Law Commission covering Reservations to Treaties and Unilateral Acts of States.
The Sixth Committee (Legal) met this morning to continue consideration of the second part of the Report of the International Law Commission covering the topics “Shared Natural Resources” and “Responsibility of International Organizations”.
The Committee was also to hear the introduction of, and then take action on, two draft resolutions related to the report of the United Nations Commission on International Trade Law (UNCITRAL).
Draft resolution A/C.6/61/L.7
By the terms of the draft resolution on the report of the United Nations Commission on International Trade Law (UNCITRAL) on the work of its thirty-ninth session (document A/C.6/61/L.7), the General Assembly would take note of the report with appreciation, and would commend the Commission for finalizing and adopting revised articles of the Model Law on International Commercial Arbitration on the form of the arbitration agreement and interim measures.
It would also commend the Commission for its approval of the substance of the recommendations of the draft legislative guide on secured transactions designed to facilitate secured financing and, thus, promoting increased access to low-cost credit and enhancing national and international trade.
The Assembly would welcome the Commission’s progress in revising its Model Law on Procurement of Goods, Construction and Services, and on a draft instrument on transport law. It would endorse the Commission’s decision to take up new topics in the areas of arbitration and insolvency law.
The Assembly would reaffirm the importance, particularly for developing countries, of the Commission’s technical assistance programme, and cooperation in the field of international trade law reform and development. It would reiterate its appeal to the United Nations Development Programme (UNDP) and other bodies responsible for development assistance to support the Commission’s technical assistance programme and to cooperate and coordinate with it in their activities.
By other terms of the draft, the Assembly would decide to consider, in its competent main committee, travel assistance to the least developed countries which are members of the Commission. It would encourage the Commission to further explore different approaches to the use of partnerships with non-State actors in the implementation of its mandate, in particular, in the area of technical assistance.
Furthermore, the Assembly would welcome the Commission’s decision to hold, in the context of its fortieth session in 2007, a congress on international trade law in Vienna, to review the results of its past work as well as the related work of other organizations active in international trade law.
Draft resolution A/C.6/61/L.8
The second draft is titled “Revised articles of the Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law, and the recommendation regarding the interpretation of article 2, paragraph 2, and article 7, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958.
By its terms, the General Assembly would express its appreciation to the Commission for formulating and adopting the revised articles (the text of which is contained in its report as annex I). It would recommend that all States give favourable consideration to the enactment of the revised articles of the Model Law, or the revised Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice.
The Assembly would again express appreciation to UNCITRAL for formulating and adopting the recommendation regarding the interpretation of article 2, paragraph 2, and article 7, paragraph 1, of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is contained in Annex II of the Commission’s report.
The Secretary-General would be requested to ensure that the revised articles of the Model Law and the recommendation become generally known and available.
BORIS GEHRKE (Germany), supporting the statement made on 27 October by Finland for the European Union, said that, thus far, the draft on the responsibility of international organizations had successfully balanced the similarities of, and differences between, the two aspects of responsibility under international law.
In regard to draft article 22, on circumstances precluding wrongfulness, he expressed satisfaction at the compromise reached, which acknowledged that necessity should be invocable only under strict circumstances that took into account the special character of international organizations as compared to States.
Concerning draft article 28, he expressed general support for the concept that States should not be allowed to evade their international obligations by “transferring competences” to an international organization. However, he added, he would like to see more clarification of the conditions of “circumvention,” and more consideration of the introduction of a special element of “misuse.” In that area, he said, ideas could be drawn from the case law of the European Court of Human Rights.
In regard to State responsibility for wrongful acts of international organizations (article 29), he said a number of questions had been left open, and he concurred with Finland and the European Commission on the means to redress those gaps. He also agreed with the Commission that no provision should be included for a residual rule for those cases in which responsibility did not arise for a State in connection with the act of an international organization.
MA XINMIN ( China) said international cooperation on transboundary aquifers should be based on respect for the permanent sovereignty of aquifer States over water resources within their territories, and their reasonable exploration and utilization should not be restricted. He preferred that work on the subject take the form of guiding principles, since he did not believe conditions were ripe for the formulation of a treaty. The views of countries should be solicited before deciding whether to pursue study on other transboundary issues. He then offered specific suggestions on wording in several articles.
On the responsibility of international organizations, he said he supported the efforts of the International Law Commission to fill the gap left by the articles on responsibilities of States in connection with the wrongful act of an international organization. He said China did not believe “necessity” should be used as a ground for precluding the wrongfulness of an act of an international organization. Referring to the articles on aid or assistance, China believed the term “State” could refer to both a member of an international organization and a non-member. China also believed that when a State member played a major and leading role in the commission of an act by an international organization, then perhaps the main responsibility for the consequences of that act should be placed on the State member.
RITA SILEK ( Hungary) said that, in general, her delegation was satisfied with the draft articles on the law of transboundary aquifers. At the same time, there were some concerns, and Hungary was disappointed that from article 6 on the “obligation not to cause significant harm to other aquifer States”, the Commission had decided to eliminate the provision concerning compensation when such harm was caused, even when all appropriate measures had been taken.
However, in light of recent developments in the field in environmental law, Hungary believed that in every case where significant harm was caused by one aquifer State to another, adequate compensation should be provided according to the “polluter pays” principle. She added that States had a responsibility under that principle to pay compensation regardless of whether measures had been taken to prevent such harm, and reference to the principle should be included in the draft. Turning to article 11, she said Hungary believed that choosing the term “precautionary principle”, rather than “precautionary approach”, would contribute to the general acceptance of that principle of international law.
Finally, she proposed amendments to the definitions of “recharge zone” and “discharge zone” as contained in article 2, paragraphs (f) and (g). She said Hungary believed that the term “catchments area” in relation to the term “recharge zone” was more commonly used in the context of surface water. She suggested that “recharge zone” should mean “the zone which contributes water to an aquifer, including (consisting of) that part of the catchment area of rainfall water where such water flows to an aquifer by runoff on the ground and/or infiltration through soil.”
She said she also believed that the definition of “discharge zone” was too narrow, and suggested that “discharge zone” should mean the zone where water originating from an aquifer flowed to its outlets, such as watercourse. Lake oasis, wetland and ocean, or the upward flow system, kept the groundwater table permanently close to the surface.
JOHAN G. LAMMERS ( Netherlands) said his country closely followed the work of the International Law Commission on shared natural resources, since the Netherlands shared many natural resources with other States, such as groundwater, mineral deposits, oil and gas, and migratory species. International regulation of the uses of and impacts on shared natural resources was, therefore, of the highest significance.
He expressed concern with the general approach on the topic; the scope of the proposed rule had limits that were too great, such as only covering aquifers under the draft articles, which meant forgoing the opportunity to develop an overarching set of rules for all shared natural resources, including gaseous and liquid substances other than groundwater. Further, the final form of the proposed rules was premature, given the differing views expressed by States in the Sixth Committee. The draft articles were no longer presented in the form of a framework for cooperation.
Referring to the scope under draft article 1, he asked how two different definitions of the same principle of equitable and reasonable utilization of non-renewable resources could be reconciled, when considering its application to both aquifers and aquifer systems that were hydraulically connected to international watercourses. He suggested that the definition of aquifer State under draft article 2 would need to be revisited when it came time to apply it to liquid and gaseous substances other than water.
He said he had not agreed with the deletion, under draft article 6, of the obligation to discuss the question of compensation if significant harm was caused in spite of compliance with the duty of due diligence. This was especially relevant since draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities did not apply to non-hazardous activities. He said he doubted that the obligation on States to cooperate with other States experiencing emergency situations under draft article 16 reflected customary international law. And he was not convinced that the derogation provision to protect vital human needs was required, in addition to a State’s right to invoke circumstances precluding wrongfulness to justify non-compliance, since that right was subject to safeguards, which merited further consideration on whether or not to forego protection of vital human needs.
Turning to the topic of responsibility of international organizations, the Netherlands representative said that, as recognized in draft article 2 “use of terms”, international organizations might, in addition to States, also have other international organizations and entities as members. The responsibility of members covered by draft articles 28 (international responsibility in case of provision of competence to an international organization) and 29 (responsibility of a State member of an international organization for the internationally wrongful act of that organization) might also be incurred by international organizations which were themselves members of other international organizations. The International Law Commission, therefore, had rightly indicated in its commentary that “additional provisions would have to be introduced in Chapter IV in order to deal with parallel situations concerning international organizations as members of other international organizations”.
He said that if the notion were applied to United Nations, Member States might be responsible for general and far-reaching powers they had conferred on the Security Council. Using those powers, it was not excluded that the Security Council might act in such a way that, if States would have done the same, those acts would be considered wrongful, and for which they would have been responsible. That could frustrate the functioning of the Security Council, since its members might want to avoid any risk of being held responsible for actions undertaken by the Council on the basis of powers given to it long ago.
JOANNA HARRINGTON ( Canada) said that many of the topics on the Commission’s agenda, as well as those proposed for its long-term work programme, could not be dealt with by lawyers operating in isolation. Thus, the Commission’s willingness to look outside itself to deal with matters concerning transboundary aquifers was a welcome practice to be encouraged.
He noted that, in the past, Canada had expressed some reservations about some of the principles on which the work on transboundary aquifers had been based. Canada was not convinced that the Convention on Non-Navigable Uses of International Watercourses provided a necessary model on which to proceed, given that that instrument had yet to gain widespread acceptance among States, and that Canada believed in the principle of “equitable and reasonable utilization”, which had to be looked at alongside other approaches that were found in bilateral agreements.
Nevertheless, he said, Canada would be studying the draft articles closely both to see whether they provided a useful basis for a broad international regime on the subject, and for the implications they might have, specifically for transboundary aquifers affecting Canada.
Turning to issues concerning the transboundary aquifers between Canada and the United States, and the 1909 Boundary Waters Treaty regime governing them, he said the success of the international joint committee established under that treaty, had demonstrated the value of cooperative management schemes for dealing with transboundary waters. To that end, he added, the draft articles encouraged the development of such regimes, but the Commission might give more attention to the way that was currently handled. While paragraph 2 of draft article 7 appeared to provide a general endorsement of the use of “joint mechanisms” by aquifer States, the use of the word “shall”, in draft article 13, seemed to impose an obligation on States to establish such mechanisms. Therefore, while Canada was, of course, in favour of encouraging States to enter bilateral and other arrangements that would facilitate the management of transboundary aquifers, it was unsure of the value of placing an obligation on States to do so. It wondered if that was what the Commission really intended. With the first reading of the draft articles completed, Canada would encourage the Commission to remain flexible as it pressed ahead with its work.
ALEJANDRO ALDAY ( Mexico) said he welcomed the inclusion of the study of transboundary aquifers in the Commission’s work, and the fact that technical experts had joined the Commission in dealing with the subject; progress on it would contribute to the efficient and sustainable use of those aquifers. The 1997 Convention on the Law of Non-Navigational Uses of International Watercourses, although not yet in force, was an indispensable reference guide on the subject of transboundary aquifer systems, particularly the application of the principles of cooperation and adopting measures to prevent, reduce and control pollution.
He said that, as Mexico had indicated in the past, it would be necessary, at some point, to have a specific regime covering non-renewable transboundary aquifers. The Commission would also have to take up the other two topics of shared natural resources, that of oil and natural gas.
On the scope of application, he said he believed it would be necessary to clarify the norm that was applicable to transboundary aquifers that were hydraulically connected to international watercourses. He was pleased at the inclusion of “other activities that may have an impact on transboundary aquifers and systems”, since as it was often activities that were conducted above or around aquifers that might have a negative impact on them. The application of sustainability to non-renewable transboundary aquifers was debatable, and so the concept needed clarification. Article 13 on management should be more emphatic, and the obligation to do no harm should also include consequences. It was also important to include references to capacity building in the field.
WILLIAM ROELANTS DE STAPPERS (Belgium), speaking on the topic of responsibility of international organizations, said his delegation considered that article 28 could be read by mistake as an obligation for international organizations to comply with all the international duties of their member States. That was not legally correct, nor possible in practice; it would be better if the article specified, in the commentary, the scope of the concept of “attribution of competence” by a State to an international organization.
Responding to questions posed by the Commission, he said he thought that article 29 paragraph 1 already suggested rejection of the idea of a payment of compensation by an international organization that was not responsible for an internationally wrongful act of that organization. From the article, he said it could be deduced that member States could not be liable for a wrongful act committed by an international organization. He also noted that an organization had a legal personality distinct from that of its members, and quoted a United Kingdom case law to the effect that “the legal personality of an international organization consecrated the autonomy of its own liability, compared to that of its member States.”
CONCEPCION ESCOBAR HERNANDEZ ( Spain), addressing responsibility of international organizations, said she appreciated the strict approach the Commission had taken to the section on “circumstance precluding wrongfulness”, following the articles on State responsibility. Yet, she believed it would be necessary to introduce some modifications to the provisions, to adapt them to the special character of international organizations. She doubted whether some of the circumstances could fully apply to international organizations.
She said she basically supported articles 17 on consent, 20 on “force majeur”, 21 on extreme danger, 23 on peremptory norms, and 24 on consequences of invoking a circumstance that precluded wrongfulness. However, she had reservations with aspects of a few other articles. For example, in article 19, the self-defence concept did not distinguish well enough the specific nature of self-defence, when used in reference to an international organization, which was very different from when it was used in reference to States. Also, although the Commission had adopted a restrictive approach with regard to “necessity” in article 22, she still had doubts about the chosen formula. It should be reviewed in future work. She did not consider article 28 to be precise enough, and article 29 also left certain meanings ambiguous.
HIROSHI TAJIMA (Japan), discussing the topic of shared natural resources and the specific issue of transboundary groundwaters contained under it, said the Commission rightly avoided attempting to establish a wide range of rules and principles which could also be applied to other shared natural resources. The Commission had rightly focused its work on formulating a legal framework on transboundary aquifers, bearing in mind the existing shortage of groundwater resources as a result of over-exploitation and pollution. His delegation believed the form of the final instrument should be decided by the Commission on the basis of guidance received by Governments.
On the responsibility of international organizations, he said articles concerning the circumstances precluding wrongfulness closely followed the draft articles on state responsibility. However, his delegation shared the doubts of others concerning such conformity and it was important to consider differences among international organizations.
On article 18, he said article 51 of the Charter did not directly apply to self-defence efforts of international organizations; differences between them and States should be taken into account. On article 29, regarding the responsibility of a State member of an international organization for the wrongful act of that organization, his delegation shared the Commission’s view that Member States were, in principle, not responsible for that act. That issue could be revisited when the Commission discussed the issue of compensation. He said that, although it was not clear which peremptory norms would apply to international organizations, violation of them would occur in most cases as the result of an excess of power.
EDWIGE BELLIARD ( France), speaking on the “responsibility of international organizations”, said her delegation had no particular comments to make on the draft articles except to wonder whether a safety clause accompanied by commentaries would not have been sufficient. She said that, as currently written, draft article 28 (international responsibility in case of provision of competence to an international organization), seemed to have considerable scope; in her view, a tighter framework would be desirable in defining the responsibility of a member state of the organization. She said the European Court of Human Rights -- referred to in the commentary on draft article 28 –- did not appear to recognize such an expansive scope for state members’ responsibilities.
Responding to the first question posed to Governments by the Commission, she said France could not accept, as a general principle, that Member States were obliged to compensate an injured person instead of a responsible international organization. On the second question from the Commission, she said that if such a duty of cooperation arose from the progressive development of an instrument, nothing would seem to justify the draft articles on responsibility of international organizations being separated from the responsibility of States.
GUISEPPE NESI ( Italy) said that while the law of transboundary aquifers had as yet been little developed, aquifers represented a very important natural resource. The draft articles appeared to strike an appropriate balance between the basic need for long-term protection of aquifers and the need to utilize them for ensuring the water supply. They reminded non-aquifer States of the need to cooperate with aquifer States for the protection of an aquifer when a recharge or discharge zone of the aquifer was situated in the territory of a non-aquifer State.
Although the arrangement of the draft on responsibility of international organizations was still provisional, he said, it allowed the reader to have a full picture of when responsibility arose for an international organization, and when it arose for a State in connection with the conduct of an international organization. Referring to article 28 on circumvention by a member State of its international obligation, he said the wording of the article would be improved if the cases in which responsibility arose for a member State were identified with greater precision.
LUIS SERRADAS TAVARES ( Portugal) commended the Special Rapporteur for his exhaustive work in producing a good set of draft articles, and the working group on shared natural resources for its work.
He said cooperation between States in relation to sovereignty over a portion of a transboundary aquifer or aquifer systems was important. Portugal was concerned at the lack of clarity and inadequate definition of several terminologies. The definition of “significant harm” (draft article 6) and of “significant adverse effect” (draft article 14) left gaps which would be interpreted by States on a case-by-case basis, potentially creating an unjustified disadvantage for weaker States. The definition of “ecosystem” (draft article 9), and the term, “adversely affects to a significant extent” (draft article 19), also lacked clarity. It was, however, commendable that draft articles mentioning the human right to water and the principles of international environmental law were included.
On the topic of responsibility of international organizations, he said the draft articles had followed too closely those on state responsibility. They had used too many examples from the European Community, and had not made concrete proposals to be submitted for comments of the Sixth Committee. Also, the report had substituted the word “state” for “international organization”, without explaining the legal and decision-making differences between the two terms.
He said he had doubts about the effectiveness of draft article 18 with regard to self-defence, since a State would likely deal with the concept of self-defence differently than an international organization.
SUSANA RIVERO ( Uruguay) said that although her country was flexible as to the final form of the draft articles, it preferred that they be recommendations or guidelines. The subject still needed a greater contribution from the scientific and technical fields, and for more State practice in the area. Also, the law commission had yet to deal with two other related shared natural resource topics, those of oil and natural gas. There were certain parallels between the subjects, even though there were also differences. She cited studies on aquifers that were under way whose results might also influence future decisions on the topic.
In the meantime, she said Argentina, Brazil, Paraguay and her country continued to work together to jointly manage the shared Guarani aquifer water system. She was certain that their regional experience could, in the future, increase the knowledge base of the international community in the field. As to the specifics of the draft articles, she said Uruguay generally shared the views and comments, but was concerned about the drafting of articles 6 and 11 concerning significant harm.
ELIZABETH WILCOX (United States), speaking on the topic of shared natural resources, said that her Government believed that work on transboundary aquifers constituted an important advance in providing a possible framework for the reasonable use and protection of underground aquifers which were playing an increasingly important role as water sources for human populations. Nevertheless, she said, there was much to learn about transboundary aquifers in general; specific aquifer conditions and State practice varied widely. For that reason, her country preferred context-specific arrangements as the best way to address pressures on transboundary groundwaters. Numerous factors might appropriately be taken into account in any specific negotiation, such as hydrological characteristics of the aquifer at issue; present uses and expectations regarding future uses; climate conditions and expectations; and economic, social, and cultural considerations.
She said the United States recognized that many States had expressed an interest in some form of global framework to guide the negotiation of such arrangements. If that approach were taken, the proposed articles should then take the form of a convention to which States might choose to adhere to or not, given the fact that they went well beyond current law and practice. In that event, she said, the text should include appropriate final articles for a convention and additional articles that established the relationship between the convention and other bilateral or regional arrangements. She said the Commission should be careful not to supersede existing bilateral or regional arrangements, or to limit the flexibility of States in entering into such arrangements.
On the topic of responsibility of international organizations, she said the United States remained concerned about the underlying assumption that had guided work on the subject -– that the draft articles on State responsibility served as the appropriate model for international organizations. Unlike States, which could be seen to share a fundamental set of qualities, she said there was great diversity in the structure, functions, and interests of international organizations. In addition, many of the interests and relationships of States that underpinned the draft articles of State responsibility -- such as those related to sovereignty, citizenship, and territorial integrity -– either did not exist or did not exist in a parallel form in international organizations. Those differences made transposing the articles on State responsibility to international organizations problematic. The United States recognized that that was a challenging topic and encouraged the Commission to focus particular attention on problems that arose in the existing practice of international organizations.
Commenting on one of the questions posed by the Commission in its report, the United States representative said her delegation did not believe that members of an international organization had a general obligation to provide compensation for internationally wrongful acts of that organization for which the State was not responsible. It believed that the Commission should be cautious about elaborating principles that might serve as a disincentive for States to participate in and contribute to the work of international organizations.
RONALDO MOTA SARDENBERG ( Brazil) said the subject was of great interest to his country, not least because more than 70 per cent of one of the world’s largest transboundary aquifers -- the Guarani Aquifer -- was located inside Brazilian territory. Brazil generally agreed with most of the proposed articles. The one concerning exchange of information avoided placing an excessive burden on the State for the provision of information that was not readily available. As to the scope of the draft articles, he said he was concerned that a loose formulation of the scope might have the unwanted effect of imposing unnecessary limitations on the permitted activities in the area of the aquifer.
He said there should be a direct reference in the articles to the sovereignty principle regarding the use of transboundary resources. Brazil favoured the Commission’s work, leading to a non-binding declaration by the General Assembly. He reaffirmed the primary role of regional agreements as the most suitable tool for the legal regulation of transboundary aquifers, since they took into consideration aspects that were specific to each aquifer or aquifer system and, thus, provided a “tailor-made body of principles” that were accepted by all neighbouring States. Efforts should be geared to producing a set of principles that could guide States in the elaboration of regional agreements.
MINELIK ALEMU GETAHUN (Ethiopia) cited certain principles from the 1997 Convention on Non-Navigational Uses of International Watercourses -- namely, those of sovereignty over resources, equitable and reasonable utilization and cooperation –- and said they were worth noting in the work on transboundary aquifers. However, implementation of those principles would need refinement in the related draft articles. For example, the article on planned measures would effectively institute a veto system over the development of States where the aquifer originated and would impose on them excessive obligations. Since the purpose of the article was to facilitate exchange of information and data, the matter should be left to article 8 which had sufficiently addressed that exchange. Given the varying monitoring capabilities of States and compliance with layers of obligations envisaged, he said, it was important to review the articles on monitoring and management. He agreed with deferring a decision on the final form of the draft articles.
He said he also believed that the Sixth Committee should allow sufficient time for the draft articles on diplomatic protection to be studied before they were submitted to the General Assembly. Given that the draft articles on responsibility of international organizations, touched upon fundamental principles of international law, and would have repercussions on activities of international organizations and their members, it was critical, he said, that the Commission pursue wider consultation with member states and international and regional organizations. He wondered whether it was advisable to attempt codification on the subject of unilateral acts in light of insufficient and inconsistent State practice. As to the effects of armed conflicts on treaties, the United Nations Charter and jus cogens, or peremptory norms of international law, should be at the core of the study. As to the new topics on the Commission’s agenda, he said Ethiopia particularly encouraged the codification and development of norms in the protection of persons in the event of disasters.
LUDMILA KOMENKOVA ( Belarus) said the elaboration of an instrument to cover the responsibility of international organizations was an important step in the reaffirmation of the principle of the supremacy of law in that field. Although the mechanism of the responsibility of international organizations was not taken up in the first drafting by the Commission, the draft articles so far completed by it could be considered a good basis for further elaboration of the instrument on the topic.
She said that some of the draft articles related to circumstances which excluded illegality and responsibility of States in connection with acts of international organizations; while the drafts on the first part were similar to the text on state responsibility, the new draft articles represented a new stage in the elaboration of the instrument on the responsibility of international organizations. She shared the Commission’s view on the need to regulate the actions of both members, and non-members, of an international organization for illegal acts of the organization.
On the first question from the Commission, she said the position of Belarus was that compensation for the damage should be considered as a consequence of a commitment of an internationally wrongful act, and as an establishment of responsibility. Compensation should not be considered as a consequence of membership of a State in an international organization. International law did not have a norm on the responsibility of member States for all acts of international organizations dependant only on the fact of membership. Thus, a State that was not responsible for an internationally wrongful act was not obliged to provide compensation to the injured party. Belarus believed that if an international organization itself was unable to compensate for the damage, an obligation to do so should be placed on those States -– members of the international organization – which, together with the organization, were responsible for the commitment of a wrongful act.
She said her country was ready to participate in consultations on the issue, and consider the arguments of those who supported the different approaches. It believed that it was not correct to allow the situation when only an international organization was responsible for the commitment of an internationally wrongful act and none of the member States shared the responsibility. Such a situation would undermine the authority of the international organization and violate the legitimate rights of injured parties, she said.
REMIGIUSZ A. HENCZEL ( Poland) said his delegation supported the adoption of draft articles on shared natural resources as a draft convention. His delegation stressed the importance of international protection of transboundary aquifers for the benefit of all States; it would be the right continuation of the Commission’s successful previous work on the codification of the law on surface waters, from which a large number of elements had been borrowed. If the idea of a convention on the articles was approved, he said more precise rules should be established on the mutual relationship between the new convention and the 1977 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses.
On the topic of responsibility of international organizations, he said his delegation appreciated the creative approach adopted by the Commission, as international practice was limited. It shared the opinion that most disputes and claims concerning international organizations were resolved through diplomatic channels with no reports presented to the general public. That made the work of the Commission’s Special Rapporteur more difficult.
His said he was disappointed by the lack of a proposal to the wording of article 19, “countermeasures”. The article should contain clear reference to the United Nations Charter to indicate substantive and procedural limitations to countermeasures undertaken by the organization. He saw a close relationship between that provision and draft article 28. He agreed, with regard to articles 25-30, that by international practice, member States of an international organization could be excluded from responsibility for acts of the organization. However, he added, in certain cases, such responsibility could be accepted.
When the Committee met again this afternoon, JURG LINDENMANN ( Switzerland), speaking on details of the draft articles on responsibility of international organizations, expressed doubts about article 27 on coercion, saying the current wording appeared to be too restrictive and could give rise to abuse. The same applied to article 14, in which an international organization coerced a State or other international organization. Switzerland supported the principle in article 28 that a State could incur international responsibility by providing an international organization with competence. Article 28 envisaged a situation which was, to a certain extent, analogous to that considered in article 15, yet article 15 was drafted in much wider terms, and perhaps, went a bit too far.
He then addressed, in detail, the questions posed by the Commission on article 29 concerning obligations to compensate and obligations to cooperate to bring an end to serious breaches of a peremptory norm of general international law committed by an international organization.
MAHMOUD HMOUD (Jordan), speaking on the topic of shared natural resources, said that until agreement was reached on the form the draft articles should take, the articles would serve as guiding principles for States in dealing with transboundary waters, nationally, regionally and multilaterally. He said the Commission should, at a later stage, include the utilization and activities related to oil and natural gas whether in the second reading, or as a separate set of draft articles. He went on to comment on specific provisions of the draft articles. He welcomed the assertion in article 3 -- sovereignty of aquifer States -- that the aquifer State had sovereignty over the portion of the transboundary aquifer located within its territory. He reiterated Jordan’s position that if an aquifer State did not exercise, or “if it abandoned, its right to utilization of the aquifer, the standard for equitable use by the other aquifer State, or States, was different. Those States should be able to utilize the aquifer without their use being considered inequitable vis-à-vis the other State, if that State was willingly not exercising its right.
His delegation considered article 14 crucial for the protection of groundwaters against planned activities with potentially significant adverse effects. Its application might lead to the taking of precautionary measures before such harm occurred. For the State planning such activity, he said, its judgement on its effect should be based on objective grounds only. Further, the affected State should have the right to initiate consultations with the State who planned the activity, even if the latter did not notify it of its plans.
PARK HEE-KWON ( Republic of Korea) said a move to expand work beyond aquifers to include oil and gas could face opposition from oil and gas-producing States which recognized those resources as property under their sovereign rights. As to the final form of the draft articles on transboundary aquifers, he said he supported a binding instrument in the form of a framework convention that included provisions for non-aquifer States. Provisions on rights and obligations of non-aquifer States were necessary, because the question of groundwaters directly affected only some States, and if there were no real incentives for non-aquifer States, it was likely that only aquifer States would become parties to such an instrument. It would also be wise to formulate a dispute-settlement mechanism in the draft.
He said he was strongly in favour of the Commission’s work on the responsibilities of international organizations; successful completion of that work would be comparable to the Commission’s accomplishments in the Vienna Conventions on the Law of Treaties, which established a single system of interstate treaties, as well as treaties allowing for the participation of international organizations. The final draft articles on State responsibility in 2001 should be viewed in that greater context. Rules on the responsibility of international organizations were essential to establishing a comprehensive framework for the law of international responsibility.
He said the responsibilities of international organizations and State responsibility were the two pillars of international responsibility for internationally wrongful acts; given the uniqueness of international organizations, which possessed independent legal personalities, the elaboration of international responsibilities was, by no means, a simple task. If an act were to be attributed to an international organization, and a State were associated with that act, there needed to be a fundamental review of whether to approach that act as part of the responsibilities of international organizations, or States.
SARAH WILLIAMS ( United Kingdom) urged the Commission to exercise caution in attempting to over-generalize the issues raised by the topic of shared natural resources. Guidelines formulated for some natural resources might not be suitable for extension to other types of natural resources, she said. Moreover, it was essential that the Commission consider the context of the resource in question; the sharing of some natural resources might be complex or sensitive, so as to preclude the formulation of general articles or principles, and require, instead, bilateral or regional arrangements.
On the subject of responsibility of international organizations, she said the United Kingdom had some concerns over how the Commission’s work continued to be modelled closely on the articles on state responsibility; it had cautioned against wholesale application of the articles on state responsibility to international organizations without giving proper consideration to the important differences between States and individual organizations, or allowing for diversity in the types of international organizations and their functions. She urged the Commission to explore the existing practice, and to give detailed thought and careful reflection to the different and complex issues raised by extending the principles of State responsibility to international organizations.
Commenting on some of the articles, she said the United Kingdom had particular concerns with draft article 18 (self-defence), draft article 21 (distress) and draft article 22 (necessity). She felt there was a need for further discussions as to how self-defence would apply in relation to an international organization. Much of the existing discussion in the Commission’s commentary was based on the use of self-defence in peacekeeping operations, but that right arose in many cases from the terms of the mandate given to a peacekeeping force. It was difficult to extrapolate from those specific mandates a wider right that would exist in different circumstances. Moreover as a practical matter, she said, only certain international organizations would ever be in a position to exercise the right of self-defence.
She urged the Commission to consider re-drafting article 28, which should recognize the general rule that a State did not incur international responsibility merely by transferring competence to an international organization. Any exception to that general rule should apply only in the narrowest of circumstances, she said. Similarly, the United Kingdom viewed draft article 29 as having too broad a potential application. She said that the provision should reflect the presumption that a State did not, as a general rule, incur international responsibility for the act of an international organization of which it was a member. She said the Commission should re-visit article 29.
PHANI DASCALOPOULOU-LIVADA ( Greece) said the draft articles on transboundary aquifers should be on an equal footing with the 1997 Convention on international watercourses. Article 1 took account of the need to regulate aquifers in a holistic manner. The sea should be added to the list of potential outlets of an aquifer.
Referring to a threshold of significant harm, she said that, given the fragility of aquifers, instead of inventing far-fetched meanings for the word “significant, the Commission should simply not qualify “harm” at all. As to the general obligation to cooperate, joint mechanisms were so well known and widespread in State practice, as far as transboundary surface waters were concerned, that the Commission should not hesitate to adopt a mandatory provision regarding groundwaters as well. She suggested that States be given two years, instead of the usual one year, to comment on articles 14 through 19.
Turning to the draft on international organizations, she said a clarification was needed in article 25 on aid or assistance in the commission of an illicit act, to the effect that relevant “intention” would be required. She considered the wording in article 28, in cases of transfer of competence to an international organization of international obligations, to be exceedingly wide. Chapter X should contain a provision dealing with the issue of responsibility of member States in case they committed an illicit act by implementing a binding decision of the organization.
JENNIFER McIVER ( New Zealand) said the topic of shared natural resources could only become more important, since underground aquifers represented the overwhelming majority of the world’s freshwater supply and were coming under increased pressure in many parts of the world. New Zealand supported the Special Rapporteur’s approach to the topic, particularly in seeking assistance from hydro-geologists and United Nations Educational, Scientific and Cultural Organization (UNESCO), among others. Managing each transboundary aquifer should, she added, take account of the special features of that individual aquifer and each State’s relationship to it. States must work out arrangements at the regional and subregional levels.
Noting the risk that not enough States would become party to a Convention on the topic, she said that casting the final product as recommendatory principles might be more effective, since an authoritative statement of that kind would be immediately influential at the bilateral and regional levels.
On the responsibility of international organizations, she said New Zealand supported the Commission’s approach of following the scheme of the articles on state responsibility. A State should not be able to make use of an international organization’s separate legal personality to avoid an obligation, and the Commission had made a successful attempt to address that difficult issue. On draft article 29, she said member States normally could not be responsible for the wrongful act of an international organization. However, there were some circumstances in which member States should be held responsible; those circumstances were limited to situations where there had been acceptance or reliance.
MOHD RADZI HARUN ( Malaysia) said he appreciated that the additional option of using agreed standards and methodology other than “harmonized” standards had been used in the draft articles. Malaysia had supported the use of the word “encouraged” instead of “shall take” with regard to the taking of a precautionary approach, as such, an obligation must be subject to the capabilities of the States concerned. Concerning article 18 on exchange of information, he believed protection should be extended to include industrial secrets and intellectual property.
He supported the inclusion of “vital human needs” in article 5 as a special factor to be taken into account in determining what was equitable and reasonable utilization of transboundary aquifers, or aquifer systems. He also supported expanding the scope of article 14 to cover any State, including a non-aquifer State, that had reasonable grounds for believing that a planned activity in its territory could affect a transboundary aquifer and cause an adverse effect on another State, including a non-aquifer State. He further supported the decision not to address the issue of compensation in circumstances where harm resulted despite efforts to prevent such harm; that issue was covered by other rules of international law.
HOSSEIN PANAHIAZAR ( Iran) said that despite some similarities between the responsibilities of international organizations and States, the position and functions of international organizations and States should be differentiated in general. Thus, circumstances precluding wrongful acts of the State and that of the international organization should be distinguished from each other. Within the context of article 17, he said the validity of consent of a State or an international organization should be based on their will and without any pressure or violation of their sovereignty and independence. It was important to determine the limits of consent in an objective manner.
There were inconsistencies in the section on self-defence, he continued. A clear distinction should be made between self-defence and lawful use of force in reasonable implementation of the purposes of a given mission. The article on necessity articulated an overall approach that necessity may not be invoked for precluding wrongfulness, and yet there were ambiguities in some terms in the article. As to the Commission’s question on compensation, Iran believed that when an organization was not in a position to provide compensation to the injured party, the State parties should try to offer the due compensation, taking into account the rules of the organization.
Action on Drafts
The Committee approved the two draft resolutions without a vote.
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