Responsibility of International Organizations Is Focus of Legal Committee at Start of Annual Review of Law Commission Activities
Responsibility of International Organizations Is Focus of Legal Committee at Start of Annual Review of Law Commission Activities
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
15th Meeting (AM)
RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS IS FOCUS OF LEGAL COMMITTEE
AT START OF ANNUAL REVIEW OF LAW COMMISSION ACTIVITIES
Role of Special Rapporteurs among Other Topics in Wide-Ranging Agenda
As the Sixth Committee (Legal) began its annual review of the report of the International Law Commission today, the Committee Chairman, Mourad Benmehidi ( Algeria), welcomed the presence of legal advisers from numerous capitals, saying it would “enrich our debate on the report”. The ensuing initial discussion on the Commission’s report addressed the role of its Special Rapporteurs, as well as a number of questions regarding responsibility and conduct of international organizations in relationship to their member States.
Ernest Petrič ( Slovenia), Chairman of the International Law Commission, introduced its report. He said the year had been organizationally challenging, yet highly productive. He noted the completion of a set of 66 draft articles, and accompanied commentaries, on the responsibility of international organizations.
He said draft guidelines on “reservations to treaties”, were almost complete, and there had been substantive discussion on “expulsion of aliens” and “protection of persons in the event of disasters”.
Because the role of the Special Rapporteur “served as a fulcrum” of the Commission’s work, he not only supported the restoration of their honorariums, but stressed the need to facilitate interactions between delegations and Special Rapporteurs during different stages of the consideration of a particular topic.
Information received from Governments, especially as the Commission expanded its scope into “non-traditional” issues and topics, was of utmost importance. For the Commission to work towards progressive development and codification of international law, a broader representation of the United Nations membership was crucial to the working methods of the Commission’s.
Patricia O’Brien, United Nations Legal Counsel and Under-Secretary-General of the Legal Affairs Office, introduced the Secretary-General’s report on the Law Commission Special Rapporteurs, and emphasized that the issue of assistance to Special Rapporteurs was a crucial aspect of the Commission’s functioning and that they acted as “an intellectual pillar around which a topic evolved”.
Some of the activities of the Commission, an independent body of legal experts in international law and with a role distinct from the Secretariat, were beyond the type of assistance the Secretariat would provide. As a consequence of the requirement of independence, the Special Rapporteurs often carried out their tasks separately from other professional responsibilities, and often at the expense of their own time and resources. With recent limitations on budgetary growth in both the United Nations as well as the Commission, Ms. O’Brien said that the Secretary-General’s report provided the Committee with the relevant context in which to proceed further.
Speaking for the Rio Group of countries, the representative of Mexico said that in order to encourage inclusion of more States in the Commission’s work, questionnaires from the Special Rapporteurs needed to focus on the main aspects of the topic under consideration, and be drafted in a way that engendered responses in a timely manner. Budgetary constraints also needed to be addressed, as they limited the availability of Special Rapporteur to delegates during the week their reports were being considered by the Committee.
Singapore’s representative said that with the proliferation of international organizations came the challenge of identifying their differences and crafting legal rules to govern their actions, including wrongful acts. A basic principle should hold that States should not be able to circumvent international obligations by “outsourcing” liability and vice versa.
The delegate of South Africa pointed out that an international organization had an international legal “personality” which implied it could sue and be sued. It was important, then, that in the final product of the draft articles on this topic the responsibility of the States not be “blurred” with that of the organization. He also noted a tendency where individual States used international organizations as a means to legitimize conduct otherwise not supported by the international community.
The representative of Denmark spoke on behalf of the Nordic countries. Speaking in their national capacity were the representatives of Austria, Belarus, China, Germany, El Salvador, Czech Republic, Romania, and France.
The Committee will meet again at 10 a.m., tomorrow, Tuesday, 27 October to continue its debate on the International Law Commission report.
The Sixth Committee (Legal) met today to begin its annual consideration of the International Law Commission’s work.
Before the Committee is the report of the International Law Commission (document A/64/10) on the proceedings of its sixty-first session ( Geneva, 4 May to 5 June and 6 July to 7 August). It states that for its consideration of the topic “responsibility of international organizations”, the Commission had before it a report of the Special Rapporteur containing views of States and international organizations on the draft articles that had been made available, along with certain amendments. Outstanding issues were also addressed in that report, such as general provisions and the place of a chapter on State responsibility in connection with an act of an international organization. The amendments and six draft articles were referred to the drafting committee. Ultimately, 66 draft articles and commentaries were adopted and transmitted to relevant parties for comment.
For its consideration of “reservations to treaties”, the report says the Commission considered the fourteenth report of the Special Rapporteur dealing with outstanding issues in the procedure for formulating interpretative declarations, the permissibility of reactions to reservations, interpretative declarations, and reactions to them. Two draft guidelines were referred to the drafting committee on the form and communication of interpretative declarations, along with seven draft guidelines on the permissibility of reactions to reservations and the permissibility of interpretative declarations and reactions thereto. A main issue was the existence of conditions for permissibility of objections to reservations, in particular with respect to objections with “intermediate effect”.
In addition on the item, the report says the Commission adopted 32 draft guidelines, together with commentaries. Its consideration of the matter was based on guidelines referred earlier.
For its consideration of “expulsion of aliens”, the report says the Committee considered the Special Rapporteur’s fifth report on protection of human rights of persons who had been or were being expelled. The report also contained revised draft articles on the matter and a new draft work plan for restructuring the articles. It was decided to postpone consideration of the articles until the Commission’s next session.
On “protection of persons in the event of disasters”, the Commission had before it the second part of the Special Rapporteur’s report containing three draft articles related to scope as well as principles such as cooperation. The articles were referred to the drafting committee, which articulated five draft articles relating to scope, purpose, definition of disaster, relationship with international humanitarian law and the duty to cooperate. The Commission took note of the articles and commentaries. They were to be considered at the Commission’s next session.
The topic of “shared natural resources” focused on a working group report related to oil and gas for a consideration of the feasibility of the Commission working on aspects of the topic. Based on the outcome of a study, it was decided that work on gas and oil should be deferred until 2010. In the meantime, the 2007 questionnaire on the matter would continue to be circulated to Governments for views.
A Working Group was established to consider the question of the “obligation to extradite or prosecute”, the report states, adding that a general framework was established for issues that might need to be addressed. Emphasis was to be placed on taking national legislation and decisions into account, as well as on possibly utilizing the work of academic institutions or non-governmental organizations. Work would not include detailed consideration of extradition law or principles of international criminal law.
For its consideration of the “most-favoured-nation clause”, the report says the Commission considered a framework established by its Study Group to guide the work. Based on a preliminary assessment of the 1978 draft articles, eight papers on aspects of the question were to be prepared. Among considerations were such issues as the nature, origins and development of the clause, changes resulting from the context of how the clauses had been used, the body of practice and jurisprudence currently available and newly emerging issues when the clauses had been applied in investment agreements.
A Study Group on “treaties over time” was established and issues to be covered were identified, the report says. Also established was the scope of work, with a course of action agreed upon for starting consideration of the topic. A report was being prepared on how the International Court of Justice and other international courts and tribunals addressed the matter, including from a regional perspective.
In addition to that report, the Committee has before it a report by the Secretary-General on assistance to special rapporteurs of the International Law Commission (document A/64/283). It reaffirms the role of the special rapporteurs in the work of the Commission and in its ability to carry out its statutory responsibilities. It also recalls that the General Assembly had recognized the unique responsibility placed on the rapporteurs by authorizing the exceptional payment of research project grants to them in the form of honorariums. The report further says that the decision to pay honorariums still had resonance and the question was worthy of consideration. However, any decision regarding the matter would have to be taken in context of the Assembly’s earlier decision (document A/RES/56/272).
As customary in its report, the Commission includes specific issues on which comments were of particular interest.
The first of these is “responsibility of international organizations” and areas not expressly covered by either the articles on State responsibility of internationally wrongful acts or in the draft articles on the responsibility of international organizations. In that regard, the Commission asked States to consider three questions: when the conduct of an organ of an international organization, which had been placed at the disposal of a State, could be attributable to the State; when the consent of an organization to the commission of an act by a State would be a circumstance that would preclude State wrongfulness; and when an international organization was entitled to invoke the responsibility of a State.
The second issue on which the Commission sought information from Governments was with regard to expulsions. The Commission asked for States to provide data on provisions in their national legislation on aspects of the question such as: the grounds for expulsion; the conditions and durations of custody or detention; rights of return to the expelling State; and the nature of relations between the expelling State and transit States.
The third area in which information from States was sought was in regard to shared natural resources and the 2007 questionnaire that had been sent to States asking them to report on treaties or other arrangements they had entered into in relation to oil and gas. In its 2008 session, the Commission asked for the questionnaire to be re-circulated and for States to provide views, including on whether the Commission should address the subject.
Remarks by Committee Chairman
MOURAD BENMEHIDI ( Algeria), Chairman of the Sixth Committee, welcomed the Chairman of the International Law Commission, and noted that the beginning of the debate on the International Law Commission report coincided with the beginning of the International Law Week. With greetings to Legal Advisers from capitals, he stated that their presence would “enrich our debate on the report”.
Introduction of International Law Commission Report
ERNEST PETRIČ ( Slovenia), Chairman of the International Law Commission, said that although this year was organizationally challenging, the Commission had a productive session, with the completion of a set of 66 draft articles and accompanied commentaries on the responsibility of international organizations. In his introduction to chapters I through IV and chapter XIII, he noted that the Commission was also nearing completion of draft guidelines on “reservations to treaties,” and had held substantive discussion on “expulsion of aliens” and “protection of persons in the event of disasters”.
He said the Working Groups had also advanced their work in the areas of “shared natural resources” (on the question of oil and gas) and “the obligation to extradite”. The Study Group began preliminary discussions on the topics of “the most-favoured-nation clause”, and “treaties over time”. He noted, however, that the Commission had been unable in this present session to address “immunity of State officials from foreign criminal jurisdiction”.
He said it could not be emphasized enough how much the Commission valued the information that it received from Governments. As the Commission expanded into “non-traditional” topics, a broader representation of the United Nations membership was essential in the Commission’s working methods towards the progressive development of international law and its codification. Further, he said, the crucial role of the special rapporteur “served as a fulcrum” around which the Commission’s work on a topic revolved. The Commission supported the restoration of honorariums accorded to the special rapporteurs in their role in the Commission. He stressed the need to facilitate interactions between delegations and special rapporteurs at various stages in the consideration of a particular topic.
He recalled that in its efforts to broaden its cooperative endeavours this year, the Commission had held a joint meeting, including a series of panel discussions and proceedings, with legal advisers of international organizations within the United Nations system. He thanked Governments for the support received by the International Law Seminar, a programme of scholarship, dissemination and appreciation of international law with which the Commission was closely involved. The Gilberto Amado memorial lectures series and the monitoring of the trust fund and activities of the Yearbook of the Commission were further examples of the Commission’s activities to expand and strengthen its endeavours. The annual visit of the President of the International Court of Justice had now become a “customary enriching encounter”, exploring links between the Commission and the Court in the progressive development of international law and its codification.
Commending the work of the Codification Division of the Office of Legal Affairs, he said its substantive, procedural and technical servicing remained “indispensable” in the work of the Commission, and he thanked the Secretariat for its involvement in various facets of the Commission’s work, particularly in research projects and preparation of memorandums.
He reviewed the substantive chapters of the Commission’s report, topic by topic, describing the status of the consideration of each.
Introduction of Report on Special Rapporteurs
PATRICIA O’BRIEN, United Nations Legal Counsel and Under-Secretary-General of the Legal Affairs Office, introduced the Secretary-General’s report on the Law Commission special rapporteurs. She said the consideration of the Commission’s report had been the high watermark of the Legal Committee for 60 years. The question of assistance to special rapporteurs was a crucial aspect of the Commission’s functioning. She noted that the Secretary-General’s report referred to the central role played by special rapporteurs in the work of the Law Commission, acting as “an intellectual pillar around which a topic evolved”. The Secretariat provided two interconnected levels of assistance in substantive servicing -- first through the assistance provided to the Commission as a whole, and then the assistance reserved for individual rapporteurs. The synergy between the work of the Secretariat and that of the Commission was based on the fact that studies and research projects carried out by the Codification Division were part and parcel of the Commission’s work and, as such, constituted an indispensable contribution to that work.
The challenges encountered by the rapporteurs included an institutional one, she said. The Commission was an independent body of legal experts in international law and had a role that was distinct from the Secretariat. Some of the Commission’s activities were beyond the type of assistance the Secretariat would provide. Those activities called for the intellectual stamp of authority of the rapporteur and the collective imprimatur of the Commission as a whole. A second challenge derived from the first, and involved the time and resources at the rapporteur’s disposal beyond the Commission’s session. As a consequence of the requirement of independence, they often carried out their tasks separately from other professional responsibilities, often at the expense of their own time and resources.
She said the Assembly had recognized the unique role of the special rapporteurs by authorizing the payment of research grants to them on an exceptional basis, she said. During the past several bienniums, however, limitations on budgetary growth had affected the United Nations, as well as the Commission. The report laid out the issues involved and provided the Committee with the relevant context in which to proceed further.
THOMAS WINKLER (Denmark), speaking for the Nordic countries, said he commended the Commission’s close cooperation with international organizations and States in collecting information, in order to have a substantial basis on which to codify and develop the work relating to rules of international organizations. The Commission’s work must be firmly based in actual practice and the views of States. The Nordic countries would provide written comments on the draft articles by 1 January 2011. However, some aspects of article 6 (related to conduct of organs or agents placed by States at the disposal of an international organization) needed to be addressed. A case involving a 2007 decision of the European Court of Human Rights with regard to Kosovo could prove to be a useful reference as the Commission.
He said the Commission should consider allowing for a broader functional scope in the commentary to article 6, to take into account the variety of types of personnel and equipment States may pledge. In situations where civilian or military personnel and equipment were pledged as contributions to international peace operations under unified command and control, perhaps it could additionally be considered that in principle the international organization retained ultimate authority and control over operational matters, while lawfully having delegated certain powers. That could have consequences for organizations such as the United Nations. There must be clarity to prevent and repress acts that were wrongful under international law. The responsibility of an international organization must be limited in the extent of its effective command operational control, and must not be based merely on a criterion of ultimate authority and control.
Finally, he said that article 16 related to decisions, authorization and recommendations presented some concern in suggesting that recommendations by international organizations may give rise to international responsibility. The extent of the article was not entirely clear. Certain international organizations could adopt resolutions of a non-binding nature, which could be interpreted as recommendations irrespective of drafting conditions and sufficient legal considerations. Unacceptable consequences could arise from majority rules based on States present and voting. Responsibility of States for internationally wrongful acts must remain intact.
JOEL HERNÁNDEZ GARCÍA (Mexico), speaking for the Rio Group of countries, noted that the work of the special rapporteurs and members of the International Law Commission depended on doctrinal materials, jurisprudence and evidence of State practice. Thus, these contributions were essential in the “fluid interaction” between the Commission and Member States, and were critical to the success of the Commission’s work. He urged that strong support be offered towards this end.
The relationship between Member States and the Commission could be enhanced, he said, if there was a focus on improved communication between the special rapporteurs. In that regard, he noted that the questionnaires from the special rapporteurs should focus on the main aspects of the topic under consideration; they should be drafted in a way that engendered responses and input in a timely manner. This would encourage inclusion of more States in the discussions of the Commission’s work.
He said strengthening of contacts and consultations between State representatives and special rapporteurs would also benefit the Commission’s relationship to States. Because of budgetary constraints, only the Chair of the Commission and one or two rapporteurs were able to attend the Committee’s meetings. The full participation of special rapporteurs, and their availability to meet informally with delegates during the week their reports were being considered by the Committee, would also allow for a stronger relationship between States and the Commission.
FERDINAND TRAUTTMANSDORFF ( Austria) said the Commission should give a higher priority to the topic “immunity of State official from foreign criminal jurisdiction”, a subject of great interest in the international community. On the topic of “responsibility of international organization”, he said the abstract character of some of the draft articles did not address fully the different degrees of powers transferred to organs of international organizations, different kinds of legal effects of decisions of such organs towards Members and third States, and the different degrees of influence Member States may have on decision-making of various international organizations.
He raised concerns on some articles, such as -– among others -- the conduct of an international organization “placed at the disposal of a State”, the consent given by an international organization to the commission of a given act by a State, and the competence of international organizations to invoke the responsibility. He said there should be further study of the relationship of responsibilities between States and international organizations, and said he welcomed the Commission’s efforts to investigate this issue in a more detailed and structured manner.
ANDREI POPKOV ( Belarus) said he supported the general structure of the draft articles on “responsibility of international organizations”, but the scope could be expanded to address specific aspects of State responsibility towards international organizations. States and organizations should, as a rule, be on an equal footing with regard to responsibility for internationally wrongful acts. Article 39 related to reparations could be read as relating to a subsidiary liability of States. It should be re-worded to limit the scope of State obligations and strengthened international organizations to fulfil obligations.
He said article 20 relating to self-defence could be deleted in light of the self-defence notion in international law. The inclusion of article 24 on “necessity” as a ground for precluding the wrongfulness of an act was doubtful. With regard to consent and the preclusion of the wrongfulness of a State’s act, the presumption should be based on the whether consent been given explicitly and without coercion, and provided that no serious injury had resulted. The conceptual problems of obligations and responsibility as included in article 48 should be given further consideration. The situation of an entity of an organization being placed at the disposal of a State should be regulated by analogy with similar articles on State responsibility.
DUAN JIELONG ( China) noted that the relevant content of the draft articles on State responsibility were still mainly based on the practice of the United Nations and the European Union. In light of the diversity of international organizations, further in-depth study was needed that incorporated the differences of international organizations and States, and the different relations between international organizations and States other than the United Nations and European Union. He referred to recent occurrences of non-State entities being able to join certain international organizations together with States. His delegation was of the view that the definition of “international organization” in the relevant 1986 Vienna Convention on the Law of Treaties served the purpose of this topic.”
On the issue of countermeasure articles, he said there had been controversy on whether or not countermeasures were to be introduced into the regime of responsibility of international organizations. He said that the introduction of such a concept would run counter to the function assumed by international organizations. On the relationship between responsibility of international organizations and that of their member States, he said that the relevant provisions were not clear, and he questioned whether in the case of a wrongful act, responsibility would be divided between the organization and its member State. Further study and clarification in the relevant draft articles and commentaries was needed.
SUSANNE WASUM-RAINER ( Germany) said the articles on responsibility of States and of international organizations were complementary and the two together would become important cornerstones of international law. The articles on State responsibility had guided jurisprudence in her country. The European Court of Human Rights had made ample reference to the rule concerning attribution. On the question of State responsibility in connection with an act of an international organization, her country had already rejected, in writing, the general rule of State responsibility merely because of its membership in an organization. The new draft articles 57-62 regarding aspects of the relationship between responsibility of organizations and States were welcome since the articles on State responsibility had deliberately omitted the question.
Turning to questions of particular concern to the Commission, she said it was conceivable that responsibility for the conduct of an organization’s subsidiary could be attributed to a State if the latter exercised effective control. An analogy to article 6 relating to that matter should be drawn. With regard to the preclusion of wrongfulness, consideration should be given to the nature of the rule that would be violated without the consent. If it was protecting disposable rights of the organization, wrongfulness seemed to be precluded but if rights of others were being protected, wrongfulness could not be precluded. Finally, with regard to conditions under which an international organization was entitled to invoke State responsibility, perhaps a separate draft article should be adopted for endorsement by the General Assembly.
MANUEL MONTECINO GIRALT ( El Salvador) recognized and commended the work of the special rapporteurs and their important role in the report of the International Law Commission. To this end, he called for a strong relationship between the Commission and the Committee, so that crucial exchanges of information were possible.
He said his Government, under the new leadership of President Mauricio Funes, was focused on enhancing its relationship to the international community and was now participating in international pacts that previously El Salvador had not been party to. For the codification and progression of international law and the Commission’s work, he urged enhanced dialogue and cooperation.
JAROSLAV HORÁK ( Czech Republic) discussed the question of when the conduct of the subsidiary of an international organization put at the disposal of a State is attributable to the State. He said the solution was to respect the separate legal personalities of the organization and its State, on the understanding that in some cases it may be necessary to pierce the “corporate veil” of the organization. However, a State “implanting” an act of an international organization would incur responsibility only in certain cases, such as if the State exceeded the scope of conduct of the organization, manifestly exceeded the organization’s authority or was in serous breach of its “higher law” obligations. In any event, he added, a sweeping attribution of responsibility to all States of an international organization was not desirable. States could incur responsibility under different rules depending on circumstances.
With regard to consent and precluding wrongfulness, he said a valid consent given by an international organization to the performance of a certain act by the State precluded wrongfulness of the State’s act, provided that the consent was within the limits of the organization’s authority, the State acted strictly within the limits of the consent and the act did not conflict with a “higher law” norm that allowed no exceptions. On the issue of an international organization invoking the responsibility of a State, he said the International Court of Justice had ruled in a case concerning reparation for injuries suffered in the service of the United Nations that an international organization was indeed entitled to bring a claim against the responsible State. However, account should be taken of the fact that questions involving relations between organizations and States were so complex that it was not sufficient to rely on analogies between the articles from one to the other. The Commission should address the questions explicitly and draft articles following the same form as on State responsibility.
COSMIN DINESCU ( Romania) noted the Commission’s work on the “delicate” issues included in its report, and commended both the constant update of the website of the Commission and the work of this year’s International Law Seminar. On the relationship of international organizations, he said it was important to recognize the different nature, diversity and different rules of each international organization; thus, to encapsulate all rules on such responsibilities in a single text would be difficult.
He suggested the definitions of “rules of organizations” and “agent” be better placed under article 2, paragraph 2 of the text, and called for refinements of the wording in the draft article 63 before it be given further consideration. The similarities and differences between State responsibility and responsibility of international organizations, and the diversity of these organizations, were of crucial importance. He urged that the recommendations and practices of Member States and international organizations be taken equally into account in future work on this topic.
EDWIGE BELLIARD ( France), on the responsibility of international organizations, noted the issue of countermeasures taken by an international organization, as referred to in article 21. She said the responsibility of a State with regard to an international organization, as defined in draft article 60 seemed to be seeking to avoid obligations, which was perhaps a deviation from the usual consideration on the matter.
She said the commentary on article 60 was weak in suggesting that the existence of a specific “intention to circumvent” was not required and could be inferred. That brought up questions of jurisdiction and a consideration that an act in principle could invoke the responsibility of a Member State. She added that the scope of the article on legitimate self-defence seemed doubtful and the degree that the scope of which legitimate defence could be invoked was questionable. The provisions in articles 62-64 were similar to the 2001 articles on State responsibility for internationally illegal acts.
On the three questions posed in the report on the responsibility of international organization, she said the attribution of the conduct of an organization’s subsidiary body made available to a State could be resolved on the basis of the 2001 articles. On the third question, consideration should be given in the context of the judgment of the International Court of Justice related to reparation to States that had made pledges to the United Nations; this had ultimately linked the question with State rights to diplomatic protection. The work should eventually be finalized in the form of articles on the responsibility of international organizations.
THEMBILE JOYINI ( South Africa) said he commended the inclusion of the topic “immunity of State officials from foreign criminal jurisdiction” in the Commission’s programme of work. This issue was of particular importance in light of the recent debate on universal jurisdiction, and he expressed concerns at the scope of the matter and welcomed the views of the Commission on the issue. The question arose as to whether a foreign jurisdiction could arrest a State official enjoying immunity pursuant to an arrest warrant from an international tribunal.
Turning to the responsibility of international organizations, he noted that in terms of international law, such an organization had an international “legal personality”. This implied that it could sue and be sued. It was important, then, that in the final product of the draft articles on this topic, the responsibility of States, and that of the organization, not be “blurred”.
Individual States, he observed, tended to use international organizations as a means to legitimize conduct that otherwise would not be supported politically or by the international community. Therefore a heavy obligation would be placed on member States of an international organization to resist the more powerful members when asked to support actions inconsistent with the principles of the organization. In this regard, the relevant articles could encourage States to be more vigilant when being pressured to depart from the collective interest of the members of the organization.
LIONEL YEE ( Singapore) said an increasing level of State-to-State interaction took place nowadays in the context of international organizations. These included regional organizations, such as the Association of South-East Asian Nations (ASEAN), to which his country belonged. The ASEAN charter was adopted just last year, to rationalize frameworks and processes, as well to establish new ones to support the increasing diversity and complexity of activities. The proliferation of international organizations presented the two-fold challenge of identifying their differences and of crafting legal rules to govern their actions, including wrongful acts.
He said draft articles 16 and 60 on the responsibility of international organizations were of particular relevance -- the first dealing with the responsibility of an international organization for an act by a member State or another international organization, and the other concerning the analogous situation of a State’s responsibility for an act of the international organization. Those two articles and their commentaries addressed the difficult conceptual problems presented by the interface between States, or the “principal”, and international organizations, their “agent”.
The basic principle, he added, should hold that States should not be able to circumvent international obligations by “outsourcing” liability and vice versa. The articles and commentaries were particularly helpful since there was little previous State practice to go on, however much the Commission had based its work on relevant regional jurisprudence. The work was a true instance of the Commission’s progressive development of international law.
Continuing, he said it may be worthwhile to elaborate further on what the circumstances of “circumvention” of State responsibility and “seeking to avoid compliance” might be; this would assist in the application of articles 16 and 60. It would also help to clarify the requirement of “causality” in article 16 between the authorization or recommendation of the international organization, and the act of the State member or other international organization in question.
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