International Law Commission Is Asked to Continue Review of Working Methods, Seek Topics Closer to Present-Day Concerns

27 October 2009
GA/L/3375

International Law Commission Is Asked to Continue Review of Working Methods, Seek Topics Closer to Present-Day Concerns

27 October 2009
General Assembly
GA/L/3375
Department of Public Information • News and Media Division • New York

Sixty-fourth General Assembly

Sixth Committee

16th Meeting (AM)

International Law Commission Is Asked to Continue Review of Working

Methods, Seek Topics Closer to Present-Day Concerns

 

Legal Committee Delegates, Noting ‘Proliferation of Study

Groups’, Suggest Consideration of Environmental ‘Law of the Atmosphere’

As the Sixth Committee (Legal) today continued its consideration of the report of the International Law Commission, with a focus on responsibility of international organizations and other matters, Japan’s representative called on the Commission to take up some aspect of international environmental law so as to carry out its main task of elaborating draft articles towards conventions and to fully engage with the crucial needs of the present-day international community.

He said the Commission’s work on international watercourses and trans‑boundary aquifers was related, but the topic of liability was the last time the Commission dealt with an aspect of environmental law.  The omission was significant at a time of environmental degradation.  State practice and treaty material were plentiful.  The International Court of Justice had taken up significant disputes in areas such as pulp mills and herbicide spraying.

Further, he said, the Commission’s work of clarifying basic principles and rules would be distinct from that of multilateral environmental agreements that were products of governmental negotiation.  A “law of the atmosphere” had been proposed by a new member of the Commission, and it should be taken under consideration.

Calling for the Commission to improve its gender balance in its next election, the speaker for the Netherlands said the Commission should reflect on its selection of topics and consider whether they were ripe for consideration.  As part of its overall review of working methods, the role and function of the Special Rapporteur may also need to be reconsidered.

The Commission’s work was affected by technical and financial difficulties encountered by special rapporteurs in preparing their work, the delegate of Poland said.  He called for a reconsideration of the question of assistance to the rapporteurs and for affording them the opportunity to interact with Government representatives when their reports were considered in the Legal Committee.

In the continued debate on the Commission’s draft articles on responsibility of international organizations, Spain’s delegate said the text was improved both substantively and structurally, and inclusion of the general principle was welcome.  Still, the draft articles did not yet address all the possible relationships between States and international organizations.

The articles were balanced, said the representative of the Russian Federation.  Regardless of limited practice in the area, she said, the Commission had been able to identify and reflect the specifics in the interaction of international organizations.  The definition on rules of the organization should not be diluted.  Clarifications were needed with regard to attribution, reliance on authorization, and linkage between acts of international organizations and States and countermeasures.

Iran’s representative noted the differences between States and international organizations, and said States should be entitled to invoke responsibility independently of each other in the case of injury by an organization.  Determining the priorities among injured parties would be advisable.  Any discussion of “settlement of disputes” clauses should take into account the relevant principles of international law, particularly State sovereign equality and consent to a peaceful-settlement mechanism.

Also speaking today were the representatives of Switzerland, Italy, United Kingdom, Mexico, Hungary, Portugal, Greece, Ireland, India, Indonesia and United States.

The Committee will meet again at 10:00 a.m. tomorrow (Wednesday, 28 October), when consideration of the Law Commission report will continue, moving on to the Commission’s work on reservations to treaties and expulsion of aliens.

Background

The Sixth Committee (Legal) met today to continue its annual consideration of the International Law Commission’s work, with today’s focus on the introductory parts, responsibility of international organizations and other decisions.  (For background see Press Release GA/L/3374.)

Statements

PAUL SEGER ( Switzerland) said that on the question of the conduct of an international organization being attributable to a State, the Commission’s draft articles on this topic were, in his view, comprehensive.  He cited the situation of an organ of an international organization being put at the disposal of a State, and asked when the conduct of such an organ could be attributed to that State.  And he asked, further, when an international organization would be entitled to invoke the responsibility of a State.  It seemed essential that these questions be addressed by analogy and that all the cases considered should be dealt with by the Commission.  As with other questions dealt with, their results could take the form of draft articles, if necessary.

On the topic of internal armed conflict in the relevant draft articles, he noted that such conflict affected implementation of treaties in the same way that international conflict did.  In this regard, the issues concerning armed conflicts needed to be evaluated; the legal regime in the relevant draft articles needed a more restrictive definition than one found in international law, even in the case where a State exercised its right to self-defence during an armed conflict.  He said clarification of this nature would be in keeping with the relevant articles.

ANASTASIA TEZIKOVA ( Russian Federation) said the articles on responsibility of international organizations were balanced, regardless of limited practice in the area.  The Law Commission had been able to identify and reflect the specifics with relation to the interaction of international organizations.  Her written comments with more detail would follow.

She said the scope and use of terms in article 1 and the definitions in article 2 were now appropriate, including with relation to the term “rules of the organization”.  The commentary to article 2, however, should have more information on the substance and nature of the acts being covered.  On instruments that were binding as listed in article 4, she said it was inappropriate to include the Organization for Security and Cooperation in Europe (OSCE) since it did not have the proper legal standing.  The definition on rules of the organization involved should have a balanced and prudent approach; it should not be diluted.  Other areas needing clarification included attribution, reliance on authorization and the linkage between acts of international organizations and States and countermeasures.

With regard to the three questions the Commission invited States to address on the matter, she said the first two, on conduct and consent, were governed by the articles on responsibility of States.  The third question, on invoking the responsibility of States, was not so simple and required further study; this one should be the focus of the Commission’s attention.  The first two questions should be considered from the perspective of situations in which there was no parallel between the articles on State responsibility and those on responsibility of international organizations.

PAOLO GUIDO SPINELLI ( Italy) commended the Commission on focusing on fewer issues in greater depth.  He noted that 300 of the 374 pages in this year’s report dealt with two topics, which he believed engendered the considerable progress made by the Commission.  He urged a more uniform approach and standard format in the adoption of “commentaries”, so that a commentary be neither too brief nor too extensive.

He noted that the issue of countermeasures had been addressed extensively.  While countermeasures were seldom taken against international organizations, it did not seem to be a sufficient reason to preclude them.

On the relevant draft articles, he said it would be hard to imagine why a directly-injured international organization could not invoke responsibility in the same way as a directly-injured State.

DANIEL BETHLEHEM ( United Kingdom) said his country had consistently cautioned against a wholesale application of the articles on State responsibility to international organizations without proper consideration of the differences between States and international organizations.  It remained unclear of how some draft of the articles, such as the relevant articles on self-defence, distress and necessity, would be applicable to international organizations.  The Commission had rightly assessed that they were relatively unsupported by significant practice.

On the issue of “effective control,” he said much of the commentary and practice had been based on the participation of Member States in military operations mandated by international organizations.  He questioned if a general rule could be extrapolated from this particular context, and expressed concern that the Commission would be imposing such a rule at the cost of “considering the full factual picture and particular context in which international organizations and their members operate”.

He said the provision requiring that the special characteristics of a particular organization be taken into account when applying the draft articles would ensure that relevant articles would be applied in a flexible manner, and allow for the differences and distinctions of the various international organizations.

JOEL HERNANDEZ ( Mexico) said international organizations played an increasingly active role in the world.  Judgement of their role was critical in formulating rules of conduct between them, so that the rule of law would prevail.  The legal normative system, however, was not solely the province of the Law Commission.  It was also part of the work of other legal bodies, such as the international tribunals, which provided interpretative tools for the Commission’s use in a symbiotic relationship between the Commission’s codification and the case law of tribunal decisions based on the Commission’s work.

The Commission, he said, should make greater use of tribunal interpretative law, and States should provide the Commission with information.  The Commission should also take note of cases of disputes between international organizations as a guideline for its work, particularly with regard to determining the relevant courts and forums for the attribution of wrongdoing so that individuals were not deprived of their rights.

He said he would submit fuller comments in writing but for now, article 4 related to attribution was ambiguous.  The Commission should continue its deliberations by considering that the key element was “effective control” of the act, particularly in situations where there was overlap of jurisdictions.  More consideration should be given to the issue of jurisdictional forums for determining attribution.  As an example, the International Court of Justice dealt only with disputes between States but not between States and international organizations.  Other possible forums should be considered so as to conclude the articles and create an authentic rule of law system that covered all actors on the international stage.

REMIGIUSZ HENCZEL ( Poland) said the adoption of the draft articles on responsibility of international organizations was significant since it finalized the Commission’s work on the crucial problem of international law, that of responsibility for internationally wrongful acts.  However, the commentary needed further clarification since in many instances it did not provide sufficient arguments for full and many-sided evaluations.  Further observations and more detailed remarks would follow in writing.

He said the Commission was, for a number of reasons, losing momentum on some issues before it, mainly because the special rapporteurs lacked sufficient information from Governments.  They were unable to identify enough State practices necessary for further codification.  The Commission itself had become passive in requesting such information and opinions.  The Commission should reactivate its former practice of formulating questions on as many topics as possible.

He added that the technical and financial difficulties met by special rapporteurs in preparing their work affected the quality of the work of the entire Commission.  The question of necessary assistance to special rapporteurs should be reconsidered.  They should be afforded the opportunity to be present and to interact with Government representatives when their topics were considered in the Legal Committee.

ISTVÁN HORVÁTH ( Hungary) suggested a more careful selection and pragmatic approach to issues by the Law Commission would better address the present concerns of the international community.  Member States should provide better guidance and make a more effective contribution to the Commission’s work, while respecting its independence.

Turning to the relevant draft articles on the responsibility of international organizations, he said that the listed questions deserved further examination by the Commission.  It would be difficult to decide whether these issues could be regulated by analogy, in additional draft articles or other forms.  To this end, he requested that the Commission and its Special Rapporteur prepare a report on these issues.

On the definition of the “rules of the organization”, he said he was glad the expression “and other acts” had been kept in the definition.  However, it was unclear if an international organization had to exercise “effective control” over its agent or organ.  While organizations typically exercised extensive control, some semi-autonomous entities such as the Intergovernmental Panel on Climate Change or the World Food Programme (WFP), although conferring significant power, did not control the conduct, at least not in an “effective” manner, of its agents and organs.  Even though these entities lacked separate international legal personalities, in many respects they functioned similarly to regular international organizations.  Thus the question arose as to whether the conduct of such entities could be considered acts of the “creator organization,” despite the lack of effective control.

He said that even with the significant differences among international organizations, the draft articles should identify and set forth general rules and principles applicable to all organizations.  If not, the draft articles “without any restraint would be very dangerous and could easily turn the whole text into a ‘dead letter’ even before its adoption”.

MIGUEL DE SERPA SOARES ( Portugal) expressed disappointment that the topic “immunity of State officials from foreign criminal jurisdiction” was not to be discussed at the present session.  He spoke of increasing tension within the international law system, notably between the United Nations legal order and other legal orders, such as the one of the European Community.  He said a “growing complexity and dispersion of the international legal order” was reflected in some recent cases, and he cited the Lockerbie matter, among others.

On the topic of “responsibility of international organizations”, he said he wished to underline his previous concerns, specifically regarding the applicability of the principles of State responsibility on the responsibility of international organizations.  He was glad the Commission would study the concerns and Portugal would contribute to the debate.

Turning to the issue of “countermeasures” he stressed the need to distinguish between countermeasures he said the source of the measure and its legal ground, nature and purpose, must be considered.  He noted that, as an example, Security Council sanctions could not be regarded as countermeasures.  In this area, he said, complex questions arose, which could “lead to certain paradoxes”.

HOSSEIN PANAHI AZAR ( Iran) said international organizations were bound to observe all international norms, as well as those of their founding documents.  Any measure taken contrary to those norms was legally void and without binding effect, and this was the circumstance in which the issue of responsibility arose.  Further, when an organization was unable or unwilling to honour its obligations, Member States should take all necessary measures to enable the organization to discharge its duties.

While there were similarities between States and organizations, he went on, there were areas in which the distinctive nature and function of international organizations needed to be duly taken into account.  The articles relating to the “preclusion of wrongfulness” was one of those, since the circumstances that precluded wrongfulness for States would not apply to organizations.  Likewise, the reference to “self-defence” was misleading and should be deleted.  The issue of “countermeasures” should be treated carefully.  The issue of “State responsibility” was very important and a distinction should be made concerning authorization and the lack thereof.  The Commission should also consider the question of “unlawful measures” adopted by organizations under undue influence of members.

He said States should be entitled to invoke responsibility independently of each other, in cases of injury as a result of a wrongful act of an international organization.  Determining the priorities among injured parties would be advisable.  Any discussion of a “settlement of disputes clauses” should take into account the relevant principles of international law, particularly State sovereign equality and consent to a peaceful-settlement mechanism.

LIESBETH LIJNZAAD ( Netherlands) noted the three questions posed by the Law Commission in its report to the Sixth Committee (see Background in Press Release GA/L/3374) about international responsibility between States and international organizations, and said the basic choice was whether or not to address these questions expressly.  She said that only if new questions emerged related to the topic, should the Commission examine them.  However, no new articles dealing with these three questions should be added to the existing set of the 66 draft articles on the issue.

Observing that the Law Commission planned to debate its working methods, she said that was very timely.  On the election of its members, she expressed interest in future steps towards improving the gender balance.  She favoured the plans to hold a debate on working methods since in her view the tangible results from the Commission’s last session were disappointing.  The Commission should reflect on the selection of topics, and whether such topics were ripe for its consideration, and the role and function of the Special Rapporteur may need reconsideration.

PHANI DASCALOPOULOU-LIVADA ( Greece) said the articles on responsibility of international organizations were successful, but there were some areas where the commentaries were unclear.  For example, article 6 referring to attribution of conduct should make clear that the attribution resided with the organization exercising ultimate control and not with the State in control of operations.

On the questions the Commission had posed, she said the first -- relating to conduct -- should be viewed in context of the practice of the international organization.  To that end, it might be useful to take into consideration the practice of the United Nations in lending or providing an organ for the administration of a territory.  The Commission should address the issue through draft articles.

The question of consent should be considered in light of the articles on State responsibility.  Taken together, they set out the principle that where an internationally-wrongful act was committed by a State towards an international organization, that State was to be held internationally responsible for such an act, but where there was consent by the organization to such an act, this was circumstance precluding wrongfulness and able to be invoked by the State.

On the question regarding invocation of responsibility, she said the question could be determined only based on the organization’s rules and was beyond the scope of the Commission’s work.  Draft article 39 on reparation should expressly clarify that members of an international organization did not assume subsidiary responsibility to provide reparation.

JAMES KINGSTON ( Ireland), on the topic of “responsibility of international organizations” said the principle of exhaustion of remedies in the relevant article was appropriate.  However, he said that the criteria of any “available and effective” existing remedy could be contentious.  Issues could also arise regarding competing remedies and/or jurisdiction between specialized regimes of international law and associated tribunals.

He said the topic of countermeasures was particularly sensitive, and he supported the Special Rapporteur’s report stating that countermeasures should not be a primary means of ensuring compliance of Member States.  He suggested that the Commission also address the possible situation where an international organization might not have a dispute resolution mechanism, and/or where their constitutive agreements or rules either prohibited countermeasures or were silent.

MASATAKA OKANO ( Japan) said the Commission’s future work needed to be addressed since the Commission had drifted from the mainstream of international law and had moved to rather shallow and narrow waters.  It had also not been fully engaged with the crucial needs of the present-day international community.  The proliferation of studies may be interesting but the Commission’s main task was to elaborate draft articles that could become the bases for conventions.

The Commission should take up some aspect of international environmental law, he stated.  There was an abundance of State practice and treaty material on the matter and significant disputes had been submitted to the International Court of Justice, including on pulp mills and aerial-herbicide spraying.  The draft articles on international watercourse and trans-boundary aquifers contained relevant provisions, but the topic of liability was the last time the Commission had taken up an aspect of environmental law.  That was a significant omission at a time of environmental degradation.  The Commission’s work would be fundamentally different from that conducted in the Conferences of Parties to multilateral environmental agreements since the Commission was not an organ for governmental negotiation.  Rather, it would clarify and re-define basic principles and rules.  The Commission should consider the proposal of its recently-elected new Member, Professor Shinya Murase, regarding a law of the atmosphere.

On the responsibility of international organizations, he said that striving for parallels with the articles on State responsibility had resulted in some impracticality.  Most relevant acts of international organizations, for example, constituted only unlawful acts or crimes under domestic law and thus fell outside the scope of the articles on international organizations.  The right of self‑defence was also not applicable.  And finally, before more draft articles were articulated, consideration should be given to how often some of the situations to be covered would actually arise in practice.

T.K.S. ELANGOVAN (India) said disputes between an international organization and its members on the matter of countermeasures should be settled in accordance to the rules and internal procedures of the organization.  Further, the rules of the organization must determine its decision on taking countermeasures against its members or being the target of countermeasures by those members.  “Only where the relevant rules of the organization expressly provide, should the taking of countermeasures by an organization be considered,” he stated.  In light of the uncertainty of the legal regime, and the risk of abuse inherent in the concept, he called for a cautious approach.

He said the obligations of Member States towards the organization should be dealt with under its established constituent instrument.  He said that the relevant article addressing this should therefore be redrafted to ensure that the organization be obligated to make necessary efforts towards approaching its members in order to effectively fulfil its obligations.

ARIF HAVAS OEGROSENO (Indonesia) said he would submit detailed comments later in writing, and would now address the three questions in the Commission’s report.  With regard to conduct of an organ placed at a State’s disposal, the Commission needed to conduct further studies on examples and practices to determine the role of effective control in a particular situation between an international organization and a State.  On the question of consent and the preclusion of wrongfulness, consideration should be given to addressing issues such as attribution in a situation, where a State went beyond the mandate, the question of excessive measures and whether acts were carried out in a lawful manner.

On the question of an international organization invoking State responsibility, he said there was great diversity in the objectives and aims of international organizations under their statutes.  Many of them specialized in the area of assuring compliance to agreements, meaning that their main function was to invoke the responsibility of Member States.  Such invocation was often accompanied by sanctions directed against States from a quasi-judicial panel.  In other situations, the organization had the right to invoke State responsibility with respect to obligations towards the international community, provided the best interests of the international community were safeguarded.  Those elements should be taken into consideration.

CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) noted the improved text on international responsibility from both a substantive and a structural point of view, and said she welcomed the inclusion of the general principles.  However, as exemplified by the three questions posed by the Commission, there still was not an adequate response in the draft articles to all the possible relationships between a State and an international organization in regards to responsibilities.  Further, these questions were rooted in the sphere of State responsibility, which still had a bearing on the international organization’s responsibility.

Regarding the attribution of conduct of an agent or organ at the disposal of a State, she stated that this was an unusual hypothesis, but it could arise in certain areas, such as programmes of cooperation or assistance programmes for State reconstruction.  The answer needed to take into account various factors such as the level of control that the State could exercise over the agent in question, or the nature and the content of acts by the staff of the organization.  She believed the draft articles on State responsibility had useful elements, which could be used to address the question.  She also noted that the response to the questions being posed would have significant consequence on the manner in which international organizations related to the concept of responsibility and to being held responsible.  In order to avoid gaps, she said, the Commission would need to analyse and comment on these questions during its second reading.

TODD BUCHWALD ( United States) said the Commission’s approach to the relevant articles on responsibility of international organization relied too heavily on the articles on State responsibility and did not take into account the differences between States and international organizations, or the wide differences among international organizations.  The provisions, he observed, applied only to a small fraction of all international organizations.

He noted that in the example of self-defence, the relevant article could be applied only to the acts of those international organizations that administered a territory or deployed armed forces.  “We question the utility of including an article of such limited applicability,” he said.  Further, he noted that the relevant draft articles also included provisions that would rarely, if ever, be applicable for the vast majority of international organizations.

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For information media • not an official record
For information media. Not an official record.