LEGAL COMMITTEE CONSIDERS HOW TO ATTRIBUTE RESPONSIBILITY FOR WRONGFUL ACTS OF INTERNATIONAL ORGANIZATIONS
| Press Release GA/L/3239 |
Fifty-eighth General Assembly
Sixth Committee
15th Meeting (AM)
LEGAL COMMITTEE CONSIDERS HOW TO ATTRIBUTE RESPONSIBILITY
FOR WRONGFUL ACTS OF INTERNATIONAL ORGANIZATIONS
Debate on Questions Put by Law Commission; Actions
During UN Peacekeeping Operations among Issues Raised
The question of attributing responsibility for wrongful international acts was the focus of debate this morning as the Sixth Committee (Legal) continued its consideration of the International Law Commission’s report with a focus on responsibilities of international organizations.
The Committee was considering three questions the Commission had asked governments to address. It would take up the question of attribution next year following its adoption of three articles on scope, use of terms and general principles. The questions were: should a general rule on attribution contain a reference to “rules” of an organization; did rules as defined in the 1986 Vienna Convention on the Law of Treaties suffice; and to what extent were peacekeeping forces responsible for their actions and to what extent was the United Nations?
Canada’s representative said responsibility for conduct on peacekeeping missions would depend on the circumstances. If the persons involved were experts, responsibility for their actions would be attributable to the United Nations by terms of the 1946 Convention on Privileges and Immunities of the United Nations. The case of national contingents acting on behalf of a sending State would be a different scenario. A key consideration would be the extent to which the conduct of individuals was controlled by the United Nations.
The representative of the United States said the Commission should focus on determining how attribution issues had been addressed in the past and how States, international organizations and judicial and arbitral tribunals were dealing with them now. On peacekeeping, he said a wide range of activities were involved under a wide range of authorities and mandates. The Commission should thoroughly assess the full range of practice before preparing draft articles.
Spain’s representative said the work on responsibility of international organizations was an outgrowth of work on State responsibility. In that, States could be actors or victims. The fact that an international organization could be the victim of a State was not yet clear in the articles.
Also speaking were the representatives of Gabon, United Kingdom, Greece, Chile, Israel, Argentina, Portugal, Russian Federation and Belarus.
The Committee will meet again at 10 a.m. tomorrow, 29 October, when it will begin considering chapters V (diplomatic immunity) and VI (international liability for injurious consequences arising out of acts not prohibited by international law) of the International Law Commission’s report.
Background
The Sixth Committee (Legal) met this morning to continue its consideration of the International Law Commission’s annual report with a focus on the responsibility of international organizations. (For background, see Press Release GA/L/3238 of 27 October.)
Statements
COLLEEN SWORDS (Canada) recalled the questions the International Law Commission had asked governments to address. On whether a general rule on attribution should contain a reference to the “rules of the organization”, she said such a reference may be necessary when the organs or equivalents referred to were those of an international organization. The definition of “rules” as it appeared in the 1968 Vienna Convention on Treaties was adequate. However, other issues may have to be addressed to cover the range of cases, such as those related to acts undertaken on behalf of international organizations by persons or actors other than organs, as well as acts performed in excess of authority.
On the question of the extent to which the conduct of peacekeeping forces was attributable to the contributing State or to the United Nations, she said the answer would depend on the circumstances. A range of scenarios existed. If the persons contributed were experts, responsibility for their actions could be attributable to the United Nations by terms of the 1946 Convention on Privileges and Immunities of the United Nations. The case of national contingents acting on behalf of a sending State would be a different scenario. A key issue to be considered would be the extent to which the conduct of individuals was governed by the United Nations.
RUSSEL MEZEME-MBA (Gabon), addressing the question of attribution of conduct of members of international organizations, said the Commission, despite the fundamental differences, should harmonize the internal laws of States and rules of international organizations. References could legitimately be made to the rules of the international organizations. On the issue of responsibility of peacekeeping forces, he said the benchmark could be rules of the United Nations. It would be preferable for a clear distinction to be established between private acts of the forces and official ones. The Commission could draw inspiration from the terms of status-of-forces agreements with host countries or with troop-contributing States.
On the draft articles adopted by the Commission on the responsibility of international organizations, he noted that they seemed to have been based on the Commission’s previous work on State responsibility. His delegation was satisfied with provisions of article 1 which dealt with the scope of the draft articles. The criteria used for defining the legal personality of an organization were superfluous.
MICHAEL WOOD (United Kingdom) said it was important for the Commission to take full account of the practice and concerns of all types of international organizations in its consideration of the present item. International organizations were infinitely varied in function and powers, status, rights and obligations, membership and relationships with members and non-members. It was, above all, an area where practice, case law and writings in the public domain were relatively sparse. The Commission should take stock before launching into an extensive drafting exercise. It could begin by running through all sections of the State responsibility articles and see the magnitude of the issues that arose.
With regard to the questions the Commission had asked governments to address, he said the concept of an “organ of an international organization” was central. How did one determine what an organ was? Did it include any person or entity with the status of organ in accordance with the “rules of the organization”? There were obvious differences between the internal law of a State and the rules of an organization. In the case of an organization, there wasn’t necessarily a body with the ultimate power to change the rules or interpret them. What if there were a difference of opinion on whether an entity was an organ for the purpose of the articles? Who would decide? The third question, on the extent of responsibility with regard to peace-keeping, forces illustrated the sensitivity of the attribution question.
Finally, he said, the Commission should reconsider the three articles adopted. Article 1 on scope covered an important matter. With article 2, care must be taken so that the scope of earlier Conventions was not cast into doubt. Article 3 was straightforward and not contentious. Yet it was doubtful that the State responsibility articles as a whole could easily be adopted to the different field of international organizations.
MARIA TELALIAN (Greece) said the rules on State responsibility could be modified to suit the needs on responsibility of international organizations. The full range of organizations must be taken into account since they varied so greatly. Some were established by legally binding agreements and others by non-binding ones. Some were established by national mechanisms and others by international. The special rapporteur had defined the legal personality of international organizations and had given consideration to their functions.
On the three draft articles that had been adopted but which didn’t deal with attribution, she said she agreed with article 3 on general principles. This did not have to be finalized immediately. It reprised the substance of the other two articles. On the three questions the Commission had put to governments, she said a general rule on attribution should contain a reference to the “rules of an organization”. The organization was liable. Also, the definition of rules as contained in the Geneva Convention was adequate, but established practice was an important factor in considering the question. On the extent of attribution of responsibility to the United Nations or peacekeeping forces, the responsibility of the United Nations for actions of its enforcers should be carefully considered. Concurrent or consequent responsibility should be taken into account.
STEPHEN MATHIAS (United States) said the issue of responsibility of international organizations was a complex one, in part because of the diversity of international organizations to which any articles on the topic would be intended to apply. The diversity contributed to the difficulty of defining “international organization” for the purposes of the topic and more generally. The United States would submit comments on the issue to the Commission prior to its next session.
He said the United States was also reviewing the specific issue of attribution on which the Commission had sought views of governments. The United States intended to provide written views on that to the Commission as well in due course. He said he encouraged the Commission to focus initially on determining the manner in which attribution issues had been addressed in the past and were currently being dealt with by States, international organizations and judicial and arbitral tribunals. With respect to peacekeeping, the term encompassed a wide range of activities under a wide range of authorities and mandates, and the United States believed that the Commission would be well served, in the first instance, to assess thoroughly the full range of practice in that area. Only after having done so should it proceed to prepare draft articles. The Commission should proceed cautiously on the question.
CLAUDIO TRONCOSO (Chile) said his delegation had the occasion at the last General Assembly session to make general comments on the question of responsibility of international organizations. The Commission’s previous work on State responsibility should provide guidelines. On the draft articles adopted by the Commission on the topic of responsibility of international organizations, he said the Commission should be more precise in indicating the obligations applied to States regarding their responsibility. It would be useful if a commentary was provided on how that responsibility would be formulated. Chile agreed with the provisions of article 2 covering the use of terms in the draft articles. He drew attention to phrases that had been deleted from the original text, and expressed doubts about the appropriateness of that action. He said his delegation would speak on other topics later.
ALAN BAKER (Israel) said more thought should be given to drafting the important primary provisions on scope, and the use of terms. The article on scope should spell out that the responsibility of a State for the act of an organization would apply only to the extent that the State was a member or organ of the organization. “Entities” should be clarified since it was simplistic as presently stated. The commentary indicating a “significant trend in practice” toward entities being additional members of international organizations was too broad. The Commission should focus on intergovernmental organizations. It may be better to delete the reference.
Continuing, he said it was useful for the rule of attribution to contain a reference to “rules”. The definition of “rules” as set out in the Law of Treaties was adequate. The question of peacekeeping responsibility should perhaps not be singled out at present. Those operations and arrangements were broadly varied. The goal was to ultimately ensure the elaboration of rules guaranteeing that responsible parties were held accountable, whether international or State organization, or both.
EUGENIO CURIA (Argentina) said his delegation supported the proposal by Austria and Sweden on revitalizing the debate on the report of the International Law Commission, saying it could help make the debate more constructive. In that regard, he reminded delegates of the importance of having sufficient time to study and analyze the report. Argentina would hand in its response to questions presented by the Commission. However, he said, the questions asked were somewhat general; he suggested that they could be made more specific in the future.
The report covered diverse aspects of the responsibility of international organizations, he continued. He said it would not be suitable to allude to the definition of “rules of the organization” contained in annex J of paragraph 1 of article 2 of the 1986 Vienna Convention. Just as States could not use internal rules to justify non-compliance with international responsibility, international organizations could not oppose an internal rule to justify an act of responsibility.
LUIS SERRADAS TAVARES (Portugal) commended the Commission for beginning work on such a complex topic, as well as adopting the three draft articles on it. It supported the provisions of articles 1 and 3, covering the scope and general principles of the draft articles respectively. It agreed with other delegations that article 2 -- which dealt with use of terms –- should deal with only the functional definition of international organizations. Careful consideration should be accorded the manner in which entities other than States that participated in international organizations were referred to in article 2.
On the specific issue of attribution, his delegation supported the view that reference should be made to an organization’s rules. The provisions of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations, and between international organizations themselves could be a starting point.
The issue of conduct of peacekeeping forces should be governed by agreements concluded between the organization and the troop-contributing State. The Commission should carefully study the practice of the United Nations and other international organizations.
VLADIMIR TARABRIN (Russian Federation) said international organizations were increasingly active and yet many aspects of their nature and operations were unknown. The responsibility of States should serve as the basis for articles on responsibility of international organizations. Adopting draft articles was a key factor for the whole legal area in that regard. The definition of international organization should not be avoided no matter how much debate it had stirred in the Committee. The general view had been to depart from the formal definition of international organizations. It should be kept in mind, however, that intergovernmental organizations were the only ones under consideration and the articles should clearly state that.
Continuing, he said it was superfluous to include language on a treaty requirement for the organization’s establishment. The rules of international organizations were part of international law, although reference may have to be made to the organization’s internal rules. There was no basis for believing that the definition of “rules” as stated in the Geneva Convention was not adequate.
JUAN ANTONIO YANEZ-BARNUEVO (Spain), addressing the report as a whole, said there should be a clearer expression of the goals the Commission wanted to achieve in the next year. It should also resist the temptation to include new items until it was clear that one or several could be brought to a successful conclusion during the five year period projected.
With regard to the scope of the issue on responsibility of international organizations and the three articles that had been adopted, he noted that the work was an outgrowth of that done over decades on State responsibility. In that, he said States were both active and passive participants. In other words, States could be actors or be acted upon as victims. The fact that an international organization could be the passive party, the victim of a State, was not yet clear. Over and above on the draft articles, the Commission should bear in mind the practice developed over recent decades in this area as well as the scholarly work done by the International Law Association and that done by the Spanish Law Association on International Law based in Costa Rica. Both those had dealt with the question of organizations as passive and active bodies.
On the draft articles themselves, he said article 1 contained a contradiction. On article 2, the Commission was right that the definition of an international organization must be broader than one including only intergovernmental organizations. A view on article 3 would depend on subsequent articles to come. A reference to rules of the organization would establish the legal personality without prejudging internal rules. The Commission and special rapporteur should continue on in the direction of their work.
LUDMILA KAMENKOVA (Belarus), speaking on the responsibility of international organizations, said the International Law Commission had laid a good foundation at its last session on the topic, aided largely by the work of its special rapporteur. She believed the draft articles should include rules of organizations. Those rules were not only important for regulating relations between international organizations, but also those among States and officials. It would be useful in dealing with responsibility of internationally unlawful acts. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations and between International Organizations created normative rules which had particular legal significance and should be considered and incorporated in the draft articles.
On the question of responsibility of peacekeeping forces, she said there was need to talk about proportionality and responsibility between the United Nations and troop-contributing States for harm caused by soldiers during peacekeeping operations. There should also be attribution of responsibility for harm caused during such operations. The starting point could be the mandate of the peacekeeping operation concerned and the effectiveness of the force commander.
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