Fifty-ninth General Assembly

Sixth Committee

21^st & 22^nd Meetings (AM & PM)

PRESIDENT OF international court tells legal committee

 

‘advisory opinion’ function could play stronger role

 

More Direct Contribution Seen to Settling Disputes;

Committee Continues Review of Topics from Law Commission Report

There were several ways the advisory opinion function of the International Court of Justice could play a more direct role in settling and preventing international disputes, the President of the Court told the General Assembly’s Sixth Committee (Legal) today, as the Committee met to continue considering the report of the International Law Commission by taking up two new topics.

In his traditional address to the Committee after presenting the Court’s annual report to the General Assembly yesterday, Shi Jiuyong, President of the Hague-based institution, said advisory opinions of the Court had played a part in preventing disputes by establishing the legal parameters within which a problem could be resolved.  At present, he noted that only the General Assembly or the Security Council could ask the Court for advisory opinions.  However, that non-binding, but respected mechanism could be broadened.

He said intergovernmental organizations could be authorized to request opinions directly through Security Council or General Assembly resolutions.  The Secretary-General could be empowered to request advisory opinions on his own initiative.  National supreme courts, international courts and tribunals could be authorized to request advisory opinions on difficult or disputed questions of international law.

Introducing the Court President, the Chairman of the Committee, Mohamed Bennouna (Morocco), said the traditional visit was an honour and privilege.  Members of the Committee were admirers of the Court and followed its deliberations with great interest.  The Court’s decisions were invaluable for Committee members in determining rules of international law.

The Committee then took up the two new topics in the International Law Commission’s report on its fifty-sixth session –- responsibility of international organizations and shared natural resources.

Introducing the topics, the Chairman of the Commission, Teodor Viorel Melescanu (Romania), said the draft articles on responsibility of international organizations were similar in many respects to corresponding ones on “responsibility of States for internationally wrongful acts”.  They dealt with most of the issues addressed in the State responsibility articles.  A provision set forth the general rule on attribution of conduct to an international organization.

Although another Special Rapporteur’s report on “shared natural resources” presented draft articles, he said, the Commission took no decision on their final form.  An open-ended working group was set up on transboundary groundwater.  Support had been expressed for terminological changes, namely the use of “aquifer” instead of “groundwaters”, and “transboundary” instead of “shared” to describe the natural resources covered in his study.

A number of delegations said the topic of responsibility of international organizations was a complex one.  The representative of the United States said international organizations varied greatly in their functions and structures, as opposed to States.  It made difficult the development and application of any set of articles or rules for the diverse organizations that might be covered by them.  The differences between States and international organizations should be borne in mind in the formulation of relevant articles.

Speaking on behalf of the European Union, the representative of the Netherlands said the International Law Commission should carefully consider large diversity among international organizations when adapting articles on State responsibility.  In view of the specific character of the European Community, he said, there were some considerations that the Commission should take into account in dealing with the responsibility of international organizations.  There was need for the Commission to address the special situation of the Community within the framework of the draft articles.

The representative of Brazil, speaking on shared natural resources, said the lack of accuracy on the title of the topic could challenge the evolution of discussions on the issue in the future.  His delegation reaffirmed the understanding that a step-by-step approach must be pursued on the development of the topic.  States had the primary responsibility for the way groundwater resources were managed.

Statements on the topics were also made by the representatives of Germany, Argentina, Italy, China, Uruguay, Canada, Japan, Poland, Iran, France, Russian Federation, Austria, United Kingdom, Portugal, Belarus, Spain, Singapore, Denmark (on behalf of the Nordic countries), Libya, Belgium and Chile.

Also today, the Committee decided to recommend Observer status in the General Assembly for the South Asian Association for Regional Cooperation.  The seven members of the regional inter-governmental group are Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka.  Its purpose is to promote cooperation among members for social, economic and cultural growth at national, regional and international levels.

The representative of Austria introduced a draft resolution on the Jurisdictional immunities of States and their property.  Action on the text would be taken later in the session.

The Sixth Committee will next meet at 10 a.m. on Monday, 8 November, to conclude the debate on the two topics, and to start new ones -- Unilateral acts of States and Fragmentation of international law –- which were also considered by the International Law Commission at its fifty-sixth session.

Background

The Sixth Committee (Legal) met today to continue deliberations on the report of the International Law Commission by taking up “responsibility of international organizations” and “shared natural resources”, and also expecting the annual visit of the President of the International Court of Justice.  (For background on the report, see Press Release GA/L/3263 of 1 November.)

The Committee has before it the Commission’s report on its fifty-ninth session (Geneva, 3 May to 4 June and 6 July to 6 August) (document A/59/10).

Also before the Committee is a draft resolution, expected to be introduced, on the convention on jurisdictional immunities of States and their property (document A/C.6/59/L.16).  The topic was debated on 25 and 26 October (see Press Releases GA/L/3259 and GA/L/3260).  By the draft, the Assembly would agree with the general understanding reached in the Ad Hoc Committee on the matter that the convention did not cover criminal proceedings.  It would then adopt the six-part convention contained in the resolution as an annex.

Part I of the text is the introduction, dealing with the scope, use of terms, privileges and immunities not affected, and also non-retroactivity.  Part II, on general principles, treats the issues of immunity, modalities, express consent, participation in a court proceeding and counterclaims.  Part III, on proceedings in which State immunity cannot be invoked, covers commercial transactions, contracts of employment, personal injuries and damage to property, ownership, possession and use of property, intellectual and industrial property, participation in companies and collective bodies, ships and arbitration agreements.

Part IV, on immunity from measures of constraint before a court, deals with pre- and post-judgement measures of constraint, effect of consent to jurisdiction and specific categories of property.  Part V related to miscellaneous provisions, covering service of process, default judgment and privileges and immunities during court proceedings.  Part VI, final clauses, covers the relationship of the convention to other agreements, dispute settlement and the ratification process.  An annex to the convention covers understandings with respect to certain provisions.

Finally before the Committee today was a draft requesting Observer status in the General Assembly for the South Asian Association for Regional Cooperation (document A/C.6/59/L.21), which had been introduced on Wednesday, 3 November, by Pakistan.  A background report on the seven-member intergovernmental body (document A/59/234) states that it aims to promote cooperation among members to achieve social, economic and cultural growth on a national, regional and international level.  (The seven member-countries are:  Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka.)

Introduction of New Topics

TEODOR VIOREL MELESCANU (Romania), International Law Commission Chairman, introduced Chapter V of the report on the “responsibility of international organizations”.  He recalled that Special Rapporteur Giogio Gaja (Italy) had dealt with the scope and general principles in his first report the previous year.  His second report on attribution of conduct contained four draft articles, numbers 4 to 7.  They corresponded to Part One, Chapter II, of the text on “responsibility of States for internationally wrongful acts”.  Attribution of conduct was one of the conditions for a similarly wrongly act of an organization.  As noted in the general commentary, the same conduct could be attributable to a State and an international organization, or to two or more international organizations.

He said articles 4 to 7 were similar to the corresponding articles on responsibility of States.  Both dealt with attribution of conduct and not responsibility.  The articles provided only positive criteria rather than pointing out when conduct could not be attributed to an organization.  For example, the articles implied only that conduct of State military forces was not attributable to the United Nations when the Security Council authorized the State to take necessary measures outside a chain of command linking the forces to the United Nations.  Further, both sets of articles dealt with basically the same issues, except that the possibility of conduct in the absence of official authorities or under insurrection was omitted in relation to organizations, since they were not expected to meet such situations.  If they did, the rule for States would apply.

He said article 4 on the general rule of attribution consisted of four paragraphs.  The first provided that the conduct of an organization’s organ or agent was an act of that organization if it was performing functions conferred by the organization.  The second paragraph clarified the term “agent” to include officials and other persons or entities through which the organization operated, without indicating either the official character or legal nature of a person or entity.  Paragraph three dealt with the applicability of the organization’s rules to its organ or agent, although in exceptional circumstances functions beyond the organization’s rules could be given to an organ or agent.  Paragraph four contained a definition of an organization’s rules, which broadened the definition contained in the 1986 Vienna Convention on the Law of Treaties with the phrase “other acts taken by the organization” to cover the broad range of constituent instruments of an organization.

Moving on to article 5 on conduct, he said it indicated the criterion for attributing conduct to the receiving organization when an organ or agent was placed at its disposal.  The criterion was whether the receiving organization had effective control over the conduct.

Article 6 concerned excess of authority or contravention of instructions, he said.  It indicated that such conduct by an organ or agent was attributable to the organization if the conduct was carried out in an official capacity.  It conveyed the need for a close link between the excessive conduct and the organ or agent’s functions.  The provision concerned only the question of attribution and did not prejudge the conduct’s validity under the organization’s rule or responsibility relative to the need to protect third parties.

Article 7 provided for attributing the conduct of an agent or organ to an organization if it acknowledged and adopted the conduct as its own.  That was based on the principle of an organization’s attitude determining the extent to which conduct was attributable to it.

In summary, he said, the topics to be covered in the next report were:  breach of an international obligation; circumstances precluding wrongfulness; and responsibility of an international organization in connection with the wrongful act of another State or organization.  The Special Rapporteur was particularly interested in hearing views on:  to what extent should the Commission consider breaches of obligations by the international organization towards its member States or agents?; could an organization invoke “necessity” as a circumstance precluding wrongfulness?; if a member State took an action in compliance with an organization’s request that was a breach of obligations for them both, would both be regarded as responsible under international law?; Would the answer to that question be the same if the conduct was only authorized and not requested?

Turning to Chapter VI of the Commission’s report on “shared natural resources”, he said the Commission had wanted to focus on the study of transboundary groundwaters.  The work was in preliminary stages and it was impossible to stress how important it was for States to give their views on the general framework proposed by Special Rapporteur Chusei Yamada (Japan).  It was loosely based on the 1997 Convention on the Non-navigational Uses of International Watercourses, taking into account the draft articles on preventing transboundary hard from hazardous activity.

That framework consists of Part I, introduction covering scope and use of terms; Part II, general principles, covering use of transboundary groundwaters, obligation not to cause harm, obligation to cooperate, exchange of information and data, relationship between kinds of uses; Part III, activities of other States, covering impact assessment, information exchange and consultation/negotiation; Part IV, on protection, preservation and management, treating the issues of monitoring and prevention; Part V covering miscellaneous provisions, Part VI on dispute settlement and Part VII containing final clauses.

In addition, the Chairman continued, the Special Rapporteur would welcome detailed and precise information on practice, in particular bilateral or regional practice relating to allocation of groundwaters from transboundary aquifer systems and relating to the management of non-renewable transboundary aquifer systems.

Turning to the report itself, he said the set of six draft articles now before the Committee constituted Parts I and II of the general framework, with the article on “use of transboundary groundwaters” to be treated in the next report.  The draft articles were meant for discussion.  No decision had been made about the form they would take and they had not been referred to the Drafting Committee.  New elements included the use of “transboundary” rather than “shared” natural resources with respect to groundwaters, because of the sensitivity of the latter term.  Also, the term “confined groundwaters” had been dropped from the scope, since it had a specific meaning for groundwater experts different from that attributed to it in the 1997 watercourses convention.  If used, the term meaning “unrelated to the surface waters” would exclude aquifers such as the Nubian Sandstone Aquifer system in Chad, Egypt, Libya and the Sudan, which was linked to the Nile, though negligibly.  It would also exclude the Guarani Aquifer in Argentina, Brazil, Paraguay and Uruguay.  Finally, it had been decided to use the term “aquifer” instead of “groundwaters”.

Continuing, he said the topic was specialized and State practice in the area was scarce.  An open-ended working group had been set up on the subject and briefings had been held with experts from the Economic Commission for Europe, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Food and Agricultural Organization (FAO) and the International Association of Hydrogeologists.  During the Commission’s consideration of the Special Rapporteur’s report, it was suggested that an article be elaborated on the relationship between the groundwater text and the watercourses convention.  Also pointed out was the fact that the watercourses convention had not yet been adopted and had few signers to date, a situation similar to that of the convention on preventing transboundary harm.

Other observations included the insufficiency of the articles in giving enough weight to the primary role of the State in deciding and managing its groundwater resources.  Groundwaters should be regarded as belonging to the State where they were located, treated like oil and gas.  Also, regional developments and arrangements should be taken into account, with some preferring regional approaches but others saying that the Commission’s work would be complementary to national and regional approaches.

With regard to the future draft article on principles applicable to groundwater resources, he said the principles incorporated in the 1977 watercourse convention regarding “equitable use” and “reasonable utilization” were applicable to groundwaters with some modifications to account for the exhaustibility and vulnerability of groundwaters to degradation.  Environmental protection, sustainable use of aquifers and protection of vital human needs should be taken into account.  Also, the threshold of “significant harm” was thought inappropriate for vulnerable groundwaters.  Inter-generational equity and respect for environmental integrity should be taken into account.

Finally, with regard to form, he said divergent views had been expressed.  Given the paucity of State practice, some said they preferred guidelines rather than a convention.

Address by President of International Court of Justice

SHI JIUYONG, President of the International Court of Justice, said the 2003-2004 annual report he had just delivered proved that the principal judicial organ of the United Nations had enjoyed another year of great activity.  It had begun with 25 cases and ended with 20 as at 31 July, now having 21 cases on its docket originating from all over the world on a wide range of subjects.  In the year under review, it had held five sets of hearings related to 12 cases; eight cases concerning the legality of the use of force being dealt with simultaneously.  Three final judgments had been delivered and one advisory opinion.

Because historical context limited United Nations authority in requesting legal opinions of the Court, he said that the last potential of the Court’s advisory function was being under-utilized.  Front page coverage of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the occupied Palestinian territory had demonstrated the importance of the function.  Now the Court’s opinion could be requested only through the two principal organs.  The Security Council had exercised that authority only once, in the case of Namibia.  One third of advisory opinion requests, on the other hand, had come from the General Assembly, as had the case involving the wall.

When considering its jurisdiction, the Court was subject to the Charter’s Article 96, requiring that a question put to the Court be of a legal nature, regardless of political context.  Advisory opinions were not binding.  Even the requesting body was not obliged to accept the Court’s conclusions.  So why should recourse to the advisory function be encouraged, and how might its potential be fulfilled?

The Court could play a role in international dispute resolution and prevention, he said.  It could also clarify and develop international law.  There had been instances where States had found it more acceptable for an advisory opinion to be requested than for contentious proceedings to be instituted.  The advisory procedure had also played indirect parts in preventing disputes and conflicts by clarifying legal parameters within which a problem could be resolved.  Advisory opinions had also allowed the Court to determine the status of principles and rules of international law, thereby contributing to a more cohesive rule of law.  They had established and settled points of law related to international organizations, particularly since non-State entities had no recourse to its jurisdiction.  Many more international problems could be resolved than on the 24 occasions in its 58 years of existence when the Court had been asked to exercise its advisory function.

That function could be more fully exploited in a number of ways, he said.  The field of applying the Court’s jurisdiction could be broadened, such as by authorizing inter-governmental organizations to request opinions, directly through Security Council or General Assembly resolutions.  Either of those bodies could ask for legal opinions on behalf of organizations, which would be most useful for regional bodies with their recognized role in maintaining international peace and security.

Also, he said the Secretary-General could be empowered to request advisory opinions on his own initiative.  At present, the Secretariat, as represented by the Secretary-General, was the only main organ not authorized to request an opinion.  The Secretary-General could only place a question on an organ’s agenda, and suggest it become the object of a request for an advisory opinion.  Further, national supreme courts, international courts and tribunals could be authorized to request advisory opinions on difficult or disputed questions of international law, thereby also having the advantage of allowing for a uniform interpretation in those areas.

Sierra Leone’s representative asked the Committee to devote time to considering this proposal.  He also asked the Committee to consider ways in which respect for the Court’s opinions could be enhanced.

The Committee Chairman noted that the Security Council had never taken steps to enforce the Court’s opinion.  He said that was part of the debate on how to implement international law.

The President of the Court said the non-binding nature of its opinions was one reason why the Court was respected.

Statements

JOHAN G.LAMMERS (Netherlands), on the issue of shared natural resources, said his country shared many resources with other States or areas beyond its national jurisdiction.  International regulation of the uses of, and impacts on, those resources was therefore of great significance to it.

He expressed his Government’s concern about the vanishing scope of the topic discussed this year by the Commission -- “transboundary aquifer systems”.  While it was acknowledged that migratory species and all mineral deposits not within the jurisdiction of a single State fell within the concept of “shared natural resources”, the scope of the topic had from the outset been limited to groundwater, oil and gas under the jurisdiction of two or more States.  Secondly, while the intention might still be to take up oil and gas in the future, he said the discussion last year had been limited to groundwater.  He noted that this year’s discussion had been limited to aquifers –- that is, permeable water-bearing rock formation capable of yielding exploitable quantities of water.

Depending on the interpretation to be given to the definition of “aquifers” -– in particular whether permeable rock formations might or might not include sands or gravels –- there might or might not be aquifers in the Netherlands.  In the latter case, the question would then arise as to what rules or principles of international law would govern transboundary groundwater systems, which were not aquifer systems.

Speaking on behalf of the European Union on the topic of international organizations, he said the International Law Commission should carefully consider large diversity among international organizations when adapting the articles on State responsibility to the topic under discussion.  The European Union and the European Community were themselves testimonies to that diversity.

In view of the specific character of the European Community, it believed that there were some considerations that the Commission should take into account in dealing with the responsibility of international organizations.  The European Community was bearer of many international obligations, especially because it had concluded many treaties.  However, sometimes not only the behaviour of its own organs, but also of organs of its member States, might breach such obligations.  Such actions would therefore be prima facie attributable to those member States.  There was need for the Commission to address the special situation of the Community within the framework of the draft articles.

THOMAS LAUFER (Germany), speaking on responsibility of international organizations, said that although the Commission had focused on the attribution of conduct at its 2004 session, the question remained as to the circumstances under which conduct that was attributed to the organization might entail responsibility of the member States.  His delegation shared the Commission’s view that the core criterion for the attribution of ultra vires conduct was the requirement that the organ or agent had acted in that capacity –- that is, that the organ or agent must act under the authority or mandate of the organization.  Draft article 6 (which dealt with situations in which an organ or agent of an international organization exceeded authority or contravened instructions) thus excluded acts performed in a private capacity.

He said Germany supported the Commission’s method of resorting to the solutions found within the context of the responsibility of States.  However, it was not convinced that the concept of “necessity” could be suitably applied within the context of the responsibility of international organizations.

On the topic “Shared natural resources”, he said he supported the aim of protecting transboundary groundwaters through international cooperation and regulations under international law.  How that could be achieved efficiently and flexibly should be considered by the International Law Commission, he said.  It would be useful for the Commission to think of “building blocs” in elaborating the texts.  That approach would make it more possible for individual cases to reach legally binding regulations at regional level than would be the case in a global convention.  His delegation believed that the United Nations Environment Programme (UNEP), with its experience in other fields of international legislation in the environment sphere, could play an important role in developing that approach.

GUILLERMO KENDALL (Argentina) he said the proposed draft articles on shared natural resources must have a preamble.  The topic required special normative treatment.  There was no reason for the Commission to stray from the title of the topic.  It would, however, support a sub-title dealing with transboundary aquifer systems.  The link between the draft articles and the 1997 Convention on Watercourses should be studied.  The 1997 Convention deserved special mention.  His delegation agreed with the Special Rapporteur on the topic that groundwater aquifer systems should be properly regulated.  The draft articles should take into account the special needs of groundwater sources.

He referred to the effort of the MERCUSOR member countries of South America to establish a legal framework to regulate the rights and duties of States under whose territories the Guarani Aquifer were located.

LUIGI FERRARI-BRAVO (Italy) welcomed the progress made on the topic of responsibility of international organizations.  The articles could be adapted to the Commission’s text on responsibility of States.

He agreed with the approach taken by the Commission on the topic.  There were some questions, which should be addressed, such as the extent to which international organizations could be responsible for actions of a memberState.  A study should be made of State conduct in such cases.  A secondary issue was the responsibility of State members when the organization committed an act that was not acceptable.  It was not clear whether uniform rules could apply to all organizations.

He welcomed efforts made by the Commission on the topic of shared natural resources, an area that had been relatively unexplored.  It was an important subject because of the dangers of pollution and over-use.  He proposed the consideration of a draft protocol to complement the provisions of the 1997 Convention on Watercourses.

SYDNEY LEON ROMEIRO (Brazil), speaking on shared natural resources, welcomed the Commission’s decision to focus on “transboundary groundwaters”.  The lack of accuracy on the title of the topic could challenge the evolution of the discussions on the issue in the future, he said.  His delegation reaffirmed the understanding that a step-by-step approach must be pursued on the development of the topic.  States had the primary responsibility for the way groundwater resources were managed.

He said the MERCOSUR member countries had established an ad hoc high-level group to elaborate a legal framework to regulate the principles, rights and duties of the members under whose territories the resources of the Guarani Aquifer were located.  They had reaffirmed that groundwaters belonged to the territorial dominion of the State under whose soil they were located.  It was important that the principle of sovereignty on the use of transboundary resources be reiterated, as contained in General Assembly resolution 1803 (XVII) of 1962.

JIA GUIDE (China), speaking on responsibility of international organizations, said China could support the draft articles on the topic.  Responding to questions posed by the Special Rapporteur, he said the Chinese delegation believed that breaches of obligations that an international organization might have towards memberStates or its agents fell within the purview of the topic and should be studied by the Commission.  The Commission could do so from the perspective of conduct in breach of international obligations, which was a premise for responsibility of an international organization for its conduct.

On another question, the Chinese delegation said necessity to preclude wrongfulness should not be invoked by an international organization.  While States were entitled to do so to safeguard their essential interests, it was inappropriate for international organizations to do the same.

On the topic of shared natural resources, the Chinese delegation said it supported the framework and draft articles on it.  The question of relationship between the proposed articles and the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses should not arise. “Transboundary aquifer systems” were no longer limited to “confined transboundary groundwaters”, but could be connected to surface waters.

The Chinese delegate said the final form of the draft articles could be decided after progress was achieved on substantive matters.

FELIPE PAOLILLO (Uruguay) said the groundwater topic was important to his country because of the Guarani aquifer shared with neighbours Argentina, Brazil and Paraguay.  The text should take the final form of recommendations or guidelines, not just because there was insufficient State practice for codification, but also because groundwaters differed so greatly from region to region.  Studies were under way to determine more about the Guarani aquifer.  Through the Southern Common Market (MERCOSUR), a group of legal experts had elaborated a text that set out principles regarding that shared natural resource.  By that, the aquifer was part of each country’s territory under the area covered, and each country was responsible for its portion of caring for it.  Principles built into the agreement included the obligation not to cause harm.

He said the principles of the 1997 watercourse convention should be adapted for the groundwater text.  Some terms should be refined and replaced, such as the term “exploitation”, which carried sensitivities that could best be avoided by using the term “usage”.  And since groundwaters were non-renewable resources, a lower threshold than significant harm should apply.

JOHN CURRIE (Canada) said consideration of the framework on the groundwater text should take into account that reliance on the 1997 watercourse convention should be balanced with other approaches, so as to generate consensus on the new draft articles.  In particular, the provisions of the current framework that would allocate water resources of aquifers between States on the basis of the watercourse provisions would be controversial.  His country was submitting detailed answers to the questionnaire that had been distributed.  As a preliminary observation, the existing Canada-United States bilateral instruments did not apply to groundwaters.

HIROSHI TAJIMA (Japan), speaking on international responsibility, said the diversity of international organizations made the articulation of common guiding principles difficult.  “Rules of the organization” differed widely from one to the other, and needed case-by-case analysis.  Further, the standard of “effective control” needed further work.  While it was useful to have a generalized criterion for determining responsibility that could be applicable to each organization, could the standard of “effective control be applied in an actual situation? he asked.  The effectiveness of a vague criterion was questionable, while a detailed sub-criterion could render it impractical for across-the-board application.

On the question of shared natural resources, he said the focus of the work should not be limited to those groundwaters not covered by the 1997 watercourse convention; some aquifer systems covered by that convention had characteristics of groundwaters, and they should be governed by a new convention on groundwater.  Problems of dual applicability should be addressed through a provision.  The legal framework should fully take into account the unique characteristics of groundwaters.  The question of final form should be decided later.

Action on Draft

The Committee took up the draft on observer status in the General Assembly for the South Asian Association for regional cooperation (document A/C.6/59/L.16).

The resolution was approved without a vote and without an explanation of vote before or after action.

Introduction of Draft

Austria’s representative introduced the draft on the convention on jurisdictional immunities of States and their property (document A/C.6/59/L.21), which had been prepared by the Bureau.

The Committee Chairman noted that 27 years of work had come to an end with the finalization of the draft.  Historical events had added to the urgency of the finalization.

When the Committee met again this afternoon, REMIGHIUSZ A. HENCZEL (Poland) said the law of international organizations could not, in many cases, be defined as a self-contained regime.  The law of responsibility would often play at least a subsidiary role in the relations between the organization and its member States.  Therefore, it seemed justified that breaches of obligations that an international organization might have towards its memberStates, or its agents, should be considered by the Commission in its study.

It was of the opinion that the international legal concept of the State of necessity was strictly connected with the international position of the States and not with that of international organizations.  The Commission should omit the State of necessity as a circumstance precluding wrongfulness of acts of the organization.

MOSTAFAR DOLATYAR (Iran) noted that the present draft articles on international organizations were not intended to point to cases in which the conduct of a memberState could not be attributed to the organization.  His delegation understood the reasons and had some sympathy for them.  It also noted the growing cooperation among international organizations and between States and international organizations, and the confusion that might arise in respect of the attribution of conduct in cases of request or authorization.  The issue should be dealt with properly in the draft articles.

His delegation believed that cases in which an international organization gave authorization to its members for a certain conduct should be differentiated from those in which the organization requested them to take very similar conduct.  He said in the past decade there had been a number of cases in which the United Nations Security Council had authorized Member States to take necessary measures in respect of certain situations.  There were no cases in which the United Nations had been held responsible for conduct of a MemberState in performing that authorization.

RONNY ABRAHAM (France) said he would address the four articles on responsibility of international organizations.  They were well formulated and the commentary clarified a complex subject.  Reviewing the articles, he said the definition of terms and scope was well set out, broad and yet specific.  The draft on the attribution of conduct was liable to raise the greatest difficulties in practice, since it seemed to apply to the military put at the disposal of the United Nations for peacekeeping activities.  The criterion that had been kept was effective control, but could that be determined?

He said the article should be developed more fully, and asked whether a distinction had to be made between attribution of conduct and attribution of responsibility.  The question of a violation of an organization’s rules should not be removed although the scope should be limited; occasions on which “necessity” was invoked would be rare.

He said more work was needed on the article attributing an organ’s wrongful conduct to the organization when the conduct had been authorized or requested.  Was the authorization of such an act a violation of law or rule? he asked, adding that that depended on the latitude the organization gave the State.

IGOR PANEVKIN (Russian Federation), speaking on the groundwater question, said a study of the types of water should be undertaken; however, little State practice was available at present.  In his country and region, groundwater was not covered by instruments relating to top water and the issues involved with groundwater were outside the scope of the watercourse convention.  There was a 1992 closed waterway convention, as well.  That could give some direction for elements to include and how to handle them, such as how provisions should reflect the special characteristic of groundwater; that it was non-renewable and could be exhausted.  The provisions should be in the form of a framework.

HANS WINKLER (Austria), in a statement read for him, said his country believed that the International Law Commission should not consider breaches of obligations that an international organization might have towards its agents, since that would rather be a matter of internal administrative law.  Responding to questions raised by the Commission, he said that the Commission should, however, include general rules of responsibility for the case an organization breaches obligations towards its member States.  Of special concern could be the legal consequences of an ultra vires act of an international organization towards its member States.  A second crucial issue of practical relevance was the legal consequences of the member States within the organs of the responsible organization.

On shared natural resources, he said his delegation regarded the general framework presented by the Special Rapporteur on the topic as a good starting point for further work by the Commission in elaborating universal rules on groundwater.  To limit the scope of the articles to transboundary aquifers seemed reasonable.  Austria agreed that a decision on the legal form of the articles should only be taken once the content had become more precise.

CHANAKA WICKREMASINGHE (United Kingdom) said there was considerable difference in the practice of organizations in the field, but it was clear that the large majority had little or no practice of claims made against them for violations of international law.  It was doubtful whether rules could be deduced by analogy from cases involving liability under domestic law.  An overview that addressed some of the fundamental underlying difficulties would be helpful.

Reviewing the draft articles, he said the article attempting to deal with organs or an organization and its agents in the same provision had led to lack of clarity.  The test of “effective control” seemed largely based on practice relating to peace-keeping forces and may not be appropriate to the breadth of situations to which the article applied.

Commenting on the other chapters of the report, he said the Commission should spend its time more fruitfully than continuing work on “unilateral acts”.  The definition of objections to reservations was unconvincing, given that substantive work had not yet been undertaken on the effects of reservations.

LUIS SERRADAS TAVARES (Portugal), speaking on responsibilities of international organizations, said the draft articles should follow the general framework on the text of State responsibility.  The issue was becoming more and more complex.  Articles should be the starting-point, not the end, of codification on the topic.  Provisions should encompass the diversity of international organizations.

Those organizations were international law subjects that in several aspects differed from State to State.  At the same time, in contrast with States, there was much diversity within international organizations.  Those considerations must be taken into account in the drafting of the articles on the topic.

On shared natural resources, he said the draft texts were useful.

LUDMILA KAMENKOVA (Belarus), speaking on responsibility of international organizations, welcomed the provisions of article 4 on general rules of attribution of conduct.  Those provisions could be transposed to article 2 on the use of terms, she said.  Article 5 must be given a clearer definition.  The article covered the conduct of organs or agents placed at the disposal of an international organization by a State.  She also spoke on the concept of extreme necessity.  She hoped the Commission would take account of work done by others at the regional or other levels.

CONCEPCION ESCOBAR HERNANDEZ (Spain) said the draft articles on responsibility of international organizations closed up some gaps in the complex arena, and yet left areas open to be revisited later.  Breaches of obligations of an organization toward memberStates or organs were in part breaches of international law.  A distinction should be made between the two kinds of breaches, of the organization’s internal rules and of the international law.  Any treatment of breaches should contain three elements:  the diverse relationship between organizations and their members or organs should be addressed; the circumstances of the breached obligations or negligence of responsibility should be taken into consideration; and autonomous mechanisms for dealing with the consequences of the breach, jurisdictional or otherwise, should be taken into consideration.

Further, she said the functional development of organizations right now required that a careful analysis of the unpeaceful “state of necessity” should be invoked.  The degree of autonomy of a State and organization were different.  Whether the organization would be responsible for an act of a member would have to be determined by analysing State practice.  It was an important area.

YVONNE OW (Singapore) said the principles governing attribution of conduct to international organizations were a key component of responsibility.  The articles now before the Committee defined a set of criteria and set out the broad range of circumstances under which the issues could occur.  The article on conduct of organs placed at an organization’s disposal seemed relevant to military contingents with the United Nations.  The issue should be examined more closely in relation to troop contribution agreements, contributing-state responsibility and international humanitarian law.  How would the situation of an organization acknowledging and adopting wrongful conduct by an agent come about? she asked.

On breach of international obligations, she said it was inappropriate to include the question of breaches of obligations by an international organization toward its memberState or agents.  There was no consensus on the legal nature of an organization’s rules in relation to international law.  Indeed, the relations between an organization and its member States or agents were largely governed by the organization’s rules.  Such internal rules could provide the consequences of breaches.  On circumstances precluding wrongfulness, it would be useful to explore the context for applicability and the specific principles to be invoked.  Could a “state of necessity” parallel to State responsibility be invoked?  Was the notion of a grave and imminent peril relevant to an organization?  The question of an organization’s responsibility for acts of Members was an important one.  The critical factor was the link to a clear organizational obligation that would be violated if the conduct were performed by the organization itself.

DAVID KENDAL (Denmark), speaking for the Nordic countries, said the article defining rules of the organization did not fully take into consideration the impact of the term “general acceptance” with regard to established practice.  On attribution of conduct, “effective control” was not fully adequate for deciding attribution in some kinds of cooperation between international organizations and States or other organizations.  How did “effective control” relate to the case of troop contributing countries retaining criminal jurisdiction over troops?

Regarding attribution, he said it was no simple task to define the rules of an organization under international law.  Were there certain types of rules that could be considered as not entailing obligations under international law?  Perhaps the principle could be sidestepped by accepting that breach of all types could entail responsibility while recognizing that in practice there would be rules of an internal nature that would not give rise to responsibility.  Examination of the question of “effective control” should focus on the actual situation leading to the act or omission entailing responsibility.  Could an organization through a binding decision oblige a memberState to act?

FETHALLAH ALJEDEY (Libya) said the topic of responsibility of international organizations was a complex one and that priority should be given to it.  He said there was no responsibility when there was no wrongful act.  If there were wrongful acts, should an organization be held responsible? he asked.  He also spoke about the economic sanctions imposed on his country.  When international organizations took action that inflicted damage, States involved should bear responsibility, he said.  Libya believed that drafting articles on the subject was important.

TODD BUCHWALD (United States) said the issue of responsibility of international organizations was a complex one.  International organizations varied greatly in their functions and structures, as opposed to States.  The diversity contributed to the difficulty of defining international organizations for the purposes of the topic.  It also made difficult the development and application of any set of articles or rules for the diverse organizations that might be covered by them.  The differences between States and international organizations should be borne in mind in work on the articles.

The United States was reviewing the specific issues on which the Commission had sought the views of governments, relating to the scope of the study undertaken by the Commission, the possibility of a necessity defence for international organizations and the responsibility of international organizations for State actions requested or authorized by an international organization.  It hoped to provide written response in due course.  It encouraged the Commission to place particular emphasis on relevant practice as it continued with its study.  The Commission should avoid developing rules in the area of international organizations that simply paralleled the rules set forth with respect to States in the draft articles on State responsibility.  Rather, the Commission should work to thoroughly and carefully asses the unique consideration relevant to that important topic, as it proceeded with its work.

On shared natural resources, he said context-specific arrangements were the best way to address pressures on transboundary groundwaters.  Numerous factors might appropriately be taken into account in any specific negotiations.  They might include hydrological characteristics of the aquifer at issue; present uses and expectations regarding figure uses; climate conditions and expectations and economic, social and cultural considerations.

MARC PECSTEEN (Belgium) said it was difficult to set up boundaries in the responsibility of an organization and its members.  It was not easy to say where the internal law of the organization began and ended, where international law took over.  What was the legal status of a memberState refusing to participate in a sanction? he asked.  The scope of the draft articles on responsibility should take into consideration the fact that a violation of an organization’s rules would be one against a general principle of international law.

With regard to invoking the state of “necessity” to preclude wrongfulness, he said the question was easier to grasp in connection to States than with organizations.  In the event there was non-compliance with obligations, the totality of the circumstances had to be considered and maybe the organization could invoke the “state of necessity”.  Circumstances for not complying with obligations were set out in the articles.  The question of responsibility in the event a State took a wrongful conduct under request or authorization of the organization should be reworded, and examples given for the situations in which that could occur.

CLAUDIO TRONCOSO (Chile), on “diplomatic protection”, said the articles dealt with secondary and not primary norms.  Natural, as well as legal persons should be dealt with, and only diplomatic protection should be considered, not the functional protection.  The draft articles should reflect that diplomatic protection was a right possessed by a State.  The term “continuous nationality” should make clear that it referred only to the time the injury was suffered and when the proceedings were brought.  The provision had been included only to prevent a person changing nationality to get diplomatic protection from a more influential State.  Stateless persons and refugees should be covered.

On unilateral acts, he said work, so far, had dealt only with State practice.  Gathering that information in the form of doing academic research could overcome the resistance of States to disclosing their practice.  A definition of unilateral acts should be formulated, including the author, effect and reaction.  A working group should be established to examine the practice gathered so far and continue the work.  On reservations to treaties, there should be a definition of objections to reservation.  The term was used in the Vienna conventions, but was not defined there.  An objection should not have the ability to preclude the intention of treaty.

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