Sixty-first General Assembly

Sixth Committee

12^th & 13^th Meetings (AM & PM)

ASSEMBLY’S LEGAL COMMITTEE APPLAUDS WORK OF INTERNATIONAL COURT OF JUSTICE

ON SIXTIETH ANNIVERSARY; PRESIDING JUDGE REVIEWS RECENT ACTIVITIES

Debate on Law Commission Report Continues; Further Topics Discussed

The Sixth Committee (Legal), in two meetings today, approved by acclamation a draft resolution on the commemoration of the sixtieth anniversary of the International Court of Justice, by which the General Assembly would solemnly commend the Court, express its appreciation and stress the desirability of finding ways to strengthen it.

By the text, approved in the presence of the President of the International Court of Justice, Judge Rosalyn Higgins, the General Assembly would encourage States to continue considering recourse to the Court by means available under its Statute and to accept its jurisdiction.  States would also be called upon to strengthen the Court’s work, including by supporting the Secretary-General’s Trust Fund to assist States in settling disputes through the Court.  Finally, the Assembly would stress the importance of promoting the Court’s work, including through public awareness activities, to widen perception of the Court’s role in the peaceful settlement of disputes.

Judge Higgins said she was very moved that the action on the resolution, regarding support for the Court, was being taken at a time that coincided with her visit to United Nations Headquarters.  She said the gesture would also be appreciated by her colleagues in The Hague, especially on knowing that the action had been taken by “colleagues in law” in New York.

Addressing the Sixth Committee earlier, Judge Higgins said the Committee’s work on the development and codification of international law was of the highest importance and relevance to the International Court of Justice.  The Court closely followed the Committee’s activities through its publications and press releases.  She said the Court’s work was accessible to all, via its website, an updated, expanded and interactive version, of which would be launched in the next few months.  The Court’s activities were also set out in its annual reports.

In another action, the Chairman of the International Law Commission, Guillaume Pambou-Tchivounda, introduced two more chapters of its report on “Shared natural resources” and “Responsibility of international organizations”.  He said that when the Commission began its work on the shared natural resource topic of transboundary aquifers barely three years ago, there were concerns over the relative dearth of State practice in that important field.  Since then, though, there had been an increased awareness of the importance of transboundary groundwater resources and States were taking a comprehensive cooperative approach to their utilization, protection and management of aquifers.

Argentina’s representative told the Committee that the final draft articles on the law on transboundary aquifers could form a framework convention and serve as a basis for subsequent agreements or other detailed agreements on States’ management of one or more transboundary aquifers or aquifer systems located in their territories.

Speaking on the responsibility of international organizations, Austria’s representative called for a typology of organizations to cover elements such as their functions, legal and political nature, recognition as a legal entity, degree of independence from States, powers and status.  He said that such typology could, at least, facilitate the reference to the international organizations dealt with in the draft articles.

Denmark (speaking for the five Nordic countries) called for further examples of practice and case law to be provided to the Commission’s Special Rapporteur on the topic of responsibilities of international organizations.  Careful consideration should be given to the role and functions of organizations in international cooperation.

Calling the Commission’s report an extremely important source for jurists, Morocco’s representative said the Commission’s last session had been particularly productive on the draft articles concerning diplomatic protection and on the draft principles on international liability in cases of transboundary harm.  The Commission’s work on shared transboundary aquifers was also notable.

While he agreed with the draft principles on international liability in case of loss from transboundary harm on a general and preliminary basis, Nigeria’s delegate said more time should be devoted to an in-depth consideration.

Norway’s representative described the draft principles on transboundary harm as an important accomplishment in the development of international law in relation to civil liability.  Liability rules could play an important role, both for compensation to the victims and in providing an incentive for prevention of damage.

India’s delegate also welcomed the Commission’s approach in addressing the topic, saying the draft should be general and residual, with enough flexibility for States to fashion specific liability regimes for particular sectors of activity.  The scope of the topic and the triggering mechanism should be the same as that of ‘prevention of transboundary harm’.

Also speaking on the International Law Commission report were the representatives of Canada, Switzerland, Mexico, Cuba, Pakistan, Finland (on behalf of the European Union) and Ireland.

An official of the International Federation of Red Cross and Red Crescent Societies also spoke.

The Committee will meet again on Monday, 30 October, at 10 a.m., to continue its examination of the International Law Commission report.

Background

The Sixth Committee (Legal) met this morning to continue its examination of the annual report of the International Law Commission, with a specific focus, at this time, on the chapters covering draft articles on diplomatic protection, and draft principles on international liability in case of loss from transboundary harm arising from hazardous activities not prohibited by international law.

The Committee was also expected to receive an address from the President of the International Court of Justice and to take action on a draft resolution commemorating the sixtieth anniversary of the Court.

In the draft resolution (document A/C.6/61/L.6), the General Assembly expressesitsappreciationto the Court for the measures it adopted to operate an increased workload with maximum efficiency.  It encouragesStates to continue considering recourse to the Court and callsuponthemto consider means of strengthening the Court’s work, including by supporting the Secretary-General’s trust fund to assist States in the settlement of disputes through the International Court of Justice on a voluntary basis, in order to enable the fund to carry on and to strengthen its support to the countries which submit their disputes to the Court.

Statements

DONALD MCRAE (Canada), responding to the Commission’s invitation for comment, said his country supported consideration of the topic “most-favoured-nation clause” in the Commission’s long-term programme of work.  He said the situation today was different from 1978, when policy differences had prevented the adoption of draft articles on the subject.  Developments since then had created an environment where consideration of the topic would now be more fruitful.  The Commission, he said, would be focusing on practical matters of economic importance to States.  An examination of the ‘most-favoured-nation’ principle involved a study of how different branches of international law related to each other.  In a sense, he added, it was a specific, or more concrete, application of the Commission’s work on the topic of fragmentation.

He noted with satisfaction that the Commission had concluded its work on the second aspect of the topic of international liability in respect of transboundary harm arising out of hazardous activities.  That aspect dealt with the allocation of loss arising out of such activities and the question of appropriate responses.  It was an important achievement, he said, and Canada would study the draft principles and their associated commentary carefully.  He noted that, wisely in his view, the draft principles set out obligations of compensation and response, rather than seeking to resolve the more theoretical issue of the status of the notion of “precaution”.  He said the ultimate treatment of the principles advanced by the Commission in State practice might resolve that issue.

OYVIND HERNES ( Norway), speaking also for the other Nordic countries ( Sweden, Iceland, Denmark and Finland), said the draft principles (on transboundary harm) were an important accomplishment in the development of international law in relation to civil liability.  They provided a supplement to State responsibility for damage, particularly to the environment of other States, and areas beyond the limits of national jurisdiction, as well as a supplement to the rules aimed at prevention.  Liability rules could play an important role, both for compensation to the victims and in providing an incentive for prevention of damage.  At this stage, it was important to remember that the principles were general in nature, and that effective implementation required detailed rules and regulations, both nationally and internationally. It would have been quite difficult for the Commission to proceed further, and, therefore, greater cooperation between States in various forums was necessary.

He stressed the importance of the “polluter pays” principle as guidance for implementation, and when applying the threshold of “significant” damage.  The term provided for a dynamic standard, and its interpretation should take into account scientific development, the precautionary principle and the development of international environmental law.  He recalled the Nordic proposal last year, that the draft instrument on prevention of transboundary harm should be adopted in conjunction with the adoption of the liability principles.

KARIM MEDREK ( Morocco) said the International Law Commission report was an extremely important source for jurists.  The last session had been particularly productive in the action regarding the draft articles on diplomatic protection and the draft principles on international liability in cases of transboundary harm.  Also notable was the Commission’s work with regard to the first reading of draft articles on shared transboundary aquifers.

Reviewing the articles on responsibility of States for transboundary harm, he said the text dealt well with the issue and took into account the principles of customary international law.  The second reading had made possible significant improvements in the draft, leaving open the appropriate elements and yet nuanced with regard to the substance.  For example, article 8 on international criteria for stateless persons and refugees covered persons who were not covered by the convention on refugees and its protocol.  The articles on shareholders were generous, perhaps overly so.  And while the articles were welcome, it would be advisable to delay adoption of the articles on diplomatic protection to enable States to consider them more in depth.

Turning to the articles on international liability, he said the Commission’s work on the matter since 1980, with the preamble and eight draft principles adopted, had been a significant accomplishment.  The draft principles were of limited scope, but were a useful guide that offered appropriate guidance to States.  They also covered the most important elements of individuals receiving prompt and adequate compensation in cases of harm and effects on the environment.  As to the form, there was some ambiguity to certain aspects of the provisions, but the Assembly should adopt the principles.

Concluding, he affirmed support for the Commission, and called on it to continue its important efforts to elaborate and codify international law.  He also called on the Assembly to continue its tradition of bringing to the Law Commission any requests with regard to codification.

MANORANJAN BHAKTA ( India) endorsed the Commission’s approach to the topic of diplomatic protection, noting that the draft articles affirmed the customary rule of international law, that it was the right, rather than obligation, of the State to exercise that protection.  He observed that draft article 8 (stateless persons and refugees) departed from the traditional rule and allowed a State to exercise diplomatic protection in respect of such persons if they were “lawfully and habitually” resident in that State.

He said the requirement of both lawful residence, and habitual residence, set a high threshold.  He reiterated that the definition of refugee should be left to be resolved under proper law governing the matter.  He noted the importance of the issue of continuous nationality dealt with in article 5.  In case of change of nationality, he observed, the dates and periods relevant to establish continuous nationality were critical to the subject of diplomatic protection.  India agreed that the draft articles could form the basis of a binding legal instrument and could be taken up next year, along with the topic on State responsibility, since the two topics were closely linked.

On international liability, India’s representative welcomed the Commission’s basic approach in addressing the issue, namely, that the draft should be general and residual, with enough flexibility for States to fashion specific liability regimes for particular sectors of activity.  In his view, the scope of the topic and the triggering mechanism should be the same as that of “prevention of transboundary harm”.  India believed that in a scheme covering either liability or a regime on allocation of loss, the primary liability should be of the operator.  It also believed that “strict/absolute liability regimes” were the preferred regimes for hazardous activities.  Along with the operator, he said, there were a number of other actors who should share the responsibility.  He welcomed the adoption of the text of the draft principles on allocation of loss by the Commission, and hoped that they would be implemented at the national and international levels.

S.E.M. PAUL SEGER ( Switzerland) said the draft articles were the results of the important work carried out by the Commission.  They were relevant in contemporary international law.  With commercial companies operating more internationally, the exercise of diplomatic protection over them had become more difficult.  Experience also showed that identifying the nationality of a corporation was nowadays becoming more complex.  With globalization, businesses saw themselves more and more as multinationals or transnational entities whose allegiance to a particular State was subject to change, and was sometimes guided by economic opportunism.  He wondered to what degree a State should continue to defend the interests of companies and businesses whose national character had more or less disappeared.

He said his delegation saw diplomatic protection not as an obligation, but a right.  The customary nature of the right to diplomatic protection could not be challenged.  An international convention on diplomatic protection should not in any way weaken that right.  The draft articles should be more specific about the immutability of customary law.

He said Switzerland supported the proposal to extend diplomatic protection to stateless persons and refugees.  The requirement of legal residence for diplomatic protection seemed superfluous because, in practice, most States would grant diplomatic protection anyway.  The Swiss delegation shared the view of others, particularly Austria, that a period of reflection would be useful to deepen discussion on both substance, and form, of the draft articles on diplomatic protection.

JOEL HERNANDEZ GARCIA ( Mexico) said the work on diplomatic protection was important for the continued development of international law.  The draft articles were appropriate, and a convention based on them should be elaborated.  A working group should be established towards that end.

On the question of diplomatic protection, he said the question was a central foreign policy concern for his country.  Reviewing specific articles, he said he supported the use of domestic resources with regard to local remedies, but the burden of proof for the exhaustion of those local remedies must be up to the demanding party.  Article 1, containing the definition and scope of the concept, was drafted so as to leave open the question of whether the State acted on its own, or on behalf of the individual, meaning the individual had become the holder of rights under international law.  Keeping in mind that the right to diplomatic protection could be limited by other norms of international law, such as by treaties, a working group should be formed to examine such aspects more closely.

On international liability for acts not covered by international law, he said the topic was extremely complex, but important, for dealing with the consequences of harm coming from such acts, particularly in cases that resulted in harm to the environment, or to natural resources.  Regardless of who was responsible, the responsibility had to be determined and assigned.  A convention should be elaborated based on draft articles instead of principles.  Liability should be addressed in an integrated manner and with adequate attention given to protecting the environment.  Responsibility should be assigned when States did not live up to obligations, and responsibility of the State of origin should also be included.  An international regimen should be developed on degree of responsibility.

Turning to the matter of expulsion of aliens, he said the work done so far was a good basis for moving ahead in protection of rights, but all aspects of the question must be carefully considered and covered.  Some elements of the question were covered by existing international norms and principles, such as the right of States to expel those they perceived as threats to their national security.  Other elements, however, were controversial and had not yet been adequately addressed through international law.

He said the Commission’s consideration of the issue should be based on the principle of lex specialis, with general principles elaborated based on treaties that provided the guidance.  Three considerations should inform the work:  the human right of migrants or victims of trafficking with regard to returning to their homes; respect for due process, and respect for the rights of individuals with protection of human rights paramount.  While States did have the right to expel aliens without any other justification, that right was applicable in very limited cases, which rendered the usefulness of the principle questionable.

BAYO OJO (Nigeria) said the definition in article 1 of the draft articles on diplomatic protection ought to bring out the exceptions provided in articles 3 (2) and article 8, pertaining to persons for whom a State could invoke diplomatic protection.  He suggested the inclusion of the phrase “or to other persons in accordance with the present draft articles” after the word “State” in line four of draft article 1.  He said that without the phrase, article 1 would appear inconsistent with both article 3 (2) and article 8.  A redrafting of article 8 (2) might be required.  The article was excluded by article 8 (3) in cases where the internationally wrongful act was that of the State of nationality of the refugee.  He said that, although he understood the reasoning behind the article, it might amount to double jeopardy for a refugee whose State of nationality from which he flees had flagrantly and wantonly breached his fundamental freedoms.  He also said a redrafting of article 9 was needed for balance.

He said Nigeria agreed with the draft principles under the topic of international liability for injurious consequences, arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities), on a general and preliminary basis.  More time was needed for the in-depth consideration of the draft principles.  On the future topics of the Commission, he said the question of the immunity of State officials from foreign jurisdiction had attracted a great deal of attention, and there was need for careful consideration of the topic.

ANET PINO RIVERO ASESORA ( Cuba) said her delegation attached great importance to the draft articles as a significant contribution to the development of international law.  She noted that scattered laws on the topic had been brought together under the draft articles, and that article 1 stated clearly that it was a right for all States to seek diplomatic protection for its nationals.  Cuba supported article 5, which dealt with the issue of continuous nationality of a natural person.

She said the wording of article 8 (stateless persons and refugees) was important.  There was a growing interest in contemporary law about such a category of persons.  Article 14 (exhaustion of local remedies) was important.  Article 19 was acceptable, since it noted that the views of injured persons should be taken into account.

ASAD MAJEED KHAN ( Pakistan) said the work on diplomatic protection was a step in the right direction, but it needed more consideration.  For example, the definition in article 1 was inadequate.  Some articles set up conditionalities that were inappropriate while others contained ambiguities.  The article on multiple nationality and claim against a State of nationality needed more elaboration, as did the article on recommended practice.  With regard to the references on exhaustion of local remedies, it should be kept in mind that States had different levels of local remedies and aspects of those differences should be given more consideration.  More time should be devoted to clarifying the articles on diplomatic protection before the elaboration of a convention was considered.  For now, the Assembly should take note of the articles and leave further work on the matter for later.

On international liability, he said the work on transboundary harm provided a set of draft principles that served as a good guideline for further work, particularly in pursuing elaboration of a text on protection of the environment and of natural resources.  The compensation mechanism provided for in the articles was satisfactory, but a third party damage mechanism should also be included to cover disputes over responsibility.  A fund should be established in relation to the question of compensation, but the Assembly should adopt the principles now and States should begin to implement them.

KATRIEN BEECKMAN of the delegation of International Federation of Red Cross and Red Crescent Societies to the United Nations, spoke on the law commission’s long-term programme work, with particular reference to the topic of protection of persons in the event of disasters.  She said that, between 1980 and 1990, there were 2,073 disasters affecting 1.3 billion people, and causing an estimated damage of over $186 billion.  She said that in the first six years of the new millennium, the figures had already risen to 3,520 disasters, affecting 1.7 billion people with damage exceeding $450 billion.  As the largest humanitarian network, the Federation had always been committed to ensuring that those affected by disasters received the necessary relief in a timely, effective and well-coordinated manner.  She said the Federation had long been committed to the development and promotion of standards, guidelines and recommendations in that field.

In 1977, it was actively involved in the shaping of “Measures to Expedite Emergency Relief”, adopted by both the International Conference of the Red Cross and Red Crescent, and the United Nations Economic and Social Council.  In partnership with major non-governmental organizations, they adopted, in 1994, the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief, which was later endorsed by Governments and national societies together at the twenty-sixth International Conference of the Red Cross and Red Crescent.

She said the Federation’s International Disaster Response Laws, Rules and Principles Programme sought to reduce the vulnerability and suffering of people affected by non-conflict disasters through raising awareness, and promoting the implementation and strengthening of the laws, rules and principles that ensured timely, adequate and efficient international response to disasters where international involvement was required.

She said the Federation welcomed the International Law Commission’s decision to take up the question of protection of persons in the event of disasters, and added that, in its recommendations to the 2007 International Conference of the Red Cross, the Federation would consider any inputs from the Commission.  Its International Disaster Response Laws, Rules and Principles Programme would continue to be one of its priorities over the coming years, and she assured the Sixth Committee of the Federation’s support to the International Law Commission in its future work on the topic.

Statement by International Court of Justice President

The Chairman of the Sixth Committee, JUAN MANUEL GOMEZ-ROBLEDO ( Mexico) welcomed the President of the International Court of Justice, Judge Rosalyn Higgins.  He said Committee members knew of her great interest in their work and that she followed it closely.  The Committee members, likewise, were keen observers of the Court’s activities and greatly admired its work.  The decisions of the Court were invaluable as a means for the determination of rules of international law.  He congratulated the Court on its achievements in the peaceful settlement of disputes among States.  He said the Court’s advisory role also had been invaluable for the United Nations.  The Committee looked forward to its continuity and its lasting contribution to the cause of international law.

Judge Rosalyn Higgins said the Sixth Committee’s work on the development and codification of international law was of the highest importance and relevance to the International Court of Justice.  The Court closely followed the Committee’s activities through its publications and press releases.  She said the Court’s work was accessible to all via its website, a new updated, expanded and interactive version of which would be launched in the next few months.  The Court’s activities were also set out in its annual reports.

Recalling that she presented the Court’s current annual report to the General Assembly yesterday, she said that during the period under review, the Court made an order with respect to a request for provisional measures in one case, held public hearings in two cases, and rendered judgments in two further cases, both of which were particularly complex and fact-intensive.  It would be possible next year to handle a larger number of cases.

Judge Higgins said that the determination of an appropriate remedy was integral to the Court’s role in the peaceful settlement of a dispute.  The remedy provided the link between the judicial phase and the post-judicial implementation of the judgment.  It was the concrete outcome of the litigation between the parties, and one which they would have to explain to their domestic audiences.  There was only a general reference to remedies in the Statute of the Court.  She referred to the relevant provision of the Statute (Article 36 (2d) and said that, subject to any specific remedies requested in a special agreement, the issue of remedies was, in principle, left to the discretion of the Court.  She said that keen followers of the Court were often very interested as to why each dispositif was formulated in the way it was.  It was not always appreciated, she said, that to a significant extent, the Court was in the hands of the parties to cases before it.  The final submission was put to the Court on the closing day of hearings and it was those to which the Court must reply.

She gave examples of cases in the field of remedies that the Court had dealt with in recent years.  She said findings of illegal conduct and the fashioning of remedies were all ‘part of the law of responsibility’.  But what separated a finding of illegal conduct from a distinct finding of responsibility, was that the latter required separate pleadings and a detailed examination of the law of responsibility, including the work of the International Law Commission.  She said those developments in the realm of remedies added to the complexities of the Court’s work.  The field of remedies had expanded far beyond the issuance of simple declarations of a breach of an international obligation.  She said the Court must clarify its jurisdictional basis, disentangle the concepts of illegality and responsibility, and work towards a realistic approach to remedies that best utilized the strengths of the International Court of Justice and served the interests of the parties.

Interactive Dialogue

In a brief, interactive exchange, delegations asked questions on the Court’s working methods and mechanisms, particularly with regard to jurisdiction, advisory functions and resources for the complex determinations involved with remedies and compensations.  Where was the line before the Court trespassed into the domestic sphere of States?

Judge Higgins said the Court often functioned like a domestic court, in which parties may determine that their interests were better served by settling their dispute, rather than awaiting a determination by the Court.  Such an advisory role in disputes, remedies and compensation could be an interesting function for the Court.  A provision was included in the Court’s Statute for the use of experts in situations where compensation was not determined bilaterally.

The whole question of remedies or intrusion into the domestic realm was sensitive, she said, particularly with regard to criminal cases.  The court dealt with such issues as an inherent matter of its discretion, addressing the question in light of what the parties had requested of the Court.  The Court’s policy was to interfere as little as possible when it came to considering jurisdiction with regard to a breach and remedy.  The question centred more on issues of international compatibility, than on constitutionality.

Taking part in the exchanges were the representatives of Denmark, United Kingdom, Republic of Korea, Mexico and Jordan.

Action on Draft

The representative of Egypt then introduced a draft resolution on commemoration of the Court’s sixtieth anniversary (document A/C.6/61/L.6).  By that draft, he said, the Assembly would solemnly commend the Court, express its appreciation and stress the desirability of finding ways to strengthen the Court.  It would encourage States to continue considering recourse to the Court by means available under its Statute and to accept the Court’s jurisdiction.  States would also be called upon to strengthen the Court’s work, including by supporting the Secretary-General’s Trust Fund to assist States in settling disputes through the Court.  Finally, the Assembly would stress the importance of promoting the Court’s work, including through public awareness activities, to widen perception of the Court’s role in the peaceful settlement of disputes.

The representative of Uruguay raised a technical question on the translation.

The resolution was approved without a vote, by acclamation and to applause.

Ms. Higgins said she was very moved that the action on the resolution regarding support for the Court was being taken at a time that coincided with her visit to Headquarters.  She said the gesture would also be appreciated by her colleagues in The Hague, especially on knowing that the action had been taken by “colleagues in law” in New York.

ILC Report: Further Topics

When the Committee met again this afternoon, GUILLAUME PAMBOU-TCHVOUNDA, Chairman of the International Law Commission, introduced two topics in Part Two of the Commission’s report; shared natural resources and responsibility of international organizations.

He said this year the Commission re-established the working group on shared natural resources to continue the consideration of the draft articles submitted by the Special Rapporteur in his third report.  The Commission adopted, on first reading, a set of 19 draft articles on the law of transboundary aquifers.  He then provided an overview of the draft articles, highlighting a few of their major elements.  The draft articles were divided into five parts entitled; “Introduction”; “General principles”; “Protection, preservation and management”; “Activities affecting other States”; and “Miscellaneous provisions”, respectively.  He said the Commission had yet to take a decision on the final form of its work, and had, therefore, purposely excluded any draft articles that would prejudice such a decision in the future.

He noted that Part V of the report contained draft articles 15 to 19. “Scientific and technical cooperation with developing States” was provided for in draft article 15.  Draft article 16 on “Emergency situations” set forth specific notification and cooperation requirements for emergency situations.  He said it was considered that States should be allowed to derogate from certain general principles applicable to the utilization of groundwater resources to alleviate the impact of an emergency situation to affected individuals.  Draft articles 17 and 18 on “Protection in time of armed conflict” and “Data and information concerning national defence or security” were substantially similar to corresponding provisions in the 1997 Watercourses Convention.  He noted that there was some discussion within the Commission whether it was necessary or useful to include those provisions, and added that specific comments on those issues by Governments would be most welcome by the Commission.  He said that draft article 19 on “Bilateral and regional agreements and arrangements” would encourage States to enter into such agreements and arrangements, while bearing in mind the interests of other States, whose rights might be substantially or adversely affected.  He said the Commission did not include provisions concerning settlement of disputes, as relating to relationship between the draft articles and pre-existing or future binding instruments.

Introducing the chapter on responsibility of international organizations, he said the Commission adopted 14 draft articles with commentaries.  Draft articles 17 to 24 dealt with, respectively, “consent”, “self-defence”, “countermeasures”, “force majeure”, “distress”, “necessity”, “compliance with peremptory terms” and “consequences of invoking a circumstance precluding wrongfulness”.  Drafts 17, 20 and 21 were modelled on the corresponding articles on Responsibility of States for internationally wrongful acts.  The Chairman went on to give details of the articles.

He invited comments of Governments and international organizations on two questions: a) Do members of an international organization that are not responsible for an internationally wrongful act of that organization have an obligation to provide compensation to the injured party, and should the organization not be in a position to do so?; and (b) According to article 41, paragraph 1, on responsibility of States for internationally wrongful acts, when a State commits a serious breach of an obligation under a peremptory norm of general international law, the other States are under an obligation to cooperate to bring the breach to an end through lawful means.  Should an international organization commit a similar breach?  Are States and international organizations under an obligation to cooperate to bring the breach to an end?

MARJA LEHTO (Finland), speaking for the European Union on the responsibility of international organizations, said she was concerned about the feasibility of including all international organizations under the terms of one draft, since such organizations were highly diverse.  The European Union and Community -– examples of international organizations -- were rather specific in nature; the Community was characterized by the direct applicability of Community law in Member States and the supremacy of Community law over national law.

The draft articles 17 to 24, on circumstances precluding wrongfulness followed, closely the model of the relevant articles on State responsibility.  In some cases, that might not be correct and comments might be needed.

When discussing draft article 17 on “consent”, the Special Rapporteur had referred to invitations issued from States to the United Nations to verify their election process.  A wide variety of European Union civil crisis management missions existed, for which the Presidency of the Union and the European Commission were jointly responsible.  They were also based on the explicit consent of the country concerned.  Accordingly, draft article 17 was of “vital importance” for the Union’s external relations activities, which could otherwise be seen as undue interference in domestic affairs of third countries.

On article 22 on “necessity”, she said the Special Rapporteur had reported that most statements had been in favour of including such an article among the circumstances precluding wrongfulness.  However, some European Union Members were sceptical about that, stressing the lack of relevant practice, risk of abuse or need to provide stricter conditions than those applying to States.  The International Law Commission had tried to take those points into consideration.  Some of the wording in the article could be seen as a safeguard against abuse, and a stricter condition than the one applying to States under article 25 of the articles on State responsibility.  It remained to be seen whether the stricter one could muster the necessary support.

Despite those challenging questions, the European Union could broadly go along with draft articles 17-24 on circumstances precluding wrongfulness.  However, her delegation had serious worries about the new draft articles 28 and 29 in the chapter on responsibility of a State in connection with the act of an international organization.  Her delegation hoped the law commission would take note of those concerns.

PETER TAKSOE-JENSEN ( Denmark), speaking also for the other Nordic countries on the two topics, said the Commission had again produced a very thorough and analytical report.  The useful descriptions in the Special Rapporteur’s report of the practice and case law of international organizations on responsibility provided a helpful overview of the complex subject.  It set the practical framework for the Commission’s work.

He said the Nordic countries shared the hope that further examples of practice and case law would be provided to the Special Rapporteur and to the Commission by States and organizations.  They supported the continued reliance on –- and reflection of -– the provisions on State responsibility in the elaboration on the draft articles, dealing with such responsibility.  They said the Commission had itself generally recognized that the nature of international organizations merited a number of modifications.  Careful consideration should, in that respect, be made of the particular role and functions of organizations in international cooperation.

The Nordic countries, he continued, were broadly in agreement with most of the provisions of articles 17 to 30, but added that some gave rise to comments.  They recognized that draft article 22 on “necessity” was the result of a compromise between varying views expressed in the Commission and in the Sixth Committee.  They believed that further thought could have been given to whether it was helpful to limit the availability of “necessity” to situations concerning essential interests of the international community as a whole.  They said that, as long as the organization had the function to protect that interest, it would seem to them that essential interests of Member States, and the organization itself, could be a basis for an international organization invoking necessity.

He said they had had very preliminary comments on the questions posed by the Commission.  The first question concerned whether there existed a subsidiary obligation for States to provide compensation to the injured party, should the international organization not be in a position to do so.  The second was whether States, and also other international organizations, would be under an obligation to cooperate to bring to an end a breach of an obligation under a peremptory norm of general international law.

With regard to the first question, the Nordic countries said they would be hesitant to consider that to be a general principle of international law.  As mentioned in the Commentary to draft article 29, case law, such as the Tin Council cases and other expressions of the state of the law, had generally been reluctant to find that there was a principle of such subsidiary responsibility for member States of an international organization.  It would seem all the more questionable to generally establish an obligation to compensate, where the State was responsible for the internationally wrongful act.  Where the organization was not in a position to provide compensation for its internationally wrongful acts, the question of member States’ obligation to contribute to compensation would most likely be governed by the constituent document of the organization, including the particular financial obligations member States had taken upon themselves in that regard.

For the second question, they believed that the most appropriate approach would be to echo article 41, paragraph 1 of the articles of responsibility of States.

FERDINAND TRAUTTMANSDORFF ( Austria) said that, when crafting a law on the responsibility of international organizations, a clear distinction must be made between the legal positions of the member States that controlled those organizations, third States that had recognized the international organization and third States that had explicitly refused to do so.  Creating a typology of different international organizations could also prove useful, covering elements like the function of international organizations; their legal and political nature; their recognition by third States or the community of States as a legal entity; the degree of independence of their actions from control by the member States; their powers vis-à-vis the member States; and the status of member States within the organization.  Indeed, lack of clarity on the scope of international organizations, as covered by the 1986 Vienna Convention on the Law of Treaties between States and International Organizations, or between international organizations, was one of the main reasons why that Convention had not yet entered into force, even 20 years after its adoption.

Turning to the draft article on self-defence, he said references to the “principles of international law embodied in the [United Nations] Charter” might lead to misunderstandings, because an international organization did not necessarily derive its right to self defence from that of the State.  Regarding the principle of necessity, international organizations should not be allowed to invoke it as widely as States.  However, Austria found value in the language adopted by the Commission on “essential interest of the international community as a whole”, since it was designed to raise the threshold for excluding the wrongfulness of an act by an international organization.  The notion of “essential interest”, without further qualification, lacked clarity.

On the responsibility of a State in connection with the act of an international organization, he said the article on “aid or assistance” was not adequate, because it would provide sending States, with reason and justification, to interfere with the command structures of the international organization, such as the United Nations.  Similarly, further discussion was required on the veto power of member States for preventing the unlawful action of international organizations, and the Commission should clarify further the relation between “responsibility” and “liability” when delineating the responsibility of a State member for wrongful acts committed by the international organization.

Finally, on shared natural resources, he said an attempt to elaborate a convention on transboundary aquifers might be burdensome and not lead to a widely accepted, legally-binding international instrument in reasonable time.  Also, the draft articles might need to express more clearly that the Convention only covered groundwater and freshwater resources, and attention should be paid to the relationship between the current draft articles and the 1997 Convention on Non-navigational Uses of International Watercourses.

SEAN MCDONALD (Ireland), speaking on the responsibility of international organizations, supported the inclusion of draft article 22 on “necessity”, but was concerned that the article, in its current form, failed to adequately protect member States’ essential interests.  A State might choose to entrust certain functions to an international organization, but that did not mean it no longer retained essential interests in relation to those functions.  States might be reluctant to transfer powers to an international organization if their interests were not afforded sufficient protection.  Ireland, therefore, supported the view of others that an international organization should be entitled to invoke an essential interest of its member States when claiming necessity.

Further, Ireland was concerned that the article did not adequately reflect the present reality of movement towards international integration, as it made an organization’s ability to invoke necessity dependant on its functions.  Today, organizations had been entrusted with a narrow range of functions, a situation for which the article might have failed adequately to accommodate.  Current wording of draft article 22 could, in certain circumstances, leave the organization without recourse to the claim of necessity in order to safeguard an imperilled essential interest.   Ireland welcomed the Special Rapporteur’s observation that, in determining the essential interests which an organization had the function to protect, reference only to the constituent instrument might be too restrictive.  Conversely, not all functions conferred on an organization in its constituent instrument were to be regarded as essential interests.

He said the scope of the draft article 28 (international responsibility in case of provision of competence to an international organization) was inadequately defined.  However, he supported efforts to make the provision for member States to incur responsibility for acts of international organizations in certain circumstances.  The draft’s insistence on the provision of competence relating to the circumvented obligation may unduly narrow the article’s scope, where a restrictive understanding of that requirement was employed.  He welcomed the Commission’s comments on the draft, which provided that the use of the term “circumvention” was intended to exclude international responsibility arising when the act of the organization had to be regarded as an unwitting result of providing the international organization with competence.

On a practical level, Ireland believed that the determination of whether a State had provided an organization with competence in relation to an obligation could prove problematic.  However, his delegation’s primary concern was the absence of any requirement of intent in article 28, which would limit the potential scope of the draft article.

OSVALDO MARSICO ( Argentina) said the final draft articles on the law on transboundary aquifers could form a framework convention and serve as a basis for subsequent agreements or other detailed agreements on States’ management of one or more transboundary aquifers or aquifer systems located in their territories.  Concerning draft Article 2, he said he agreed with the definitions of “aquifer” and “aquifer system” incorporated by the Special Rapporteur in his third report and retained by the working group.  He supported including, in draft article 3, an express affirmation of the principle of State sovereignty over the part of a transboundary aquifer or aquifer system located within its territory.  That clause was particularly significant because it gave States’ primary responsibility of the rational use, management and preservation of aquifers in their territories.  He also fully approved of the criteria used to develop the principles and rules proposed in Articles 4 through 19 of the draft.

He said he supported the Commission’s drafting of articles 17, 18 and 20 through 24 on circumstances precluding wrongfulness in the context of the responsibility of international organizations for internationally wrongful acts.  Draft articles 25 through 29 addressed the sensitive issue of States’ responsibility in connection to other States’ acts.  Responsibility could be attributed to a member State only as an exception to the rule that an organization had a legal personality that was different and separate from those of its members.  The conditions and scope of any concurrent or subsidiary responsibility of a member State would depend on the organization’s specific characteristics, constituent instrument, established practice and other modalities defined as “rules of the organization” in subparagraph 4 of article 4.  He said he had no comment on the proposed norms in draft articles 25 through 27.

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