Sixty-second General Assembly

Sixth Committee

20^th & 21^st Meetings (AM & PM)

LEGAL COMMITTEE DISCUSSES ACCOUNTABILITY OF INTERNATIONAL BODIES

FOR WRONGFUL ACTS, RESPONSIBILITY FOR COMPENSATION PAYMENT

 

In Continuing Review of Law Commission Report, Delegates

Also Debate Expulsion of Aliens, Armed Conflict Effect on Treaties

Given the diversity of international organizations and the differences in their nature, structure and objectives, a general approach should be adopted towards drafting a legal instrument on their responsibilities for any wrongful acts they committed, the Sixth Committee (Legal) was told today, as it continued debate on the work of the fifty-ninth session of the International Law Commission.

The representative of Cyprus said the focus should not be on special regimes, but to find an appropriate and effective legal methodology to deal with wrongful acts, resulting from actions or omissions of entities with an international legal personality other than States.  A “logic of exceptions” to accountability must not be allowed to enter and permit organizations to evade their obligations.

On the question of compensation or reparation for wrongful acts, the representative of Switzerland said that whenever international organizations engaged in risky activities, members of those organizations should consider establishing separate reserves or funds for the purpose of providing compensation in the event it was needed.  Members might also ask the organization to underwrite insurance to cover certain risks.

Also today, in the continuing debate on the question of expulsion of aliens, Turkey’s representative said selective approaches in the fight against terrorism had led to some States not regarding perpetrators of terrorist acts as a direct threat to their public order or national security.  Perpetrators of terrorist offences in one State, she said, might conduct their affairs carefully in another State to achieve safe haven.  Omitting explicit mention of terrorism risked widening an already existing loophole that already existed in the fight against terrorism.  A provision in the draft articles on the subject should take account of this.

On the third topic in the debate on the Commission’s report today, a number of speakers, including the delegate of the Netherlands, called for including non-international conflicts in the definition of “armed conflict” without distinguishing between types of internal armed conflicts based on intensity.  A number of delegates, including Poland’s, called for using the term “outbreak of hostilities” in lieu of “armed conflict” as more representative of current reality.

Also speaking today were the representatives of France, United States, Indonesia, Hungary, Iran, Republic of Korea, South Africa, New Zealand, Greece, Russian Federation, Romania, Belgium, Belarus, Israel and Kenya.

The Observer for the European Community also spoke.

The Sixth Committee will meet again at 3 p.m. tomorrow, Thursday, to continue debate on the International Law Commission’s report.

Background

The Sixth Committee (Legal) met this morning to continue its consideration of the report of the International Law Commission on the work of its fifty-ninth session.  (For background, see Press Release GA/L/3329 of 29 October.)

Statements

ANDRZEJ MAKAREWICZ (Poland) said the two new topics proposed for the Commission’s new work programme -- “protection of persons in the event of disasters” and the “immunity of State officials from foreign criminal jurisdiction” -- fully deserved to be elaborated for stable relations among States and for the alleviation of human suffering.  He said he had doubts about the justification for reconsidering the topic, “most favoured-nation clause”; the clause had in the past two decades been increasingly utilized for the regulation of multilateral relations.  In most cases, they were governed by multilateral rules of the General Agreement on Tariffs and Trade and, since 1994, of the World Trade Organization.

Commenting on “other decisions” of the Commission, contained in chapter X of its report, he said Poland supported the restoration of the honorariums for special rapporteurs to facilitate their research work.  (The payment was discontinued under General Assembly resolution 56/272 of 27 March 2002.)  He also supported the view that an a priori limitation could not be placed on the length of the Commission’s documentation, research projects and reports of special rapporteurs because of their special significance in the process of the codification and development of international law.  He said former members of the International Law Commission should be invited to participate in activities to mark the sixtieth session of the Commission next year.  A special item, entitled “The sixtieth anniversary of the International Law Commission”, should be included in the agenda of the sixty-third session of the General Assembly.

EDWIGE BELLIARD ( France) said the next five years of the Commission’s new term would present opportunities for fulfilling the tasks entrusted to it.  She did not see any reason for deviation from the principles in State responsibility relating to internationally wrongful act.  Her delegation had rejected the idea of blaming a subsidiary body of an organization for a wrongful act of the organization.  On the effects of armed conflicts on treaties, she said there were many practical and juridical questions which should not be set aside.  Article 1 on the scope of the draft articles on the topic should cover international organizations, as well.  It was not necessary to adopt the provisions of the 1969 Vienna Conventions on the Law of Treaties.  The draft articles should be broadened and not confined to conventional State relations.  States not party to a treaty should also be covered.  Article 2, on the use of terms, should cover non-international conflicts, as well, and be merged with article 1.

On the topic of expulsion of aliens, she said it deserved detailed examination.  She expressed her reservation about the decision to include the item on expulsion of refugees, pointing out that the question was dealt with in the 1951 Convention relating to the status of refugees and the 1954 Convention covering stateless persons.  The question of the expulsion of foreigners in a situation of armed conflict -– where they could receive special treatment –- should not be studied by the Commission.  The proposed reformulated draft article 1 on the scope was better than the existing text.  The definition used in paragraph 2 of the draft was, under French law, reserved only for foreigners regularly on a territory of a State.  The definition should, therefore, be looked at again.  She also said that every country had a sovereign right to expel a foreigner.

JOHN BELLINGER ( United States) said the complex issue of expulsion of aliens involved other matters of national concern, including those associated with the formulation of immigration laws, national security and respect for the rule of law.  The Commission should carefully consider the legal and political issues the topic presented.  While the refined scope of articles 1 to 7 was welcome, the definition of the term “territory” could be more broadly interpreted than intended.  The State’s land territory, internal waters, territorial sea and airspace should be specified.

Many questions had arisen in the complex area of the effects of armed conflicts on treaties, he continued.  Defining “armed conflict” beyond the definition under the Geneva Conventions would be counterproductive and would cause confusion.  Also, if “occupation” and “armed conflict” were to be covered by the articles, they should be referred to separately as they were not synonymous in the law of armed conflict.  Article 6 bis on the applicable law in armed conflict should be deleted, and the text should spell out that international humanitarian law was the lex specialis that governed in armed conflict.

Continuing, he said he had reservations about the assumption that the articles on State responsibility were a good template for articles on responsibility of international organizations, since the two were fundamentally different, and the fact that they both had international legal personalities did not mean they should be subject to the same rules under international law.  States shared a fundamental set of qualities while international organizations presented great diversity in their structures, functions and interests, both as they related to States and each other.  Also, many of the State interests underlying the articles on State responsibility did not exist in the case of international organizations; he cited principles of sovereignty, citizenship and territorial integrity.  A number of articles presented specific problems, including the attempt to draw a distinction between “serious breaches” and other breaches.

Finally, regarding the Commission’s work programme, he said he welcomed the decision to study the protection of persons in the event of disasters and the immunity of State officials from foreign criminal jurisdiction.  The topics on the most-favoured-nation clause, and subsequent agreement and practice with respect to treaties, could be reconsidered.  The former was principally a part of treaty formation while the latter had the potential to be large in scope with many subject areas implicated.

LIESBETH LIJNZAAD ( Netherlands), in three statements on different topics, said the definition of expulsion in the relevant articles was too broad and could lead to confusion since the extradition of an alien was now also included.  The concept of expulsion should be redefined as the “permanent” obligation to leave without the possibility of later return, in order to distinguish it from extradition.  Further, the notions of “refugee” and “asylum-seeker” needed to be differentiated, since asylum status was determined by national legislation while the status of refugees was governed by international law.  In accordance with the 1951 Geneva Convention relating to the status of refugees, the issue was not expulsion but rather non-expulsion, since expulsion was permitted on only certain limited grounds.  Also, the wording should reflect the fact that asylum and statelessness were non-comparable situations and that the expelling State would perhaps have to intervene in finding a host State for a stateless person.  Collective expulsion of aliens should be prohibited, even in times of armed conflict.

Turning to the issue of armed conflicts and treaties, she said she welcomed the new article reaffirming the lex specialis character of the law in relation to human rights, and said it was right to refer to international customary law in relation to norms that maintained their legal force separately from the treaties affected by armed conflict.  Suspension or termination did not take place ipso facto and by operation of law, but the articles on invalidity, termination and suspension were sweeping, and an elaboration on their applicability would be welcome.  Further, the definition of “armed conflict” should include non-international conflicts and the set of rules governing all such conflicts must strike a fine balance between the interests of all involved, regardless of whether they were parties to the conflict.  Finally, distinguishing between types of internal armed conflicts based on intensity of conflict might prove unnecessary.

On the matter of responsibility of international organizations, she said the articles could follow those on responsibility of States, but they should not be mere duplicates.  In other observations, there was no need to specify an organization’s membership, and the article on reparations should be retained with a provision that sent a signal that members of international organizations would need to let the organization make full reparation for injury caused.  Further, the articles should contain a rule on breach of obligation similar to that for States, with the stipulation that only those organizations performing functions in the area where the breach had occurred were entitled to make claims for the breach.

Informal Interactive Dialogue

The Chairman, ALEXEI TULBURE ( Moldova), suspended the debate on the Law Commission’s report in order to allow for an informal interactive dialogue to be held between members of the Committee and of the Commission.

Resumption of Debate

When the Committee met again in the afternoon, it continued debate on the Law Commission’s report in relation to expulsion of aliens, effects of armed conflicts on treaties, and responsibility of international organizations, along with other decisions and conclusions of the Commission.

ADAM TUGIO ( Indonesia) said he supported the inclusion of the topic on “most-favoured clause” in the Commission’s agenda; clarification of the clause was of tremendous importance in light of recent developments in international trade relations, as reflected in the trend of building economic blocs.  Hopefully, such studies would contribute to furthering the interests of developing countries by enabling them to compete in the world market with greater fairness and, thus, narrow the socio-economic development gap between them and developed countries.

He said he attached great importance to the question of reservations to treaties and that he wished to emphasize that such a reservation was the right of any sovereign State to make.  A State could not be bound without its consent in any multilateral agreement.  However, the reservation should be conducted in accordance with the objective of securing the treaty’s integrity.  The Commission’s approach should not deviate from the basic principles of the 1969 Vienna Convention on the Law of Treaties, that the admissibility of reservations rested on the objective criteria that the purpose and object of agreement was a minimum threshold.

ISTVÁN HORVÁTH ( Hungary) said the two new topics for the Commission’s long-term work programme were of high importance, but the inclusion of new topics needed to be carefully examined with special regard to finalizing work on outstanding issues, including reservations to treaties.  Also, the question of expulsion of aliens should have been taken up by other institutions and United Nations bodies such as the Office of the United Nations High Commissioner for Refugees (UNHCR) or the Human Rights Council.

Reviewing the draft articles on the effects of armed conflicts on treaties, he called for replacing the outmoded term “state of war” with “state of belligerence” in draft article 2 on the definition of armed conflict.  Further, on article 6 bis related to the law applicable in armed conflict, he said a general article should be allocated to covering important matters such as human rights law, environmental law and the law applicable in armed conflicts.  Article 7 on the operation of treaties on the basis of “object and purpose” confirmed the existing customary rule of international law, namely that armed conflict not inhibit the operation of treaties in important matters such as protection of human rights and diplomatic relations, protection of the environment and watercourses, and other matters related to implementing and advancing the purposes and principles of the Charter.

He said the item on responsibility of international organizations should form a prominent part of the general framework of the law of international responsibility.  However, neither the supplementary draft article on reparations nor the alternate contained in a footnote were satisfactory.  They raised more questions than they solved, required further deliberation and were unnecessary since articles 25 to 29 provided enough guarantees for injured parties.

Turning to the topic of expulsion of aliens, he said the scope of application must be clearly defined.  While it was important to recognize the right of a State to expel aliens, the right was to be exercised with due regard to the rights of aliens.  The duties and obligations of the expelling State should be reflected in the draft article to be consistent with the understanding that the right to expel was not an absolute one, but within the limits established by international law.  A provision on the prohibition of collective expulsions should be included.  Also, the approach to the question must be more comprehensive than the vantage point of the receiving State, particularly if the scope of application extended to irregular immigrants such as migrant workers, since the influx of those aliens in most cases was generated by the need of receiving States for cheap labour.  The important point was that States should avoid arbitrary expulsion of aliens by establishing objective reasons and proofs.  And on the subject of the effect of armed conflict on a treaty, the scope should be limited to international conflicts since internal conflicts did not necessarily impact on treaties.

ESMAIEL HAMANEH ( Iran) said that expulsion of aliens, though a sovereign right, should be carried out in accordance with the established rules and principles of international law, particularly the fundamental principles of human rights.  Expulsion should be on legitimate grounds, such as public order and national security based on the laws of the expelling State.  Collective expulsions should be avoided.  On non-expulsion of refugees (article 5), he said the draft provisions should conform to the 1951 Convention on the Status of Refugees.  The expulsion by a State of its own nationals should be avoided.  His delegation favoured the term “national” in the definition of “aliens”.

On the topic of effects of armed conflicts on treaties, he said, his delegation agreed that consideration of treaties involving intergovernmental organizations should be postponed until a later stage.  It did not agree with the inclusion of internal conflicts in the scope of application of the draft articles, and reiterated its position that the scope should be restricted to international or inter-State armed conflicts.  Noting that non-international armed conflicts might adversely affect the ability of the concerned State to fulfil its treaty obligations, he said the question could be dealt with under draft articles on “Responsibility of States for internationally wrongful acts”.  His delegation favoured the inclusion of the provision on the “effect of the exercise of the right to individual or collective self-defence on a treaty” (article 10).  A clear distinction should be made, he said, between the situation of unlawful use of force by a State and that of self-defence.  The State resorting to unlawful use of force must not be allowed to benefit from the consequences of its unlawful act.

HEE-KWON PARK ( Republic of Korea) said the scope of the topic on expulsion of aliens should be defined as quickly as possible with the definition of the term “alien” covered by the concept of a national.  The paragraphs in article 2 -- referring to the grounds for expulsion of nationals -- should be deleted since the absolute prohibition against States expelling their own nationals was well established.  On armed conflicts and treaties, the language should support greater limitations on the discretion to suspend treaty relationships since the intent was to support the stability of treaty relationships even under the conditions of armed conflict.  The resort, in article 4, to the intentions of the parties of the time of concluding a treaty was problem.  More suitable criteria should be applied.

He said the responsibilities of international organizations and the 2001 draft articles on State responsibility were the two pillars of international responsibility for internationally wrongful acts.  Those should be determined within a basically uniform system similar to inter-State treaties, treaties between States and international organizations, or treaties between organizations.  The basic framework of common headings and provisions must be maintained and paralleled in revisions and additions, to reflect the distinctive qualities of the organizations.  The Commission should remain aware that the uniformity must not be undermined.  Finally, in the same way that States could not invoke domestic laws to avoid obligations under international law, international organizations could not invoke their own rules to evade legal responsibilities.  The article on reparations was too broad.

POLLY IOANNOU ( Cyprus) said there was a clear differentiation between the commission of a wrongful act and serious breaches of obligations under peremptory norms of general international law.  Serious breaches of peremptory norms and their consequences were of particular importance and brought in the question of corresponding obligations, including the fundamental obligation not to recognize entities that were the result of aggression.

Given the diversity of international organizations and the differences in their nature, structure and objectives, and in their internal and external conduct, she said a generic approach was preferable to a focus on special regimes.  The aim should be to look objectively at wrongful acts through the prism of cross-cutting and far-reaching elements, rather than attempting to create a legal construction by extrapolating principles from specific examples.  A “logic of exceptions” to accountability must not be allowed to enter, in the form of specificities of an organization that were not foreseen in the draft articles and which could be invoked to evade obligations.  At a later time, the connection between acts of an organization, and its responsibility or consequences for members, should be taken up.  Adjustments could also be considered later for any vacuums that became apparent.

The objective here, she stressed, was to find an appropriate and effective legal methodology to deal with wrongful acts, resulting from actions or omissions of entities with an international legal personality other than States.  Derivatively, the imperative was to define and ensure accountability for wrongful acts from all international actors.  With regard to both sets of draft articles on responsibility, the focus should be on the nature and gravity of the wrongful act committed.  Consequences could be tailored accordingly.

ANDRE STEMMERT ( South Africa) said his delegation supported the inclusion of two new topics on the Commission’s agenda, namely, “protection of persons in the event of disasters” and “immunity of State officials from foreign jurisdiction”.  On the subject of expulsion of aliens, he said that article 4 of the draft articles on the topic was problematic for his delegation.  He said the rule of non-expulsion of nationals in paragraph 1 of the article was qualified by the provision in article 2 which provided for expulsion of nationals “for exceptional reasons”.  He said the provision would be in conflict with South African constitutional provisions on the rights of citizenship.  It was likely that other States would face the same dilemma in terms of either their domestic legal systems or human rights regimes that they were party to.  He proposed the deletion of paragraphs 2 and 3 of the article.

He also said that provisions of the draft articles relating to refugees should be aligned with the existing relevant legal instruments, notably the 1951 Convention relating to the Status of Refugees, to prevent the creation of conflicting regimes.

GERARD VAN BOHEMEN ( New Zealand) said the question of the expulsion of aliens was difficult and raised issues of considerable political sensitivity and legal complexity.  From a legal perspective, the subject came up against the jealously guarded right of States to expel aliens from their territory and the existing international instruments and customary law which qualified the exercise of that right -- with respect, for example, to refugees and stateless persons and obligations concerning return of people to torture or other gravely wrongful treatment.  The focus should be on identifying the principles related specifically to the core subject, and how those related to other legal and policy issues without prejudging the eventual form of the output.

Turning to the effects of armed conflict on treaties, he said the definition of armed conflict should include internal conflict in line with the notion that there needed to be some qualification on the ability of States to invoke internal conflict to suspend or terminate a treaty.  It would also be helpful for the Commission to elaborate a list of factors or general criteria that could be taken into account in ascertaining whether a treaty’s object and purpose implied it continued to operate during conflict.  Given the range and diversity of treaties, the most that could be said with certainty was that some treaties, and provisions within them, were more likely to remain applicable than others.

Finally, on the question of responsibility of organizations, he commended the distinctions made between this topic and that on responsibility of States.  He said ensuring financial reparation for harm caused by international organizations was an important element of the topic.  Victims must not be left uncompensated.

MARIA TELALIAN (Greece), speaking on the effects of armed conflicts on treaties, said her country attached importance to the subject and had had the opportunity to submit some preliminary and general comments to the Commission.  She said the definition of “armed conflict” in article 2(2) of the draft articles should include both international and non-international armed conflicts.  She said that international organizations should be excluded from the scope of the draft articles, and the issue deferred for future consideration.

As for article 4 (intention of parties at the time of conclusion of treaty), she said her delegation supported its reformulation to take account of new additional criteria to better ascertain presumed intention of the parties.  It also supported the retention in the draft text of the indicative list of categories of treaties that would continue in operation in the event of armed conflict as stated in article 7(2).  The list would provide useful guidance to States.

She emphasized that the current draft articles should be inspired not only by relevant State practice, but also by the principles of the United Nations Charter on the right to self-defence, as well as other provisions of international law such as General Assembly resolution 3314 (on aggression).

She said the topic of expulsion of aliens was appropriate for codification which should aim at the development of a general regime.  Account should also be taken of case law and practice of international and regional judicial bodies.  Her delegation would not favour a definition of refugees and stateless persons which would go beyond existing treaty law.  She also said that issues of the denial of admission and the situation of aliens entitled to privileges and immunities under international law should not be addressed by the Commission.  The prohibition of the expulsion of nationals deserved to be included in the draft articles, she said.  Her delegation saw no need for an explicit mention of terrorism as a ground for expulsion.

ÇAĞLA TANSU-SEÇKIN ( Turkey) said she welcomed the inclusion of the reference to terrorism in the article on non-expulsion of refugees, “save on the grounds of national security or public order [or terrorism]”.  The Security Council had called for non-abuse of refugee status, but refugee status continued to be abused and exploited by terrorists.  The term “national security” did not cover the same ground and it was imprecise.  Whose national security was inferred?  Selective approaches in the fight against terrorism had given rise to the situation that some States did not regard perpetrators of terrorist acts as a direct threat to their public order or national security.  Also, terrorists who committed terrorist offences in one State could conduct their affairs carefully so as not to commit offences in another State for safe haven.  In short, omitting explicit mention of terrorism risked the continuation of a loophole that already existed in the fight against terrorism.  The brackets should be removed and the word “terrorism” should be replaced with “counter-terrorism” for clarity.

Summing up, she said it would be useful to keep in mind that legal or extradition proceedings could not be completed in some cases against perpetrators of terrorist crimes because of the refugee status of those individuals.  The applicability could extend to persons who were in an unlawful situation in a receiving State and who applied for refugee status unless the sole purpose of the application was to thwart a likely expulsion order.  In that regard, it was worth mentioning that applications for refugee status could be abused to thwart extradition requests.

SVETLANA SHATALOVA ( Russian Federation) said her delegation had some doubts about the suggestion of the special rapporteur concerning the extension of the scope of the topic of “expulsion of aliens”, and the wording of the corresponding draft articles.  Her delegation would like the enumeration of the categories of persons to be excluded from the draft text, including persons with special status, such as those entitled to privileges and immunities under international law.  Refugees, stateless persons and enemy aliens could be added to the list.  The question of expulsion of persons with dual or multiple nationality required thorough examination.  The formulation of a norm with respect to the State of predominant nationality of a person could be a desirable development of international law.

On the topic, effects of armed conflicts on treaties, she said her delegation was not fully convinced of the necessity of draft article 9 on the resumption of suspended treaties.  It was important that the Commission had drawn a distinction between a State unlawfully using force and a State exercising its legitimate right of self-defence from the point of view of legal consequences for their treaty relations.  The Russian Federation could not support the Commission’s decision to include internal conflicts in the scope of the draft articles.  In its opinion, internal conflicts, unlike international ones, could not substantially change the relations between States, including treaty relations.

On responsibility of international organizations, she said the rules applicable to international organizations were almost identical to those for States.  It was, therefore, appropriate that the special rapporteur on the topic followed the provisions of the second part of the draft articles on State responsibility.  The Russian Federation could not agree with the assertion that there were no examples in international practice where Member States provided reparation to the injured party, if the responsible organization were not capable of doing so.  Such an obligation existed in several international instruments on space law.  He cited the 1967 Treaty on principles governing activities of States in the exploration and use of outer space, including the Moon and other celestial bodies, and the 1972 Convention on international liability for damage caused by space objects.

COSMIN DINESCU ( Romania), speaking on expulsion of aliens, said there should be a general prohibition on expelling persons to States where they could be subjected to torture and other forms of inhuman treatment.  Expulsion of nationals, as well as refugees and stateless persons, should be prohibited in international law.  Terrorism should also not be cited as a specific ground for the expulsion of a refugee or stateless person, since there was no agreed definition of terrorism.  In addition, grounds of “national security” could be used for expulsion.

On effects of armed conflicts on treaties, his delegation considered that the Commission’s recent work on the topic represented a further step towards the completion of its task on the subject which was of major interest for international law.   Romania would favour the inclusion of the question of treaties involving international organizations in the scope of the draft text.  The topic needed a thorough analysis and should take account of State practice and that of international organizations.

On responsibility of international organizations, his delegation welcomed  the principles reflected in the adopted texts.  Those included the duty of international organizations to make reparations, the form that the reparation should take or the distinction to be made between obligations owed by the international organizations towards its members and the obligations of non-members.

JURG LINDENMANN ( Switzerland), speaking on liability of international organizations, said more and more organizations were involved in activities affecting the rights of individuals, sometimes profoundly.  That raised the likelihood of individual rights being violated, but the article on responsibility of international organizations was without prejudice to any right that could accrue directly to any person or entity other than a State or international organization.

Turning to the question of reparations, he emphasized that there was no subsidiary obligation for members to make reparation when the responsible international organization was not in a position to do so, but there was a general duty of members of an international organization to exercise the rights and obligations attached to membership.  That was the thrust of article 43, but an important proviso was that members should take all appropriate measures to provide the organization with the means for effectively fulfilling its obligations, as a collective effort with each individual member carrying a proportionate share of the duty.

Finally, the article on reparations did not focus on an obligation of the responsible international organization, but on an obligation of its members.  The Commission could perhaps consider the conceptual difference since it underlined the fact that international organizations were creations of their members.  While the organization had a separate legal personality and will, its members shared responsibility for the organization’s institutional set-up and fate.  “They cannot just abandon it”, he said, adding that the article could be useful in practice by shedding light on the need for international organizations to advance their risk management.  Where international organizations engaged in risky activities, members could wish to consider the establishment of separate reserves or funds for the purpose of providing compensation in the event it was needed.  Members could also ask the organization to underwrite insurance to cover certain risks.

WILLIAM ROELANTZ DE STAPPERS ( Belgium) said members of an organization must be given the means to ensure the organization would carry out its duties.  If an international organization had to shoulder new tasks in the fulfilment of its purpose, then members assumed those additional tasks and that obligation extended to situations of reparations.  The situation was not a matter of the obligation of making reparation falling onto the shoulders of members, but that of members assuming their obligations towards the organization.  As the International Court of Justice had ruled in 1962, in relation to the expenses of the United Nations, ordinary expenses of an organization must be viewed in context of the organization’s purpose.

With regard to the question of whether an organization was entitled to demand that a wrongful act be ceased, he noted the obligation to cooperate in ceasing a wrongful act.  In the situation where the wrongful act was a breach of an obligation owed to the international community as a whole, the violation became a breach of a norm that entitled the affected State and all other States to restore respect for the norm, since it impacted on the universal principle of respect for international norms.  Also, international organizations had a right to demand the cessation of wrongful acts of other organization, and the obligation to make reparation also applied.

Finally, he said countermeasures were intended to be instruments aimed at precluding wrongdoing.  It was important to ensure that countermeasures did not become private punitive measures of retribution.  The cumulative nature of countermeasures could have a negative impact, particularly in the case of economic countermeasures.  The principle of proportionality could help keep the threat of that danger in check.

LIUDMILA KAMIaNKOVA ( Belarus) said that the topics of State responsibility and that of international organizations were of importance to many States, including her own.  Her delegation supported the work of the Commission and its special rapporteur on the topic for completing the first stage of the project.  It hoped that the Commission could complete its work on the topic in its entirety, drawing together existing practice of international organizations.  The 15 draft articles adopted by the Commission at its fifty-ninth session were similar to those on responsibility of States.  She welcomed the approach taken with regard to provisions on reparation, asserting that draft article 43 on effective performance of reparation raised more questions than answers.

On breaches of obligations, she said States and international organizations should be governed by the same rules.  She wished the Commission every success in elaborating an instrument that would govern international responsibility of international organizations.

ADY SCHONMAN ( Israel) said she was concerned with the present wording of the draft article on reparations, and the interplay between the primary responsibility of an international organization to ensure effective compensation towards an injured party and any subsidiary notion of attributing responsibility to member States when the organization could not make reparation.  The commentary did make that concept clear, but the article itself needed more clarity to underline the principle in no uncertain terms.

Further, she said, a specific reference should be included on requiring international organizations to take sufficient measures to ensure that members provided organizations with the means to compensate an injured party.  To bypass legal complexities, a mechanism could be created that required organizations to create a fund for granting compensation, in exceptional situations of legal ambiguity existed on attribution of culpability of the organization’s members.

On the effects of armed conflict on treaties, she said the text was still being studied.  It already seemed clear that article 6 bis on the applicable law during conflict was redundant, and that article 7 on the listing of categories of treaties was problematic.  A list of relevant factors or general criteria would be more appropriate.

She said the scope of the articles on expulsion of aliens needed more clarity.  Questions related to the traditional notion of expulsion should be distinguished from non-admission of aliens and the removal of illegal immigrants at a border.  Failure to make the distinction was incompatible with current practice.  The scope of debate should be confined to established rules of customary international law without deviating to general, controversial issues of international law.

REMIGIUSZ HENCZEL (Poland), speaking on expulsion of aliens and the effects of armed conflicts on treaties, said he agreed with the scope and definitions in the introductory articles on expulsion, but favoured the term “alien” to be defined in the well-established concept of “national”.  The current definitions should also not exclude the possibility of future definitions being added, as, for example, the concept of “refugee”.  Exceptions from the general prohibition against expulsion of nationals should be treated carefully, so as not to endanger the institution of nationality, which should be treated not just as a prerogative which States granted to individuals, but also as a principal human right.  While the question of expulsion had so far been considered in context of a State’s right, the human rights aspect should now also be considered.

Moving on to the question of the effects of armed conflicts on treaties, he said the term “outbreak of hostilities” should be used in lieu of “armed conflict”.  There should be no special regime for provisionally applied treaties, and while the articles were to be consistent and compatible with the Vienna Convention, they should be a self-contained, independent instrument and not a supplement to the Vienna Convention.  Draft article 8 should contain a set of rules on the mode of termination and suspension of treaties, rather than making reference to the Vienna Convention.

STELLA K. ORINA ( Kenya) said the topics “expulsion of aliens”, “effects of armed conflicts on treaties” and “responsibility of international organizations” touched on important aspects of international relations of States.  The Law Commission should circulate its reports in time for member States to comment on them.  Her delegation welcomed the Commission’s decision to include two new topics in its current work programme, namely, “protection of persons in the event of disasters” and “immunity of State officials from foreign criminal jurisdiction”. The proposed new topic on “most favoured-nation clause” was also welcomed by her delegation.

She urged the Commission’s secretariat to intensify its collaboration with relevant international bodies, and hoped the forthcoming sixtieth anniversary session of the Commission would provide an opportunity for enhancing the awareness of the Commission’s work.

ESA PAASIVIRTA, speaking on behalf of the European Community, expressed concern about the feasibility of subsuming all international organizations under the terms of the draft articles on the “responsibility of international organizations”.  He spoke of the diverse nature of international organizations, of which the European Community was itself an example.  He said he fully endorsed the general principles on the content of the articles on responsibility of international organizations.  International organizations, just as States, were under an obligation to cease the wrongful act and offer appropriate assurances of non-repetition, and to make full reparation for the injury caused by the internationally wrongful act.  The European Community, in its dispute settlement practice, acknowledged international responsibility for breaches of its contractual obligations.

He said the European Community responded in a routine manner to decisions of the World Trade Organization (WTO) dispute settlement body to bring Community measures into conformity with its obligations, which arose from the covered agreements in compliance with the dispute settlement understanding.  As a corollary, he said the European Community asked its WTO partners to cease applying retaliatory measures against it, once the internal legislation was brought in line with WTO requirements.  He said the draft articles were largely satisfactory to the European Community.

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For information media • not an official record