Legal Committee Debates Usage, Form of Draft Articles Concerning International Organizations’ Responsibility, Armed Conflicts’ Effects on Treaties
Observer Status Approved Without Vote for Two Organizations
After deliberating on draft articles addressing the effects of armed conflicts on treaties and the responsibility of international organizations, the Sixth Committee (Legal) today approved, without a vote, requests for Observer status for the International Institute for the Developing Eight Countries Organization for Economic Cooperation and the Pacific Community.
Opening the meeting, Sam Kahamba Kutesa, President of the General Assembly, stressed the importance of the Committee’s work in the maintenance of justice and respect for treaty obligations and international law — critical components of the Organization’s mission. The Committee’s deliberations on the draft articles from the International Law Commission before them today was among the diverse and extensive work it did in the progressive development of international law, and encouraged the Committee to continue with the spirit of consensus as it considered the remaining items on its agenda in the coming weeks.
The Committee then turned to the Commission’s draft texts on effects of armed conflicts on treaties and on the responsibility of international organizations. Many delegations viewed the draft articles on the effects of armed conflicts on treaties mainly as resources, stating that the Vienna Convention on the Law of Treaties should remain the primary instrument for interpretation of the subject.
The representative of the Russian Federation also noted that the texts, which covered a series of interrelated issues that could arise throughout the course of an armed conflict, also clearly reflected the presumption that armed conflicts did not necessarily entail the derogation of international treaty relations. That would allow States to regulate how treaties might be applied during such conflicts.
Concerning the draft articles on the responsibility of international organizations, speakers pointed out that the text followed too closely the articles on State responsibility, failing to take into account the differences between the two entities.
Portugal’s representative said that, while the principles of State responsibility generally applied to international organizations, it would be preferable to focus on a specific set of draft articles dealing with issues specific to international organizations. Such draft articles should reflect the competencies and powers of international organizations, and their relations with member States, as well as differences between them.
Also speaking today were representatives of South Africa (for the African Group), Finland (also for Iceland, Norway and Sweden), Belarus, Cuba, Colombia, Singapore, Israel, India, Greece, Malaysia, Argentina, United States, Denmark (also for Finland, Iceland, Norway and Sweden), Federal States of Micronesia, United Kingdom, Pakistan and Fiji.
The Sixth Committee (Legal) will next meet at 10 a.m. on Monday, 27 October, to commence consideration of the Report of the International Law Commission.
Background
The Sixth Committee today would consider the effects of armed conflicts on treaties, and the responsibility of international organizations.
It would also take action on the granting of Observer status for the Developing Eight Countries Organization for Economic Cooperation (document A/C.6/69/L.2), and for the Pacific Community (document A/C.6/69/L.3). For background, see Press Release GA/L/3480.
Remarks by President of General Assembly
SAM KAHAMBA KUTESA (Uganda), President of the General Assembly, noting that the development and promotion of international law was a critical component of the United Nations’ mission, said the work of the Sixth Committee, in particular, was essential for the maintenance of justice and respect for treaty obligations and international law. More so, it was closely linked to the priorities laid for the current General Assembly session, including those related to peace and security.
The Committee’s deliberations on measures to eliminate international terrorism, he said, had confirmed Member States’ unequivocal commitment to condemn and combat terrorism in all its forms and manifestations. The United Nations Global Counter-Terrorism Strategy ensured an integrated and balanced approach to counter-terrorism efforts, consistent with the rule of law and the protection of human rights. The Committee’s work on the rule of law at the national and international levels, focusing on States’ national practices towards strengthening the principle through access to justice, would help advance the work in relation to the post-2015 development agenda.
He said he expected that the Committee’s deliberations on the International Law Commission, including on its two sets of articles today, would underscore the relevance of the Commission’s contributions to the development of international law and its codification. Also, given the strong inter-linkages between trade and development, the work of the United Nations Commission on International Trade Law (UNCITRAL) could greatly contribute to enhancing environments for sustainable development. Noting the importance of the Sixth Committee in advancing the discussion on universal jurisdiction, he said the United Nations Charter must serve as its guiding principle. He encouraged the Committee to continue with the spirit of consensus, as it considered the remaining items on its agenda in the coming weeks.
Statements on Effects of Armed Conflict on Treaties
KINGSLEY MAMABOLO (South Africa), speaking for the African Group, commended the International Law Commission for clarifying and developing law on the effects of armed conflicts on treaties. However, the Vienna Convention on the Law of Treaties remained the primary instrument regarding interpretation on the matter. Pointing out that the definition of “armed conflict” in the draft articles differed from that in international humanitarian law, which had been adopted and applied in case law, he said those texts must not depart from established rules and principles of international law.
Furthermore, he continued, rather than presenting an indicative list of types of treaties that should be presumed not to be susceptible to termination or suspension during armed conflict, as the draft articles did, it would be better to establish criteria to determine what types of agreements would not be susceptible. It was preferable for the draft articles to be elaborated into a set of principles or guidelines that States could refer to, should the need arise, rather than into a binding convention.
SARI MAKELA (Finland), speaking also for Finland, Iceland, Norway and Sweden, welcomed the versions of several draft articles. The scope of the draft articles should be broad enough to cover cases in which only one of the State parties to a treaty was also a party to an armed conflict. Therefore, the version of draft article 1 was welcomed, as was the wording in paragraph b of draft article 2, regarding the definition of the term “armed conflict”; it accurately reflected its meaning under international humanitarian law, while accounting for the context of the present draft articles. With draft article 7, the list of treaties, found in the annex to the draft articles, should be incorporated into the commentary to draft article 7, or possibly be deleted.
ILYA ADAMOV (Belarus) said that since his country had often put forth proposals in connection with the articles, it would not repeat them in the current forum. He expressed a positive assessment of the Commission’s work in filling gaps of international treaties, and highlighted the unfinished character of draft article 8. There was still ambiguity on the future of an international treaty, which could lead to uncertainty in terms of rights and obligations. Discussion on the draft articles, including the question of form, could be included in the Commission’s work or a special working group, set up in the Sixth Committee. He expressed gratitude to the Commission for its serious work, and hoped that his country’s proposals would be found useful.
ELENA MELIKBEKYAN (Russian Federation) said that the draft articles covered a series of interrelated issues that could arise throughout the course of an armed conflict. It was of significance that they clearly reflected the presumption that armed conflicts did not necessarily entail the derogation of international treaty relations, thus allowing for States to regulate how treaties might be applied during such conflicts. Furthermore, international armed conflicts should not fall within the scope of the draft articles. That situation was covered sufficiently by the Vienna Conventions. In addition, the same rules should not apply to international and non-international conflicts. Noting that the attempt to define “armed conflict” in the texts did not correspond to the existing definition, they did not meet the standards of international law. She suggested they be considered as guidelines for States on future practice, which could later be elaborated into law.
TANIERIS DIEGUEZ LAO (Cuba) said that despite progress made, the draft articles suffered from the lack of a broad definition of armed conflict. The definition must include statements that would make it possible to include other types of armed conflict that featured the direct aggression on the sovereignty of States. For example, it could be indicated that the unilateral imposition of an economic, commercial and financial blockade against a State generated an immediate impact on the bilateral treaties between the two States in conflict. Likewise, in order to achieve greater clarity, it was important to continue defining various elements, which had great importance in dealing with the issue, such as defining in article 18 — paragraphs a and c — what was to be understood as a “grave violation” and a “fundamental change in circumstances”. The draft articles should not contradict the regime of the Vienna Convention on the Law of Treaties.
MIGUEL CAMILO RUIZ BLANCO (Colombia), giving an overview of the history of the effect of armed conflicts on treaties, said that the Vienna Convention on the Law of Treaties established, in articles 42-64, a general regime on the suspension or termination of treaties, but made no specific mention of the effect of armed conflict on treaties. Thus, the elaboration of the draft articles on the matter represented a milestone. However, from a legal standpoint, attempts to define the meaning of “armed conflict” went beyond the nature of the articles, which should only address their effect on treaties. Furthermore, the draft articles should specifically address both international and non-international conflicts.
LUKE TANG (Singapore), voicing supported for draft article 3, said that the articles should remain as draft texts; there was no need to have them formally endorsed into a convention. There was ambiguity regarding non-international armed conflict. For example, the definition in draft article 2 did not explicitly refer to “international” or “non-international” armed conflict. There should be consistency in the use of “non-international armed conflict”, so that it be expressly defined in draft article 2, or not used at all throughout the draft articles. There was also difficulty with the analytical approach set out in draft articles 5, 6 and 7. The relationship between draft article 5, and draft articles 6 and 7, could have been more clearly articulated. As well, he said he had difficulty with the broad categorization approach adopted in the indicative list of treaties referred to in draft article 7, preferring, instead, an approach that listed specific types of treaty provisions, rather than board categories of treaties.
MEITAL NIR-TAL (Israel), reiterating concerns that had previously been raised with respect to certain articles, said that on the inclusion of only one topical list of treaties, there needed be more substantive criteria as to what should remain in effect in the course of armed conflicts. She expressed support for a more appropriate approach, whereby certain general criteria would be identified, which, if met, would continue to apply during an armed conflict. Concerning article 15 on the prohibition of benefit to an aggressor State, in an extended conflict, given the complexity such a situation may pose, the question of possible benefit to an aggressor State should be considered as a relevant factor, but not necessarily the only factor to be taken into account. Further work was still required on developing the substance and application of the articles, prior to examining the question of the appropriate form that should be given to them.
JOÃO MIGUEL MADUREIRA (Portugal) said that the whole point of the topic was to determine the extent to which mutual trust among parties over the fulfilment of treaty obligations could be compromised in the event of armed conflict. Thus, the goal was to discover how to strike a balance between the trust among parties as a prerequisite of treaty compliance, and the need for legal certainty. However such issues as the inclusion of internal armed conflicts within the scope of application of the draft articles and the position of third States would be divisive in a diplomatic conference, as no practice, jurisprudence or doctrine existed that offered a clear and single answer to those matters. Nevertheless, he said, “[W]e should strive to attain a balance between preserving the work of the [International Law] Commission and insuring the stability of international law through the adoption of a convention.” A working group should be established in that regard.
KOTESWARA RAO (India) said the definition of armed conflict should be limited to situations in which there was a resort to armed force between States. The definition under draft article 2.b should not include international conflicts, as they did not affect relations of States under a treaty. Concerning the annex that contained a list of treaties, the twelve categories of treaties could not be combined into one list. They were different in nature and scope. On the question of form, his preliminary view was that the draft articles could be considered for adoption as guidelines that would be available to States for determining the fate of treaties in a situation of armed conflict of international character.
ZINOVIA CHAIDO STAVRIDI (Greece) said the draft articles offered useful and practical guidance for States and international tribunals, as they dealt with the impact of armed conflict on treaties. Her delegation had consistently supported the principle of the continuity of treaties during armed conflict and the general approach adopted by the Commission in its recommendations to the Assembly concerning the draft articles. The Commission’s recommendation that the Assembly should adopt a resolution, taking note of the draft articles, was welcomed. That would encourage States to use them in specific situations. The Assembly should consider, at a later stage, a convention based on the draft articles. That instrument could be a complementary instrument, equal to the Vienna Convention on the Law of Treaties.
WAN MOHD ASNUR WAN JANTAN (Malaysia) said it was premature to discuss the final form of the draft articles. Consideration should be done at a later stage to allow Member States time to review them, and develop sufficient practice on the matter. He also said that it might be premature to recommend the draft articles for elaboration or elevation to a convention, but would lend support if the draft articles were to be used as non-legally binding guidelines.
MATEO ESTREME (Argentina) said a study of State practice needed to be based on consultations with Governments. To insure impartiality, conclusions could only be reached when it was backed by all involved States. In examining the effects of armed conflict on the termination or suspension of certain treaties, it would be necessary to establish which obligations in a treaty continued to be binding during or after an armed conflict. The International Law Commission had considered not just the validity of treaties as a fundamental principle, as indicated in its draft article 3 that the existence of armed conflict did not ipso facto terminate or suspend the application of a treaty, but also the question of separability of treaty provisions. As an example, he said the recognition of a sovereignty dispute and its characteristics could not be affected by armed conflict.
JOHN ARBOGAST (United States) said he continued to be concerned about the definition of “armed conflict” in draft article 2(b). The better approach would have been to make clear that armed conflict refers to the set of conflicts covered by the almost universally accepted common articles 2 and 3 of the 1949 Geneva Convention. Regarding article 15, he said that he did not support the focus on aggression as defined by General Assembly resolution 3314. The focus should have been on the unlawful uses of force. The draft articles would be best used as a resource that States could refer to when determining the effect of a particular armed conflict on particular treaties, he noted, saying he did not support an elaboration of a convention on the topic.
Statements on Responsibility of International Organizations
CHRISTIAN KARSTENSEN (Denmark), speaking also for Finland, Iceland, Norway and Sweden, expressed broad support for the draft articles on the responsibility of international organizations, which already served as a useful tool for practitioners and scholars. However, he questioned whether a diplomatic conference would be able to produce a clear result that would ultimately ensure ratification by an adequate number of States. Therefore, he did not currently support the elaboration of a convention.
On an issue closely related to the topic, he noted that the issue of the settlement of disputes of a private character, to which an international organization was a party, had gained increasing importance. The present system did not seem entirely adequate, particularly with regard to dispute settlement procedures in United Nations peace operations. In that regard, further work could be done to ensure that private individuals who suffered harm as a consequence of peacekeeping operations were compensated. As well, the Committee could further reflect on whether the present system and procedures were adequate to handle legitimate claims from private individuals.
ELENA MELIKBEKYAN (Russian Federation) said that while certain issues in the draft articles on the responsibility of international organizations required further discussion, such as whether they had a right to self-defence, others had been resolved. Among the latter, she noted with approval the conclusion that an organization’s illegal actions did not draw responsibility for those actions upon its membership. Another issue favourably addressed was that an international organization could not rely on its internal rules to justify violations of its international obligations. However, that principle did not necessarily apply to the organization in relation to its members; therefore, its rules could establish, for example, specific forms of compensation to States for harm caused by the organization. Noting the practical importance of the topic, she expressed support for elaboration of a legally binding convention on the responsibility of international organizations.
TANIERIS DIEGUEZ LAO (Cuba) said the conceptual definition of the term “international organization” was no easy task from a technical and legal view point. Yet, despite the subject’s complex nature and the variety of existing international organizations, the draft articles had wisely gathered major principles of international law. However, the Vienna Convention on the Law of Treaties should be the guide for any legal definition on the subject. Reference to “harm” should be considered an essential element in the definition of an international illicit act of an international organization. That element was what determined the obligation to make reparations, to halt violence, or to offer guarantees to the injured party that such harm would not be repeated.
JANE CHIGIYAL (Federal States of Micronesia) said it was clear that international organizations must be held accountable for their internationally wrongful actions. In any instances when international organizations might act contrary to their obligations to Micronesia, her country would invoke the articles to press its case and secure reparation. Although the articles reflected the progressive development of international law rather than its codification, the rules and principles deserved to be widely employed. The Secretary-General should produce a report surveying how the articles had been used by Governments, international organizations and judicial bodies since being adopted by the International Law Commission.
PAUL SCULLION (United Kingdom) said the draft articles were best left in their current form, as there was not yet a pressing need for a convention on the issue. Since it was not clear that sufficient consensus on the law existed, it was unlikely that an inevitably long and complex process of negotiation would lead to sufficient consensus to adopt a convention. In addition, it was not clear how the draft articles were being applied in practice. It appeared they did not yet carry the same authority as the corresponding articles on State responsibility. International organizations were incredibly varied and their practices were frequently based on their own constitutional instruments, rather than acceptance of general principles set out in the draft articles.
NATALIE Y. MORRIS-SHARMA (Singapore) said the time was not ripe for the elaboration of a convention on the responsibility of international organizations on the basis of the draft articles. Certain aspects of those texts, which sought to progressively develop the applicable rules, still presented some difficulty, she said, noting that she was not convinced that their application to international organizations would not lead to unforeseen complications. However, the draft articles could be a useful lens through which to assess and maybe even inform the practice of international organizations and States, in connection with international organizations. Future consideration of the matter was welcomed if it were accompanied by clear action items to facilitate future examination of the form the texts might take, such as requests to the Secretary-General to invite comment, submit practice information, and provide relevant past court and tribunal decisions.
MEITAL NIR-TAL (Israel) expressed concern about the draft texts being discussed and their reliance on the articles relating to the responsibility of States. Such reliance, without taking into account the inherent differences between States and international organizations, might lead to undesirable consequences. Noting the diversity of international organizations in their substance and purpose, she questioned whether a convention could be uniformly applicable. Furthermore, the draft articles “glossed over” the difference between the responsibilities owed by an organization to its member States, versus the responsibility owed to third-party non-member States. As well, there was doubt as to whether the principle of self-defence was applicable to international organizations. She questioned whether the notion of countermeasures by international organizations against States should be included, maintaining that the notion of necessity, a well-developed doctrine in relation to States, had yet to be encountered by an international organization.
JOÃO MIGUEL MADUREIRA (Portugal) said that the codification of the responsibility of international organizations was the logical counterpart of that of State responsibility. However, that did not mean that the first was required to derive from the latter. The draft articles on the responsibility of international organizations followed too closely those on State responsibility. Noting that the principles of State responsibility generally applied to international organizations, it would be preferable to focus on a set of draft articles dealing with issues specific to international organizations. Furthermore, they should reflect both the existing differences between States and international organizations, and the fact that the competencies and powers of the latter, as well as their relations with member States, varied from organization to organization. The General Assembly should be requested to take note of the draft articles, and only consider adoption of a convention at a later date.
ZINOVIA CHAIDO STAVRIDI (Greece) said the articles would provide useful guidance to national and international courts when dealing with claims on internationally wrongful acts committed by international organizations. However, given the scant availability of pertinent practice, they lent themselves more to progressive development rather than codification in international law. Thus, the draft articles should not be seen as having acquired the same authority as the corresponding articles on State responsibility. In that light, while the General Assembly should take note of the draft articles, it was not yet time to elaborate a convention.
JOHN ARBOGAST (United States) said he was pleased that the general commentary introducing the draft articles noted the scarcity of practice in the area. Many rules contained therein fell into the category of progressive development rather than codification of the law. He agreed with the Commission that provisions of the draft articles did not reflect current law in the area to the same degree as the corresponding provision on State responsibility. The differences between international organizations and States should be considered in that regard. Furthermore, noting the diversity among international organizations with their different structures and range of functions, powers and capabilities, he said that the lex specialis rule set forth in article 24 was of “extraordinary importance”. Thus, there could be differences in the way rules on responsibility operated between an international organization and its members, as opposed to an international organization in other settings.
Action on Draft Resolutions
Before the Committee was a draft resolution containing a request for Observer status for the Developing Eight Countries Organization for Economic Cooperation in the General Assembly (A/C.6/69/L.2). It was approved without a vote.
The draft resolution requesting Observer status for the Pacific Community in the General Assembly (A/C.6/69/L.3) was then taken up and also approved without a vote.
Speaking after the action, Fiji’s representative said the approval of the resolution was a step in the right direction for sustainable development, especially in the context of the post-2015 development agenda.