Speakers Deliberate Nature, Breadth of Rules for International Organizations’ Responsibility, as Sixth Committee Takes Up Matter
As Expulsion of Aliens Debate Concludes, Delegates Remain Focused on Balance between State Sovereignty, Human Rights
After approving three resolutions on requests for observer status, the Sixth Committee (Legal) today took up the subject, “Responsibility of International Organizations”, with speakers debating whether rules applying to States could be applicable to international organizations, and, if so, whether the International Law Commission’s draft articles on the matter could be elaborated into a convention.
The Committee approved without a vote three draft resolutions on the request for observer status in the General Assembly, including: the International Network for Bamboo and Rattan (A/C.6/72/L.8); the ASEAN+3 Macroeconomic Research Office (A/C.6/72/L.9); and the Eurasian Group on Combating Money Laundering and Financing of Terrorism (A/C.6.72/L.4).
As debate began on the Secretary-General’s two reports regarding the responsibility of international organizations, (documents A/72/80 and A/72/81), Guatemala’s delegate spotlighted the usefulness of the International Law Commission’s draft articles. However, he pointed out that the Commission’s main difficulty on those texts had been the lack of relevant current practice. That meant that the Commission’s work focused on progressively developing international law. “Law evolves; it is not static,” he said.
Sudan’s representative emphasized that, while the International Law Commission had relied on articles related to State responsibility for its text on international organizations — an approach he supported — it was also important to know what the rules were for specific international organizations, as well as to discern what their relationships were with Member States.
Echoing those sentiments, Iran’s delegate underscored that it was imperative to establish those rules under which international organizations could be held accountable for any wrongful act committed. The general framework of rules governing international responsibility needed to be upheld to ensure the rule of law. However, the adoption of those draft articles was a major step forward in the codification of international law, she added.
Australia’s representative also raised the issue of applying rules to international organizations that had been deemed to be applicable to States. While the norms and institutions ensuring the responsibility of States had been well developed, those did not necessarily apply to international organizations. Indeed, there seemed to be a considerable difference of opinion between various Member States over the principles that would best govern international organizations.
The delegate of Portugal noted that it would not be unreasonable to consider convening a diplomatic conference to adopt a convention on the responsibility of international organizations. However, she would not support any proposal towards removing the topic from the agenda. The Committee had a duty to contribute towards the stability and strength of the draft articles; otherwise, the work of the Commission risked becoming a never-ending story.
The Committee also concluded its deliberations on the expulsion of aliens, with delegates noting the usefulness of the draft articles to develop practices while still deliberating on the appropriate balance between State sovereignty and the human rights of migrants and refugees.
The representative of Bangladesh, commenting on specific draft articles, underscored the need for a cautious approach to progressive development of law and highlighted draft article 23 as a case in point. While recognizing the potential for developing a convention drawing on the draft articles at a later time, he also urged the international community reject the statements by Myanmar leadership to expel the Rohingyas. That situation was little more than a systematic ethnic cleansing campaign, he said.
The representative of Myanmar underscored that his country and the Bangladesh authorities had agreed to set up a working group to deal with displaced persons in order to ensure their voluntary and dignified return. The allegations made by the representative of Bangladesh were not constructive or helpful in resolving the issue at hand, he stated, adding that his Government would continue to work in neighbourly spirit, in collaboration with regional and international partners to resolve the issue.
Expulsion of aliens, the delegate of the Democratic Republic of the Congo emphasized, was a topic in which the Committee had an opportunity to impact future generations. The person being expelled should have a number of procedural guarantees, particularly the right to appeal. Citing the Special Rapporteur on the matter, he said “we are talking of human beings and not things when we talk about aliens.”
Also speaking were representatives of Greece, Israel, Denmark (for the Nordic countries), United States, Mexico, Singapore, Russian Federation, El Salvador, Cuba, United Kingdom, Malaysia, and Uruguay.
The Committee will next meet at 10:00 a.m. on Monday, 16 October, to commence consideration of the United Nations Programme of Assistance in the teaching, study, dissemination and wider appreciation of International Law.
Statements on Expulsion of Aliens
MARIA THEOFILI (Greece) said that the topic was of critical importance, in particular for transit countries such as hers, which were facing mixed migration flows of unprecedented dimension. Greece was striving to ensure humane conditions of reception and screening of foreign nationals illegally entering its territory, as well as to identify and protect vulnerable persons and to improve the conditions of detention. However, while the draft articles covered most aspects, the elaboration of a convention on their basis would not be beneficial. It was best to address the issue through regional instruments, tailored to the needs of the countries involved, and the case-law of international judicial and quasi-judicial bodies. In that respect, the draft articles could serve as a highly relevant set of guidelines, assisting States in designing and implementing legislative frameworks and developing practices in the field of expulsion of aliens.
MOHAMMAD HUMAYUN KABIR (Bangladesh) expressed agreement with the overarching thrust of draft article 3 concerning States’ rights of expulsion. The provisions concerning grounds of expulsion in article 5 were convincing but should be subject to further discussion on whether expulsion on the grounds of national security should be retained. Underscoring the need for a cautious approach to progressive development of law, he highlighted draft article 23 as a case in point. While recognizing the potential for developing a convention drawing on the draft articles at a later time, he also urged the international community to reject the provocative statements used by Myanmar leadership to expel the Rohingyas using racially motivated pretexts. That systematic campaign of ethnic cleansing must come to an end, he said.
AMIT HEUMANN (Israel), noting that his country had experienced an influx of individuals illegally entering its territory by crossing its southern border, said that the subject of the expulsion of aliens was a sensitive one. It went to the heart of the principle of sovereignty of every country. That issue demonstrated the need to balance national security interests and the right of each country to establish and maintain its own migration policy with human rights issues that pertain to the fundamental rights of individuals. Migrants were moving in extreme flows and each country was faced with the challenge of finding suitable solutions. Due to the diversity of practices in that field, the codification of State practice was extremely challenging.
CRISTINA PUCARINHO (Portugal) said that the draft articles prepared by the International Law Commission were a good framework for the protection and respect of individual rights in situations of expulsion of aliens. The Commission managed to strike a balance between the rights of individuals and the sovereignty of a State over its territory. The draft articles should remain an overview of already existing legal norms. They provided a general guide of law on the matter.
ZENON MUKONGO NGAY (Democratic Republic of the Congo), commending the Commission for its contribution to the progressive development and codification of international law, called on the Sixth Committee to draft a resolution that the General Assembly could approve with the articles attached as an annex. Expulsion of aliens was a topic where the Committee had an opportunity to impact future generations. He cited the Special Rapporteur on that topic who had acknowledged that in a globalized world, “we are talking of human beings and not things when we talk about aliens.” The person being expelled should have a number of procedural guarantees, particularly the right to appeal.
Right of Reply
The representative of Myanmar, speaking in exercise of the right of reply, said that Myanmar and Bangladesh authorities had agreed to set up a working group to ensure a voluntary and dignified return for displaced persons. At a time of such cooperation, unsubstantiated allegations, such as the one made by the Bangladesh delegate, were not constructive or helpful in resolving the issue at hand. Myanmar would continue to work in neighbourly spirit, in collaboration with regional and international partners to resolve the issue.
Requests for Observer Status
The Sixth Committee took up three resolutions on the request for observer status in the General Assembly. (For background, please see Press Release GA/L/3547.)
The Committee approved without a vote the resolution on the request for observer status for the International Network for Bamboo and Rattan (A/C.6/72/L.8).
The Committee also approved without a vote the resolution on the request for observer status for the ASEAN+3 Macroeconomic Research Office (A/C.6/72/L.9).
The Committee then approved without a vote the Eurasian Group on Combating Money Laundering and Financing of Terrorism (A/C.6.72/L.4).
Statements on Responsibility of International Organizations
JONAS BRUUN (Denmark), also speaking for the Nordic Countries (Finland, Iceland, Norway and Sweden), voiced his support for the International Law Commission’s articles that, together with the commentary, served as useful tools for practitioners and scholars. In recent sessions, the central theme of discussions had been the question of the form that might be given to those articles. In view of those discussions, he noted that he did not support the elaboration of a convention on the basis of the articles.
He went on to say that stance was the common position of other Governments and international organizations that had given written comments. He also observed that States and international organizations had submitted very limited information on practice regarding those articles. The scarcity of relevant and consistent practice that underpinned a number of those articles represented one of the main reasons why it was premature to negotiate a treaty.
MARK A. SIMONOFF (United States) said that, in the light of the scarcity of practice on the matter, many of the rules contained in the draft articles fell into the category of progressive development rather than codification of law, a point that the general commentary introducing the articles expressly recognized. Furthermore, the provisions of the present articles did not reflect the current law to the same degree as the corresponding provisions on State responsibility. Due to the significant differences of opinion that remained regarding which principles should govern and how they should operate, the draft articles should not be transformed into a convention, he stated.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico), noting the important role played by international organizations, said that it was a matter of great urgency to develop clear rules regarding their responsibility. If the General Assembly decided to adopt the articles by attaching them to a resolution, it would lend them the same authority as that of the draft articles on State responsibility for internationally wrongful acts. That would also strengthen the progressive development and codification of law which was the purpose of the International Law Commission, he said, adding that if the Committee did not reach agreement on the articles, the items should be kept on its agenda.
ELSADIG ALI SAYED AHMED (Sudan) said that the International Law Commission had relied on articles related to State responsibility for its text, an approach he supported. However, the nature of international organizations meant that a number of alternative solutions had to be found so that the special part they played in international cooperation could be studied. The effectiveness of that principle depended on the nature of the rules in international law, a key to any legal regime. An obstacle would be the use of force in international relations. It was important to know what rules were applied in general. As well, it was important to know the rules for specific international organizations and the relationship between them and Member States. The draft articles showed that there were some rules that were subject to reservations and there was also the question as to what action had been taken. The draft articles should follow the articles on State responsibility, particularly if there was no reason to distinguish between the two.
LUKE TANG (Singapore) said that he was not convinced that the articles embodied consensus views on the law relating to responsibility of international organizations. It was not appropriate to elaborate a convention on the basis of those articles so long as there was no consensus to do the same for the articles on State Responsibility. He noted the special guidance from the general commentary, which was a significant statement from the Commission on the proper legal weight attached to those articles in practice. Apart from the many legal questions confronted in the everyday life of an international organization, interesting policy had surfaced with the establishment of international organizations under national private law. Those organizations had sophisticated membership structures, and in some cases, undertook mandates and operations comparable to those of intergovernmental organizations.
CARLOS GARCÍA REYES (Guatemala), stressing that international organizations should be held accountable, noted that in the general commentary that accompanied the articles, the Commission had said that the main difficulty they faced was the lack of relevant current practice. That meant that the work of the Commission was the work of progressively developing international law. “Law evolves; it is not static,” he said, adding that there were still many difficulties in adopting a binding instrument given the vast diversity of international organizations. He encouraged the Committee to keep discussing the form the articles should take in the future.
ELENA MELIKBEKYAN (Russian Federation) said that the matter at hand was important from the standpoint of relations between international organizations and States. Voicing support for the draft articles by the International Law Commission, she said the document was good and took into account a number of the specific features of international organizations. Some of the provisions did require further investigation, for example the right to self-defence for organizations. In addition, she was not against preparing an international convention or treaty on the basis on those draft articles, she said.
HECTOR ENRIQUE CELARIE LANDAVERDE (El Salvador) said that there was no doubt that the perpetration of acts by international organizations that were wrongful also incurred international responsibility. The draft articles were an endeavour of the progressive development of international law of great significance. The International Law Commission itself had said that some of the articles were based on limited practice. The drafts had not yet achieved the same level of authority as to that for the responsibility of States.
RAFAEL PINO BÉCQUER (Cuba), noting the increasing presence of international organizations in the global arena, said that even the conceptual definition of what was an international organization from a legal and technical standpoint was not easy. The draft articles were comprehensive and took into account the innovative nature and complexity of the topic, as well as the variety of the organizations. The articles had wisely incorporated important principles of international law enshrined in the draft articles on State responsibility. The reference to “harm” was particularly crucial, he said, since that was what determined if there was a violation and whether there would be reparations.
AMIT HEUMANN (Israel) stressed that decisions of certain international courts and tribunals could only serve subsidiary means for the identification of customary international law. Further study was required to consider the degree to which the application of State responsibility principles to situations involving the potential responsibility of international organizations was appropriate. It should also be noted that the draft articles on the Responsibility of States for Internationally Wrongful Acts raised various questions, including the extent to which they reflected customary international law. Furthermore, it was important to address whether the same draft articles could apply uniformly to different types of international organizations, given the fact that international organizations differed from one another substantially. The draft articles raised additional concerns relating to circumstances precluding wrongfulness of acts of international organizations.
AHILA SORNARAJAH (United Kingdom) said that the draft articles were best left in their current form; the time was not yet ripe to consider a draft convention. Several of the draft articles represented progressive development rather than codification of international law. Therefore, it was unlikely that an inevitably long and complex process of negotiation would lead to sufficient consensus for the adoption of a convention. The parallels with the draft articles on States responsibility must be treated with caution. A specific draft article in the State responsibility text might be considered to reflect customary international law, but that was not necessarily the case for the corresponding article in the draft articles on the responsibility of international organizations. There also were limited examples of the draft articles on the responsibility of international organizations being applied in practice. International organizations were incredibly varied and their practice was often based on their own constitutional instruments rather than their acceptable of general principles.
ELAHE MOUSAVINEJAD (Iran) said it was imperative to establish rules under which international organizations could be held accountable for any wrongful act they might have committed. The adoption of the draft articles represented a major step in the codification and development of international law. However, there was doubt on whether the articles on State responsibility were attributable to the draft articles on the responsibility of international organizations in matters such as self-defence, subsidiary or joint responsibility, necessity and counter measure. For that reason, she noted that a general framework of rules governing international responsibility needed to be upheld to ensure the rule of law. As well, the rules of responsibility of international organizations should be contained in the form of a binding treaty, she said.
LIYANA MUHAMMAD FUAD (Malaysia) said in-depth consideration of the draft articles was necessary before a decision on the adoption of the articles and the negotiation of a related convention could be made. Having reviewed the texts and finding them as comprehensive as they sought to be, she underscored that they could only be considered as guidelines. The current formulation for the essential provisions of the draft articles regarding use of terms and self-defence, among others, lacked the necessary clarity and precision to enable accurate interpretation. As such, negotiations toward the development of a convention were therefore untimely and further discussion was needed to better comprehend the draft articles, she said.
CHRISTIANA MURATIDI (Australia) said that the reach of international organizations had never been greater. While norms and institutions ensuring the responsibility of States were well developed, those rules applicable to States did not necessarily directly apply to international organizations. International organizations were different in key respects and any principles governing their behaviour must respect those differences. She welcomed the valuable contribution of the International Law Commission but said there remained significant differences of opinions between Member States on what principles should govern international organizations. It was notable that none of the States mentioned in the Secretary-General’s report said they would support the elaboration of a convention at the present time, she pointed out, adding that she was in agreement with that stance.
ZINOVIA STAVRIDI (Greece) said that the articles would provide useful guidance to national and international courts when dealing with claims on internationally wrongful acts committee by international organizations. However, many of the articles, given the scant practice, moved in the direction of progressive development, and therefore they should not be seen as having acquired the same authority as the corresponding articles on State responsibility, which reflected customary international law. The General Assembly should take note of the draft articles, but at the current stage, she said she was hesitant to go along with the idea of the elaboration of a convention.
MARINA SANDE (Uruguay), expressing gratitude for the draft articles, said that at present that topic was grounded in States’ domestic laws. Noting some parallels between international organizations’ responsibilities and State responsibilities, she said that just as States were independent and subject to international obligations, international organizations also had certain responsibilities. As well, there were also shared responsibilities in which States were jointly responsible alongside international organizations. Observing that there was not enough jurisprudence in the sphere of international organizations, she said that while codification was the goal, more work was required before a convention could be reached.
CRISTINA PUCARINHO (Portugal) said that the draft articles on the responsibility of international organizations were the logical counterpart to the ones concerning the responsibility of States. It was not unreasonable to consider convening a diplomatic conference to adopt a convention on the responsibility of international organizations. However, she would not support any proposal towards removing the topic from the agenda, she stated. The Committee had a duty to contribute towards the stability and strength of the draft articles; otherwise, the work of the Commission risked becoming a never-ending story.