|Statement by Mr. JIA Guide, Chinese Delegate, at the Sixth Committee Of the 59th Session of the UN General Assembly, on Item 144: Report of the International Law Commission on the work of its fifty-sixth session|
(Responsibility of International Organizations & Shared Natural Resources)
New York, 5 November 2004
As to the topic "responsibility of international organizations", the International Law Commission provisionally adopted at its 56th session four draft articles on attribution of conduct to international organizations. This is cause for congratulations, and the outstanding work of the Special Rapporteur, Mr. Gaja, deserves our appreciation. In preparation for his third report, the Special Rapporteur put three questions to the member states through the ILC.
Here I'd like to briefly comment on the four draft articles adopted by the ILC at its 56th session and the commentaries thereto. Following that, I will give a preliminary response to the three questions.
On the whole we can support the four draft articles provisionally adopted by the Commission on attribution of conduct to international organizations.
Of the four articles, paragraph 1 of Article 4 is of particular importance in that it lays down the general rule on attribution of conduct to international organizations. The definition of "rules of the organization" contained in Article 4 is in principle acceptable to us. The reference to "established practice of theorganization" in the article, however, is not always clear. Whether a specific practice of an international organization constitutes an established practice depends not only on the organization itself but also on the attitude of the respondent State. In practice, States may not always have an opportunity to state their position on whether a practice of an organization constitutes an established practice. It is therefore advisable to take a cautious and case-by-case approach on the question.
Concerning Article 5, in principle we can support the "effective control" criterion used in the provision. This is an appropriate way to address the question of the attribution of "conduct of organs or agents placed at the disposal of an international organization by a State or another international organization". The degree of attribution depends on the degree of effective control. Attribution to a sending State or a sending organization, a receiving organization or double attributions are all real possibilities. It must be borne in mind however that the "effective control" criterion is an evolving rule with some supporting cases but without a common understanding on what kind of control constitutes effective control. This shows that the criterion needs to be further fleshed out through practice.
We have no specific comments at this time on articles 6 and 7. We have however a comment on the commentaries. As articles 4 to 7 deal with attribution of conduct, there is no need to deal with attribution of responsibility. Accordingly it is our belief that there is really no need for paragraph 3 of the commentary to include the sentences: "Practice often focuses on attribution of responsibility rather than on attribution of conduct. This is also true of several legal instruments" or to cite the example of Annex IX of the United Nations Convention on the Law of the Sea.
Next I will give a preliminary response to the three questions of the Special Rapporteur.
Question 1: to what extent the Commission should, in its study of responsibility of international organizations under international law, consider breaches of obligations that an international organization may have towards its member States or its agents? What scope should the Commission give to its study in this regard?
We believe that "breaches of obligations that an international organization may have towards its member States or its agents" fall within the purview of the topic of responsibility of international organizations and should be studied by the Commission. It could undertake the study from the perspective of conduct in breach of international obligations, which is a premise for responsibility of an international organization for its conduct. The study will thus address the question of the legal nature of rules governing relationships between international organizations and their members or agents, including rules of international organizations with a view to ascertaining what relationships are regulated by international law and what rules can be considered as international law. In general, only relationships regulated by international law can involve breaches of international obligations.
Question 2: Could necessity be invoked by an international organization to preclude wrongfulness?
We believe that necessity should not be invoked by an international organization to preclude wrongfulness. International organizations are different from States. While States are entitled to invoke necessity to safeguard their essential interests, it is inappropriate for international organizations to do the same. From the perspective of safeguarding essential interests, there is no need to provide the possibility of invoking necessity to international organizations. Necessity can, of course, be invoked for reasons other than the safeguarding of essential interests and could thus become a pretext for non-compliance with international obligations or for infringing on the rights of another State. It is clear from the commentaries to the ILC draft articles on Responsibility of States for internationally wrongful acts that the draft proposed strict restrictions on the application of the necessity criterion and worded article 25 dealing with necessity in a negative fashion. In fact, the ILC was at the time of drafting articles on State responsibility already aware of the danger of the necessity criterion being abused. If an international organization, such as the United Nations, needs to safeguard its essential interests, it can perfectly well do it pursuant to international law.
Question 3: In the event that a certain conduct, which a member State takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that State and of that organization, would the organization also be regarded as responsible under international law? Would the answer be the same if the State's wrongful conduct was not requested, but only authorized, by the organization?
We believe that these two questions address the attribution of conduct undertaken by a member of an international organization in implementation of a resolution of that organization. To answer these two questions, one could also use the effective control criterion. Here effective control means mainly legal control. If pursuant to a resolution of the organization, a member state is obligated to take a certain action, which is in breach of international law, then in principle both the organization and this member state should bear international responsibility. The degree of their respective responsibility depends on the degree of legal control. Accordingly in the case of action taken by a member state at the request of an organization and in breach of international law, due to the generally higher degree of legal control, the requesting organization bears a relatively higher responsibility. On the other hand, in the case of conduct of a State only authorized by the organization and in breach of international law, given the relatively large latitude of the authorized State in what action, if any, to take, the responsibility of the authorizing organization will be lighter in comparison.
Mr. Chairman, on the topic "shared natural resources", the International Law Commission considered the second report at its 56th session on the topic presented by the Special Rapporteur Ambassador Chusei Yamada.