Summary: 27 October 2009, New York - Statement on behalf of the European Community by Mr. Patrick Hetsch, Director, European Commission Legal Service, at the 64th Session of the United Nations General Assembly 6th Committee on Agenda Item 81: Report of the International Law Commission on the Work of its 61st Session, Responsibility of International Organizations
Mr Chairman,
I have the honour to speak on behalf of the European Community.
The European Community commends the Special Rapporteur Mr Gaja for the thoroughness with which he has pursued the topic of the Responsibility of international organizations. The Community also congratulates the International Law Commission with the adoption on first reading of the set of 66 draft articles, together with commentaries thereto, at this year's session, following the discussion of the Special Rapporteur's seventh report on the subject.
The European Community has followed this project for a number of years now and has actively contributed with comments and suggestions throughout the International Law Commission's work, as this topic continues to carry special interest for this organization. The purpose of its contribution is to ensure that the draft articles allow sufficient room for the specificities of a regional integration organization which is, internally, in an advanced stage of transfer of competences by its Member
States to the organization, and externally, a participant in a large number of international treaties alongside States. One of the themes that the European Community has continued to raise is the need to allow for special rules of attribution and responsibility in cases where the Member State is in fact only implementing a binding rule of the international organization.1
In this regard, the European Community notes that the Special Rapporteur has in this year's report taken the unusual step of re-examining certain issues of his previous reports in order take into account comments which were received earlier as well as in response to jurisprudential developments. This is a very welcome step indeed.
With these general comments in mind the European Community wishes to provide at this stage some reflections on a few of the draft articles and commentaries as they stand now.
The European Community would note that the newest articles, contained in parts V and VI carry special weight for the European Community and its Member States. Part V deals with the Responsibility of a State in connection with the act of an international organization. Part VI deals with general provisions.
In regard to part V the European Community has provided comments on the previous version of an article (28) dealing with "International responsibility in case of provision of competence to an international organization". The Community notes with satisfaction that the new version of this article, which has now become article 60, has been renamed "Responsibility of a member State seeking to avoid compliance". This is a good improvement. The new draft article uses the expressions "seeks to avoid"
compliance and "taking advantage of", which clarifies the objective of the article better than the reference to "circumvention".2 In similar vein, the title of the new article no longer uses the expression "provision of competence".
There may however be the need for some further clarifications to take account of, at the very least in the commentaries. The current commentary in relation to article 60 states that an assessment of a specific intention is not required, that 'unwitting' consequences3 are not intended to be covered by the article and that the specific intention can be inferred from the circumstances. Therefore, in the Community's view it would be necessary to clarify that some basic or general level
of intent, i.e., intentional act or conduct, on the part of the Member State, is required.4
Given the very diverse nature of international organizations it is clear that there is a need for a lex specialis provision along the lines adopted in Article 63. This provides that the draft articles do not apply "where and to the extent that" there are special rules of the organization, including those applicable between the organization and its members. In the Community's view the International Law Commission is right to include such a provision. Firstly, a provision on lex
specialis also forms part of the draft articles 2001 on the Responsibility of States for Internationally Wrongful acts (article 55). There is no reason of principle for not including a similar clause in the current draft for international organizations. Secondly, this rule is necessary because the draft articles are meant to have a general character. It would be impossible for the International Law Commission to identify all special rules or take account of the specificities of all or even
certain international organizations. Thirdly, the rule is necessary because for the time being, some of the proposed draft articles are based on limited practice and authority. The draft articles and the commentaries which the International Law Commission will adopt should not stunt the development of further international rules on the subject.
Mr Chairman, I come to my conclusions.
The European Community has been in the past been supportive of the work of the ILC on the subject of responsibility of international organizations and continues to be so. The draft articles and the commentaries as they stand, now, are greatly improved.
Furthermore, the European Community takes good note of the fact that final comments and observations by States and international organizations must be submitted to the UN Secretary-General by 1 January 2011. The Community will also examine the three additional specific questions on which input is sought, pursuant to paragraph 27 of the Report of the International Law Commission on the work of its 61st session.
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