Summary: November 5, 2004: STATEMENT ON BEHALF OF THE EUROPEAN UNION BY DR. JOHAN G. LAMMERS, LEGAL ADVISER, MFA. Item 144: Report of the International Law Commission on the work of its fifty-sixth session. Responsibility of International Organizations. SIXTH COMMITTEE - 59TH SESSION OF THE GENERAL ASSEMBLY (New York)
Mr. Chairman,
I am speaking on behalf of the European Union.
We are grateful that the International Law Commission is making speedy progress on the topic of "responsibility of International organizations", undoubtedly in no small measure due to the hard and fine work of its rapporteur Mr. Giorgio Gaja.
As stated in last years' intervention, we believe that the ILC should carefully consider the large diversity among international organizations, when adapting the articles on state responsibility to the topic of responsibility of international organizations. The European Union and the European Community are themselves testimony to this diversity and given the specific subject matter under discussion here today (and with your consent, Mr. Chairman) I would like the remainder of the Statement to
be made by Mr. Kuijper from the European Commission.
Mr. Chairman,
The European Community (EC) is undoubtedly an international organization with special features as envisaged in the founding Treaties. According to those Treaties, Member States have transferred some of their competences to the organization. However, the EC is far from being a State; its institutions do not generally enforce regulations or other EC acts that are directly applicable in Member States' legal orders. For the application of those acts the EC relies on its Member States' and their
authorities.
In view of the specific character of the EC, we believe that there are some considerations that the ILC should take into account in dealing with the responsibility of International Organizations.
According to article 3(2) of the Draft Articles, there is an international wrongful act of an international organization when conduct consisting of an act or omission:
a. is attributable to the international organization under international law, and
b. constitutes a breach of an international obligation of that organization.
Therefore the normal situation described in article 3(2) is that conduct is attributed to the organization that is the bearer of the obligation. The EC is bearer of many international obligations (especially because it has concluded many treaties). However sometimes not only behaviour of its own organs, but also of organs of its Member States may breach such obligations. Such behaviour would, therefore, be prima facie attributable to those Member States.
I will give an example of this situation: the EC has contracted a certain tariff treatment with third States through an agreement or within the framework of the WTO. The third States concerned find that this agreement is being breached, but by whom? Not by the EC's organs, but by the Member States' customs authorities that are charged with implementing Community law. Hence their natural reaction is to blame the Member States concerned. In short, there is separation between responsibility and
attribution: the responsibility trail leads to the EC, but the attribution trail to one or more Member States.
This example illustrates why we feel that there is a need to address the special situation of the Community within the framework of the draft articles.
One could think of the following ways to accommodate the special situation of the EC and other potentially similar organizations:
1) special rules of attribution, so that actions of Member State organs can be attributed to the organization;
2) there could be special rules for responsibility so that responsibility can be charged to the organization, even if Member States' organs were the prime actors of a breach of an obligation borne by the organisation;
Or (3) one could consider the possibility that EC and organizations like it should benefit of a special exception or of a kind of special savings clause for such organizations (a possibility we also mentioned last year).
The last possibility we would rather not contemplate at this early stage. We favour to continue to work for one of the two other solutions and would be interested to hear whether there are other international organizations which have the same problems.
Mr. Chairman,
Finally some points on Draft Articles 4 and 5
Under Draft Article 4 (4) the rules of the organization are defined with reference to the constituent instruments, decisions, resolutions, and other acts taken by the organization in accordance with those instruments and established practice of the organization. This definition could be further improved. Putting less stress on the element of time, a reference to "generally accepted" practice would seem more appropriate. Furthermore, we miss a reference to general principles of law of the
organization (an important category of rules recognized by our European Court of Justice) and to the case law of an organization's court, either in the text or at least in the commentary thereto.
Draft Article 5 aptly summarizes the relevant principles for attribution of conduct of organs or agents placed at the disposal of international organization by a State or another international organization. From the commentary its results that the ILC is thinking primarily in terms of factual control (inspired largely by UN practice with respect to peace-keeping operations), whereas it would be helpful to the specific EC situation to think in terms of effective legal
control.
Mr. Chairman,
We continue to support the work of the ILC on this topic and the search for solutions to the issues outlined above.
Thank you, Mr. Chairman.
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