Summary: EU Presidency Statement - Responsibility of International Organisations (25 October 2005: New York)
Statement by Sir Michael Wood Legal Adviser Foreign and Commonwealth Office, the United Kingdom Mission of Great Britain and Northern Ireland to the United Nations, and by Pieter Jan Kuijper, Principal Legal Adviser European Commission, on behalf of the European Union,at the United Nations General Assembly, Sixth Committee, New York
Responsibility of International Organisations
Mr. Chairman
I have the honour to speak on behalf of the European Union. The following countries align themselves with this statement: the acceding countries Bulgaria and Romania; the candidate countries Croatia* and Turkey; the countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Serbia and Montenegro; and other aligning countries Moldova and Ukraine.
We welcome the progress made by the International Law Commission on "Responsibility of International Organizations" and we congratulate the Special Rapporteur, Professor Giorgio Gaja, for his third report.
With your consent, Mr Chairman, I would like the remainder of the Statement to be delivered by the representative of the European Commission, Mr. Kuijper. He will express the view of the European Community on those points which are directly relevant to the Community.
European Commission
Mr. Chairman,
The European Community attaches great importance to the work of the International Law Commission on the responsibility of international organisations, but necessarily looks at it from the perspective of a rather specific international organisation. The European Community will restrict its remarks to a few aspects of the draft articles and react, probably in writing, to the questions at the beginning of the report at a later stage.
Let me first address Chapter III on "breach of an international obligation".
Article 8 (2) on non-compliance with an "obligation under international law established by a rule of the international organization", raises some questions. The rule does not give any guidance on which sort of rules of the international organization qualify as "obligations under international law". Certainly, in the case of the European Community, the important question would arise whether a violation of secondary Community law by an institution of the Community triggers the international
responsibility of the European Community. Given that the European Court of Justice has characterized the European Community ever since the nineteen-sixties as a legal order of its own, the prevailing view inside the Community would be that it does not. (And the same would be true, I would say in passing, of the breach of secondary Community law by a Member State). The commentary may be of some help in this respect, because it states that the Article does not intend to take a position in this
debate between those who regard the "internal" law of international organizations as partly or wholly autonomous in relation to international law and those who regard it as an integral part of international law. Nevertheless, it remains an open question to the European Community whether Article 8(2) is an essential part of the draft articles.
Mr. Chairman,
Let me now turn to Chapter IV. It concerns "responsibility of an international organization in connection with the act of a State or another international organization".
Here, the Community notes with interest how the ILC approached the issue of "normative control" of decisions, recommendations and authorizations of international organizations in Draft Article 15. We agree with the Chairman of the Drafting Committee that there are no clear practical examples to assist us and the ILC in formulating this particular provision. We would therefore suggest to the ILC to employ great care in its further discussion.
The EC welcomes that Article 15 distinguishes between binding decisions of an international organization (paragraph 1) and mere authorisations or recommendations (paragraph 2). The underlying idea is that international organizations should not be liable for acts of its Member states, if the latter were not required by the organization to take a certain action, but decided to do so of their own volition, independently of the authorization or recommendation from the international
organization.
Nevertheless, the distinction may not be refined enough. To give a Community law example, under Article 249 EC Treaty, secondary Community law may be binding in its entirety and directly applicable in all Member States (regulations), or only binding as to the result to be achieved, leaving the national authorities the choice of form and methods (directives), or binding only upon those to whom it is addressed (decisions). It is suggested that an obligation of result (as in a Community directive)
comes very close to a binding decision, but nevertheless may leave a certain amount of discretion to the Member States of an organization. Therefore, paragraphs 1) and 2) of draft Article 15 may well be in need of some refinement on this point from our point of view.
Coming back to paragraph 1 of Article 15, here the mandatory requirement for Member States to commit an internationally wrongful act imposed by an international organization must also "circumvent" an international obligation of the international organization.
However, the European Community wonders whether the notion of circumvention is indispensable in the light of the Commission's own comment no.5 on Article 15. If - as the Commentary puts it - compliance by members with a binding decision is to be expected, the whole notion of circumvention may become superfluous. In the final part of Article 15(1) "circumvent" could then better be read as "breach". On the other hand, if one takes the view that the idea that the mere adoption of a law constitutes
a breach of international law is restricted to the limited domain of WTO law only and has not taken hold in general international law, or depends in any case on what the law actually states, then the notion of circumvention does have perhaps a function in Article 15 (1). It would seem to us commendable that the Commission revisits this article and the comments pertaining to it at a later stage in order to create greater clarity on this issue.
Mr. Chairman,
The preceding remarks are questions and suggestions on how to cope with particularly difficult issues of international law taking into account the specific features and practice of the European Community.
We continue to support the ILC's current work and follow it with great interest and we thank Giorgio Gaja for his unstinting and meticulous work as rapporteur. Thank you Mr. Chairman."
*Croatia continues to be part of the Stabilisation and Association Process
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