(Responsibility of International Organizations & Shared Natural Resources)

New York, 5 November 2004

Mr. Chairman,

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. The Special Rapporteur presented a general framework for the law of transboundary aquifer systems, and formulated draft articles for the Introduction, Use of terms, and General Principles. We'd like to express appreciation for the excellent work of the ILC and the Special Rapporteur on this topic.

We support in principle the framework and draft articles presented by the Special Rapporteur. We agree that the word "shared" be dropped from the title of this topic, and that "confined transboundary groundwaters" be replaced by the scientific term "transboundary aquifer systems."

Regarding the relationship between the proposed draft articles under this topic and the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses, since "transboundary aquifer systems" are no longer limited to "confined transboundary groundwaters," but could be connected to surface waters, the question of the relationship between the two instruments does arise. This question can be solved by the legal device of including specific provisions in the draft articles, or alternatively by limiting the scope of the study mainly to "confined" underground "aquifer systems", with the understanding that "aquifer systems" may be linked to surface waters, but such a link should be a weak and negligible one.

Regarding the principles governing uses of "transboundary aquifer systems," the Special Rapporteur believes that this issue requires further study and that the basic principles embodied in the 1997 Convention may not be automatically transposed to the case of "transboundary aquifer systems." We share this view. The Commission may also wish to consider including the principle of sovereignty of States over their natural resources in this or another part of the draft articles.

Regarding whether to use the term "significant harm" in Article 4, we believe that this concept seems to be applicable here, as it is already applied under the topic "International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law." What constitutes "significant harm" needs to be judged on the merit of a given case. We also believe that the term "harm" here means harm caused to other States. We are of the view that the rights and obligations of States in activities that may affect transboundary aquifer systems, such as in the uses, protection and management of "transboundary aquifers", should be emphasized to give prominence to the status of States in these provisions. Of course, this should be without prejudice to the use of resources by specific individuals and groups, which should be governed by domestic measures taken by the State.

The question of liability per se in respect of compensation in Article 4 could be left to the exercise which the Commission is undertaking under the topic of "International liability for injurious consequences arising out of acts not prohibited by international law." There is no need to over-regulate liability under the current topic unless harm results from a violation of international law.

As regards the final form of the proposals, we agree with the Special Rapporteur that it can be decided after progress is achieved on substantive matters. Although the Special Rapporteur presented the proposals in the form of draft articles and used the term "draft convention" in the report, this does not prejudge the final form.

This concludes my comments.

Thank you, Mr. Chairman.