Statement by Mr. DUAN Jielong
Director-General of Treaty and Law Department
Ministry of Foreign Affairs of China

At the Sixth Committee
of the 64th Session of the UN General Assembly

On Item 81:
Report of the International Law Commission on the Work of its 61st Session
Part One: Responsibility of international organizations

New York, 26 October 2009

Mr. Chairman,

Since this is my first time to take the floor at the Sixth Committee of the 64th Session of the General Assembly, please allow me to congratulate you on your election as chairman of the Sixth Committee. I would also like to congratulate other members of the bureau on their election. Now, I would like to comments on the part of "responsibility of international organizations" in the report of the Commission.

Mr. Chairman,

The 61st Session of the International Law Commission considered the Seventh Report on the topic of Responsibility of International Organizations by Mr. Gaja, the Special Rapporteur, and completed the first reading of the draft articles. The Chinese Delegation would like to congratulate the Commission on its achievement and express its appreciation for the effective work done by Mr. Gaja. I would like to take this opportunity to make the following comments:

First, on the methodology and universal applicability of the Draft Articles. The Draft Articles adopted on first reading continue to follow the method of making analogy to the relevant contents of the draft articles on State responsibility and are still mainly based on practice of the United Nations and the European Union. In our view, considering the diversity of international organizations in their categories and functions, we need further in-depth study of differences between international organizations and States in nature, composition, purpose, and function as well as the practice of international organizations other than UN and EU in order to improve the Draft Articles and enhancing their universal applicability and actual guidance effects.

Second, on the definition of international organization. We have noted that in recent years, there have been some new phenomena in practice of international organizations: sometimes non-State entities are able to join certain international organizations together with States. However, as subjects of and being regulated by international law, international organizations we are discussing shall remain intergovernmental organizations which are composed mainly by sovereign States. In this regard, we are of the view that, the definition of international organization contained in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations fits the purpose of this topic. Therefore, we propose to limit in an appropriate way the definition of international organizations in Draft Article 2 to intergovernmental organizations.

Third, on the countermeasure articles. There has been considerable controversy on whether to introduce the concept of countermeasure into the regime of responsibility of international organizations. Taking into account the important difference between international organizations and States, that is, international organizations symbolize a certain degree of centralization of the international community and represent a certain degree of organization and cohesion in the decentralized international community in which States are the main actors, we insist that the introduction of the concept of countermeasure into the regime of responsibility of international organizations would run counter to the abovementioned function assumed by international organizations. We propose the Commission to tackle this issue in a more cautious manner.

Fourth, on the relationship between responsibilities of international organizations and responsibilities of their member States. This issue is addressed in Draft Articles 13-16 and 57-61, however the relevant provisions are not very clear. For example, in cases where both members States and the international organization are responsible for certain wrongful acts, how to distribute the responsibilities between them? Furthermore, in view of the special relationship between member States and international organizations, it is difficult to define in practice whether a member State's act is an act of "aiding or assisting", "directing or controlling" an international organization or an act of participating in the organization's decision-making process and implementing the organization's decisions in accordance with the rules of procedures of the international organization concerned. Therefore, the Chinese Delegation proposes that the Commission should further study the abovementioned issue and provide clarification in the draft articles or commentaries as much as possible.

Thank you, Mr. Chairman.