Statement of Portugal to the Sixth Committee at the 58th Session of the UN General Assembly

NEW YORK , 28 OCTOBER 2003
STATEMENT BY Mr. LUÍS SERRADAS TAVARES, DIRECTOR OF THE DEPARTMENT OF LEGAL AFFAIRS OF THE PORTUGUESE MINISTRY OF FOREIGN AFFAIRS, TO THE SIXTH COMMITTEE OF THE 58^TH SESSION OF THE UN GENERAL ASSEMBLY (Item 152: Report of the International Law Commission on the work of its Fifty-Fifth Session, Chapter IV: Responsibility of International Organisations)

Since it is the first time I am taking the floor, allow me to congratulate you on your chairmanship of this Committee.

Mr. Chairman,

Let me begin by thanking the Chairman of the International Law Commission, Mr. Enrique Candioti, for his introduction of the Report of the Fifty-Fifth Session of the Commission. My delegation would also like to thank Professor Gaja for the clarifications he provided in response to comments on the topic of the Responsibility of International Organisations.

Portugal has followed attentively in Geneva the current work of the Commission and notes the excellent job achieved once again by the ILC during the last session.

We welcome the fact that once more the Commission has indicated specific issues for each topic on which expressions of views by Governments either in the Sixth Committee or in written form would be of particular interest in providing effective guidance for the Commission on its further work.

Portugal has began to study carefully the specific issues on which comments would be of a particular interest to the Commission regarding Responsibility of International Organisations, Diplomatic Protection, International Liability in case of loss from transboundary harm arising out of hazardous activities and Reservations to Treaties, and will share its preliminary views with the Commission throughout this and the following week.

In this connection, my delegation would like to state that it very much welcomes the Austrian-Swedish initiative to revitalize the debate of the Report of the ILC in the Sixth Committee. We therefore shall speak separately and briefly on each item under consideration and shall also participate with great interest in the informal consultations of this week. Portugal reserves the possibility of submitting also more detailed written comments at a later stage.

Responsibility of International Organisations (Chapter IV of the Report)

Mr. Chairman,

As announced, I shall limit my comments today to the topic of the Responsibility of International Organisations.

The issue is a complex one. We believe that following closely the draft articles on State Responsibility is a good starting point. However, extreme care has to be placed upon the fact that international organisations are international law subjects that in many aspects differ from the State, as well as on the fact that differently than States there is much diversity within international organisations.

Portugal commends the Commission for having begun to consider this topic and for having adopted draft articles 1 to 3 this session. My delegation supports the current wording of articles 1 and 3.

With regard to article 2, like others we agree with the choice made by the ILC that the definition of international organisations should be “functional” in the sense that it services only the purposes of these draft articles. However, we would like to refer our belief that careful consideration should be placed upon the manner in which entities other than States who participate in international organisations are referred to in article 2. While it is true that there are several international organisations where in addition to States other entities also participate, they normally do it in a position of associate or affiliated membership and not of full-membership, without having for example the right to vote. This question leads also to the need to clarify in which circumstances such entities could incur into international responsibility for an act of an international organisation, taking into account paragraph 2 of article 1 of the draft articles.

Also in regard to article 2 and the proposed definition of international organisation, my delegation would like to invite the ILC to give further consideration to the question of whether international organisations can be established by other instruments governed by international law, having in mind the need to distinguish real international organisations from mere bodies of such organisations.

Mr. Chairman,

As to the future work on the topic, Portugal welcomes the intention of the Special Rapporteur to tackle the complex issue of attribution on his next report. In this regard we would like to comment on the specific issues raised by the Commission in Chapter III of the Report:

a)      We support that a general rule on attribution of conduct to international organisations should contain a reference to the “rules of the organisation”.

b)      The definition of “rules of the organisation” that appears in article 2, paragraph 1 (j) of the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations is for my delegation an adequate starting point. However, and having into account that such definition contains the words “in particular”, other components of the rules of the organisation may be considered for a more exhaustive definition for this purpose. We also believe that the reference to the established practice of the organisation deserves also further attention.

c)      The question of the extent to which the conduct of peacekeeping forces is attributable to the contributing State and the extent to which it is attributable to the United Nations is a very complex one than cannot be replied to with a simple answer. First of all, this issue may arise also in connection with other international organizations, namely the ones who assist the United Nations in peacekeeping missions. Secondly, the agreements concluded by the organisation and the contributing State may have specific provisions on the issue of attribution of responsibility. Finally, my delegation believes that a careful examination of the practice of the United Nations and other international organisations in this matter should be undertaken before deciding upon the possible responsibility relationships involving the international organisation and the State.