NEW YORK, 5 NOVEMBER 2004
STATEMENT BY MR. LUÍS SERRADAS TAVARES, DIRECTOR OF THE DEPARTMENT OF LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN AFFAIRS, TO THE SIXTH COMMITTEE OF THE 59th SESSION OF THE GENERAL ASSEMBLY (Agenda Item 144: Report of the International Law Commission on the work of its Fifty-Sixth Session - Chapter V: Responsibility of International Organisations; Chapter VI: Shared Natural Resources)
I shall comment today on the topic of Responsibility of International Organisations and of Shared Natural Resources.
Responsibility of International Organisations (Chapter V of the Report)
would like to start out by underlining the importance of the topic of "Responsibility of International Organisations" which, together with the draft articles on "State responsibility for internationally wrongful acts", should form in a near future the general framework of the law on international responsibility. Portugal
My Delegation continues to believe that the issue of "Responsibility of International Organisations" is a complex one, as we stated last year. And, as the work of the Special Rapporteur progresses - whose efforts must undoubtedly be commended -, the issue is becoming more and more complex since we have increasingly queries rather than absolute certainties in this matter.
While we agreed at the last session that following the draft articles on State Responsibility was a good starting point, we feel the need to emphasise that the draft articles as an initial structure or basis for the work on this topic can only be a starting point and not the ending result.
International organisations are international law subjects that in several aspects differ from the State. At the same time, in contrast with States, there is much diversity within international organisations.
These two considerations must be taken into account in the drafting of articles concerning the responsibility of international organisations. Not only they cannot mirror at all points the draft articles on State responsibility - the same applying to the commentaries -, but the provisions have also to be conceived in such a way that they encompass the diversity of international organisations and the types of relations that can be established between them and their member States.
We note, once again, that the Commission has asked for particular comments from States on the specific questions indicated in Chapter III of the Report which the Special Rapporteur intends to address only in his report due in 2005.
Nevertheless, my Delegation feels that the general comments just made, as well as some observations with regard to the four draft articles adopted this year, are necessary and we hope they might contribute to the further work of the Rapporteur and of the Commission.
If you allow me, I will now concentrate on the four draft articles adopted this year on the question of attribution.
Starting by article 4, paragraph 1, my Delegation has doubts on whether the latest part of the provision is really necessary. The "whatever position of the organ, official or person holds in the structure of the organization" is the very one that, as paragraphs 2 and 3 - well drafted and placed for us - defines, are characterized under the rules of the organization.
With regard to article 4, paragraph 4, we would prefer a single reference (besides the reference to the constituent instruments) to the "acts of the organization", since that expression also encompasses "decisions" and "resolutions", as well as other category of acts, and we see no reason for singling out these two.
Special attention deserves the reference to the "established practice of the organisation" at the end of this paragraph, as my Delegation already noted last year. Although the reference that is made to "established practice" in the Vienna Convention of 1986 is suitable for the purposes of that Convention, we have serious doubts whether it is suitable for the question of attribution.
We ask the Special Rapporteur to give due consideration to this issue in his future work. What is to be considered the "established practice"? Don't the activities of international organisations depend upon its purposes and functions as specified in their constituent documents? This means, and we think this is a well established rule of international law, that the bodies of international organisations can only exercise the powers granted to them by the constituent instrument with the aim to achieve the goals of the organization.
This being so, there is no room left for any kind of established practice as an autonomous criterion for attribution, but must be regarded under the umbrella of the implied powers theory, as the ICJ seems to consider in its advisory opinion Reparation for Injuries case of 1949, quoted in the relevant part at page 125 of the report of the Commission.
If read as the Special Rapporteur seems to propose, couldn't it lead to consider the practice being relevant for the formation of customary rules namely contra legem?
In view of the above, my Delegation would strongly prefer that paragraph 4 of draft article 4 would read along the following lines:
"4. For the purpose of the present draft article, "rules of the organization" means the constituent instruments and other acts taken by the organisation in accordance with those instruments".
In article 5, we have difficulties with the notion of "organ of a State" and what it is supposed to encompass and with the notion of "effective control". We particularly do not see how an "organ of a State" can be at the disposal and/or under the "effective control" of an international organisation. The proposal is being put forward without reference to any established practice or customary law in the commentaries.
In the matter of attribution, shouldn't we speak rather just about "agents"? And are we were talking about "attribution of conduct" or rather of "attribution of responsibility" as the Special Rapporteur seems to indicate in page 128 of the Report?
With regard to article 7, my Delegation would prefer its deletion. It is one of those cases where a rule that makes sense with regard to States is not conceivable in practice or theory with regard to international organisations. If the act in question is not attributable to the organization under international law, how can it be possible to attribute it by other means, including and mainly, by its own will?
Shared Natural Resources (Chapter VI of the Report)
As indicated, allow me to address now very briefly the topic of Shared Natural Resources.
We would like commend the Special Rapporteur, Mr. Yamada, for having prepared a very useful "Questionnaire" for Governments.
As we signalled last year, we have started to collect the required information and hope to be able to meet the suggested deadline with regard to groundwater.
Thank you Mr. Chairman.