NEW YORK, 25 OCTOBER 2005
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 60^th SESSION OF THE GENERAL ASSEMBLY –  Item 80: Report of the International Law Commission on the work of its Fifty-Seventh Session (Chapters I-III: Introductory Parts; Chapter VI: Responsibility of International Organisations; Chapter VIII: Expulsion of Aliens; Chapter XII: Other Decisions)

Mr. Chairman,

Since it is the first time I am taking the floor, allow me at the outset to congratulate you on your election as Chairman of the Sixth Committee.

Allow me also to thank the Chairman of the International Law Commission (ILC), Mr. Momtaz, for the introduction of the Report of the Work of the 57^th Session of the ILC.

In my statement today, I would like to start out by making some general comments on the current work of the ILC, its methods of work as well as on its interaction with the Sixth Committee.

I will then address Chapters VI and VIII of the Report of the ILC which deal with the topics, respectively, of the Responsibility of International Organisations and Expulsion of Aliens.

In keeping with the tradition already initiated a couple of years back, my delegation will address the other topics of the Report contained in document A/60/10 later during this week and next week, according to the clusters proposed.

Introductory Parts (Chapters I-III of the Report) and Other Decisions (Chapter XII of the Report)

Mr. Chairman,

We note once again the progress made by the ILC during this year’s session, namely with the first reports on the new topics of Expulsion of Aliens and the Effects of Armed Conflicts on Treaties. We also note the intention of the Commission, as the present quinquennium draws to a close, to round up its work on the issues of Unilateral Acts of States and of Fragmentation of International Law.

My delegation also hopes that soon the ILC will be able to complete the second reading of its work on Diplomatic Protection and on Prevention and Liability for Loss arising from Transboundary Harm.

Portugal looks forward to the moment when the Commission submits to the General Assembly the final product of its work on these topics that are closer to completion. We feel that it would be of the utmost importance that the ILC produces deliverables during the 2002-2006 quinquennium for State’s action, since no work has been finalised since 2001.

While we appreciate that the ILC has included in its current programme of work one new topic on the “obligation to extradite or prosecute” ( Aut dedere aut judicare), and that there are other topics of international law suitable for codification and progressive development, a balance has to be reached between the desirability of enriching international law and a successful outcome of the work of the ILC.

Mr. Chairman,

Together with other delegations, Portugal made some comments last year on the issue of the interaction between the ILC and the Sixth Committee of the United Nations General Assembly.

Many of those comments were well reflected in General Assembly Resolution 59/41. We note with satisfaction that the Special Rapporteurs made increasing references to the views of Governments expressed in the debate during the Sixth Committee.

Portugal is convinced that Governments play increasingly an important role at every stage of the work of codification and progressive development by the International Law Commission. Such interaction no doubt contributes to making the ILC’s work more acceptable to its final addressees, which are mainly, after all, States.

Therefore, we underline once more that further practical measures could be put into effect to enhance this interactivity, such as a system of compilation and quotation of the statements. A verbatim record in electronic form provided by Delegations to the Secretariat with the content of their interventions, instead of having summary records, could be, as we suggested before, put into practice easily.

Moreover, efficiency in the allocation of time by each topic of the ILC Report and proper progression in the scheduled agenda would benefit the purpose of the proposal made previously by Austria and Sweden , and supported by many other States, to revitalise the debate of the ILC Report in the framework of the ‘International Law Week’.

Responsibility of International Organisations (Chapter VI of the Report)

Mr. Chairman,

Let me turn now to the topic of Responsibility of International Organisations.

We note, once more, 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 2006.

As my delegation stated last year, this method of work, which has now became usual, does not seem, in our view, acceptable and deviates attention of Governments from the general progress of the work in the draft articles adopted by the Commission. As with other topics, States should concentrate on commenting the progression of the work and not the forthcoming work in abstract. This is rather our concept of dialogue between the ILC and the Sixth Committee.

Therefore, my Delegation will concentrate, as it did last year, on the nine draft articles provisionally adopted in the current session.

Mr. Chairman,

As my Delegation frequently stated, the topic of “Responsibility of International Organisations” is not an easy one. But, as the work of the Special Rapporteur progresses, complexity, rather than clarity, is increasing.

The first difficulty we find has to do with the pace that the work on the two tracks of the issue of international responsibility is taking. While, on the one hand, the subject of responsibility of States for internationally wrongful acts is, at the moment and as we know, on hold until 2007, the ILC is progressing at full speed with regard to the responsibility of international organisations.

We are of the opinion that these two tracks must form a coherent body of law, and we cannot see how this goal can be achieved given the way the later topic is being currently dealt with.

This difficulty is aggravated, in our view, by the fact that the work produced so far not only follows the general pattern of the articles on responsibility of States for internationally wrongful acts, but that in most instances is limited to a copy with minimal adaptations, i.e. the replacement of the word “State” by the words “international organisations”.

The resemblance in the articles is, year after year, more striking which raises a growing number of problems and incoherence, as we will try to demonstrate below.

There is, furthermore, a general insufficiency in the reasoning behind the translation to the present draft of the State responsibility articles.

We agreed in principle that following the articles on State Responsibility was a good starting point. But such articles should be a mere basis for the work on the topic and not the ending result.

Given the fact that international organisations are international law subjects that in several aspects differ from the State and, in contrast with them, they present a lot of diversity in their structure and nature, we tend to consider the methodology used as a limited one.

At the same time, and on the other hand, when and where the Special Rapporteur tries to innovate, there is much room for doubt left.

The drafting of articles in this topic cannot mirror at all points the articles on State responsibility – the same applying to the commentaries. Instead, the provisions have 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 (and third States and other international organisations).

Mr. Chairman,

This year, the Commission adopted provisionally nine draft articles (articles 8º to 16º) on:

a)       The existence of a breach of an international obligation by an international organisation;

b)       The responsibility of an international organisation in connection with an act of another international organisation or State.

Of these nine articles, only paragraph 2 of article 8 and article 15 innovate with regard to the articles on State responsibility.

With your permission, I will now concentrate on the draft articles adopted this year that follow closely the articles on State responsibility in order to demonstrate the inadequacy of the method.

Article 11, paragraph 1, for example, seems too complex to apply to international organisations due to the circumstance that, in contrast when applied to States, it probably raises issues of attribution.

Complexity, firstly, in determining what is to be considered an aggregate act. Then, because different parts of a composite act may be performed by different organs and/or agents of the organisation in a way in that the control or the direction of each part can fall, either under the sphere of the organisation, or under that of the member States.

Among other instances, one only has to think of the varied nature of organs – intergovernmental, on the one hand, international, on the other - of international organisations like, for instance, the Security Council and the Council of the Union and the United Nations Secretariat or the European Communities Commission.

In the first cases, the responsibility may lay rather or also with the member States, whereas in the second cases it would be an act attributable only (or, at least, mainly) to the organisation.

Mr. Chairman,

Articles 12, 13 and 14 seem, in our opinion, to overlook the nature of international organisations and their relationship with their member States, third States and other international organisations.

Where, with regard to the interaction between sovereign States it is possible to conceive situations of aid and assistance, direction and control and coercion, which would be more difficult when it comes to international organisations. For instance:

How do you determine legally that “that” international organisation is aiding or assisting another State or international organisation for the purposes of article 12?

How can an international organisation, for the purposes of article 13, direct or control a State? Are we talking about a member State , or is it a third State? In the later case, should the solution be the same?

Also for the purposes of article 13, how can an international organisation direct or control another international organisation?

And the same observations apply, even in a more striking manner, to article 14 dealing with coercion. How can an international organisation coerce a member or a third State or another organisation?

Mr. Chairman,

We think that the answers to these questions are incoherent.

Rather, we prefer the approach taken by the Special Rapporteur in envisaging a provision specific to the issue at hand, i.e. article 15 as adopted provisionally by the Commission, which seems, indeed, to cover the situations dealt with in the preceding three articles.

This being so, articles 12, 13, 14 and 15 are overlapping and unnecessary. Moreover, neither practice has been presented nor can we foresee facts that might fall under the provisions of articles 12, 13 and 14 that do not fall necessarily under the provisions of article 15.

In short and in our opinion, provisions set up in articles 12, 13 and 14 should be deleted and the ones in article 15 redrafted. Note that the commentaries to these articles point themselves on that direction (for example, on pages 98 and 100).

Mr. Chairman,

Let us comment now, as we mentioned before, on the only two issues where the Special Rapporteur felt the necessity to introduce new and additional elements to the articles on State responsibility. That is to say, article 8, paragraph 2, and article 15 adopted provisionally by the Commission at the current session.

In article 8, paragraph 2, concerning the “existence of a breach of an international organisation” the Special Rapporteur and the Commission added to the parallel article on State responsibility that “paragraph 1 also applies to the breach of an obligation under international law established by a rule of the international organisation”.

My delegation thinks that the solution proposed is far from being advantageous, for a number of reasons:

-     First, a rule of an international organisation, as source of international responsibility, is necessary an international rule and not merely a rule of the organisation. Therefore, paragraph 2 is redundant in view of paragraph 1, as the Commission seems to recognise in paragraph 6 of its Commentary to this draft article;

-     Second, this approach opens up the endless discussion of whether and when a rule of the organisation is an international or internal rule, which only creates more problems than it solves;

-     Furthermore, as we have had the opportunity to stated previously, we do not in agree with the definition of “rules of the organisation” proposed in draft article 4º/4, namely with regard to the reference of “established practice”. We cannot conceive that the so-called “established practice” of an organisation could give raise autonomously to an international obligation whose breach would constitute an internationally wrongful act, thus entailing the international responsibility of the international organisation.

Mr. Chairman,

Concerning draft article 16, adopted provisionally by the Commission as draft article 15, the need to have a specific provision to address the specificities of international organisations and their way of performing internationally through “decisions, recommendations and authorisations” was recognised by the Special Rapporteur.

As we stated just above, this is in our opinion the way to move forward.

However, this article could benefit if subjected to a thorough analysis and a more linear formulation, also in view of the need to encompass the provisions of draft articles 12, 13 and 14.

Furthermore, we believe that “recommendations” and “authorisations” cannot be put in the same plateau as “binding decisions”. States and international organisations are not exempt to make a prior judgment of the conformity of their conduct with international law when they perform with a large (or a certain) margin of discretion to shape their own conduct, which seems very well to be the case of the “non binding” acts of the organisation.

An important difference remains to be dealt with between the situation when a State acts in accordance with a binding decision of the organisation and when a State acts with a large margin of discretion, as the Commission seems to recognize in paragraph 7 of its commentary to the present draft article.

As a last remark, we would like to point out that, again, due consideration is not given to the fact that the provision applies to member States and also to other international organisations. What about to third States?

When facing an international organisation decision, the member States are ipso facto bound by it and this status is not shared by another international organisation, unless the decision specifically intends it. This is a situation that clearly applies also to third States but the draft article does not refer it.

Mr. Chairman,

As the work on this topic progresses, we feel increasingly that some questions are being overlooked.

One of such questions is that of the fact that in most instances, and differently than what happens with States (independently of issues of jurisdiction and admissibility), the substantive rules on responsibility of international organisations is lacking institutional forums where such issues can be addressed.

This is not a fact that should prevent the codification and progressive development of such substantive rules, but it is sufficiently important not to be forgotten.

Another increasing worry to my delegation is the fact that the Special Rapporteur and the Commission are falling into the temptation to formulate general and abstract rules while having in mind special cases relating only to one international organisation, the European Communities.

It is, of course, acceptable that given the richness of the practice concerning the European Communities that extensive references are made to such practice. But it is also true that the European Communities - and eventually in the near future the European Union - is an organisation with such specificities that with difficulty one could say that it is the model to other international intergovernmental organisations.

Therefore, one could think that it would be a good a step for the progress of this topic to consider excluding from the scope of application of the draft articles on the responsibility of international organisations the regional integration organisations.

Mr. Chairman,

As a final comment, let me stress that, as we said above, the rules drafted should be much simpler and let the rest to the interpreter and applicator of the law.

Maybe a more acceptable path would be a general reference to the applicability, mutatis mutandis, of the principles of State responsibility and then specific draft articles or guidelines dealing with the specific problems that the issue of responsibility of international organisations entails, along the lines of what has already been proposed in the works done on the issue by, for instance, the International Law Association or the Institut de Droit International.

Expulsion of Aliens (Chapter VIII of the Report)

Mr. Chairman,

I come now to the last topic of my intervention today which concerns the Expulsion of Aliens.

We have before us the preliminary report of the Special Rapporteur which contains an overview of the topic as well as a possible outline.

The Commission requested from States information on their practice, including national legislation, which we shall provide in due course.

Since we are still at the initial stages of the work on this issue and there are not yet concrete proposals as to the content or the form of the subject, my delegation shall try for the moment, to formulate some general comments on the overview and possible outline of the topic proposed by the Rapporteur.

The study delivered this year and discussed by the Commission starts out by presenting two concepts which are nuclear for the Rapporteur: “expulsion” and “alien”, both, in the present report, rather inconclusive and arguable.

Discussing not, for the moment, the content of these concepts, the first and general idea that comes to us is the one concerned with the true scope of the subject under discussion.

In spite of the importance of the subject, the starting point proposed by the Commission does not prove what have to be proven in the first place: That the topic deserves an autonomous treatment, meaning that there is sufficient theoretical and practical background to constitute a subject matter to be dealt like it is right now.

After careful consideration, for the moment we could only detect issues that are already dealt either by internal law – issued by States under the international customary provision of the territorial sovereignty -, or by the well established international system of human rights.

This being so, it is of course questionable if a topic that bears such features, well enshrined both in domestic and international law will be suitable for codification and progressive development in an autonomous way. Some further arguments – we think – concur to support these questions.

For example, we do have strong doubts about the qualification of the act of expelling a foreigner by a State as a “unilateral act of State” in the sense of being a source of international law. The expulsion is unilateral. But the source is, in our view, the internal law.

We do agree that, in spite of the existing international customary rule of the State territorial sovereignty with regard to the admission, permanence and expulsion of aliens, the right of the State under that rule is not absolute. Quite on the contrary, the State is bound by a whole set of obligations deriving directly from the international human rights law.

Our delegation believes, once more, this constitutes no novelty. And, as far as our analysis could go, we did not find any other possible limits to the State’s actions than the ones already foreseen in customary and conventional international law.

So, the touchstone of this subject is, for my delegation, the same as it was before the outcome of the report as recognised in the Report itself: on the one hand, we have the power of the State to admit, maintain or expel the foreigners it wants in or from its territory. On the other hand, the same State has to respect the existing international rules concerning the human rights.

Our challenge to the Commission for its further work is therefore the following: not wanting to jeopardize the importance of the topic, neither the possible dignity of the said to future codification, we remain to be convinced by next year’s report with more solid arguments put forward to substantiate its scientific autonomy.

And, if the challenge would be accepted some other questions would profit from a more substantiated explanation:

a)   Whether, in the same study, one should deal together with individual and collective expulsions, namely of national minorities.

b)   The appropriateness of referring to diplomatic protection, which seems out of place in this context. Firstly because it merely arises where there is a wrongful act a State in violation of international law and only after the exhaustion of local remedies.

c)   Besides the issue of diplomatic protection, the Special Rapporteur wants to bring on board the issue of State responsibility with regard to wrongful expulsions, which once again begs the question of whether this is an autonomous question that is not already dealt with under the relevant rules of State responsibility.

We look forward for the progression of the work of the Special Rapporteur on this topic.

Thank you Mr. Chairman.