Statement by Dr. Johan G. Lammers. Legal Adviser of the Ministry of Foreign Affairs of the Kingdom of the Netherlands

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Mr. Chairman, First I would like to commend the International Law Commission and its Special Rapporteur, Mr. Giorgio Gaja, with the result of their work during this year’s session on the topic “Responsibility of international organizations”. My comments with regard to this topic relate in particular to draft Article 15 on decisions, recommendations and authorizations of international organizations.

There is a problem which is related to the definition of international organization in draft Article 2. According to the last sentence of that draft Article, “International organizations may include as members, in addition to States, other entities”. This definition therefore refers to two types of members of international organizations: States and other entities. The concept of “entities” certainly includes international organizations, but is also broader than that. There is no reason why draft Article 15 should follow a more narrow approach. It would therefore be better if draft Article 15 would simply refer to a “member”, or to a “member of the organization”. After all, the purpose of this provision is – as indicated by the Special Rapporteur - to deal with “situations in which an international organization may be responsible for the conduct of its members” (ILC Report, para. 200). Whether the member is a State or another entity – either an international organization or something else – is strictly seen irrelevant.

A second remark relates to the following. According to draft Article 15, paragraphs 1 and 2, an international organization incurs responsibility if it adopts a binding decision, authorization or recommendation when two conditions are fulfilled. First, the act by the member concerned - which is triggered by the decision, authorization or recommendation of the organization - must be internationally wrongful if it would be committed by the organization. This is an appropriate and clear requirement. However, there is a second requirement: the act concerned would have to circumvent an international obligation of the organization concerned. This second criterion was not included in the draft Article as proposed by the Special Rapporteur; it was only briefly mentioned by him in paragraph 44 of his third report to explain the rationale of the draft Article. The meaning and scope of this second criterion are, however, not very clear: and how could it be demonstrated that a certain act circumvents an international obligation of the organization?

Our third remark concerns the distinction between binding decisions in paragraph 1 and other decisions in paragraph 2. This distinction is certainly useful and necessary. In case of a binding decision a member has less room for manoeuvre than in case of an authorization or recommendation. In this connection the question may be raised whether it would not be preferable to use the more general notion of “non-binding decisions” instead of “authorization or recommendation”. This is even suggested under point 9 of the Commentary to draft Article 15. Moreover, while the ILC distinguishes between authorizations and recommendations, there is no distinction as to the implications for responsibility of the organization. In both cases the same requirements are made as those for binding decisions, plus one additional requirement: the member committing the act in question must do so “in reliance on that authorization or recommendation”. This additional requirement has been left out in the case of binding decisions under paragraph 1 of draft Article 15, as members are bound to comply with those decisions.

Mr. Chairman, This brings me to my fourth and most fundamental remark. According to paragraph 2 of draft Article 15, an international organization cannot be held responsible for the mere adoption of an authorization or recommendation. Such responsibility may only arise if the member in fact commits the act in question, and if this is done in reasonable reliance on these non-binding decisions. The question, however, remains whether in practice such situations may arise at all. This question seems justified as the third report by the Special Rapporteur and the ILC Report hardly mention any examples from practice in this context.

If an example is taken from practice, it seems difficult to see how the proposed provision would operate. In Resolution 2105, adopted in 1965, the UN General Assembly “[r]ecognizes the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination and independence and invites all States to provide material and moral assistance to the national liberation movements in colonial Territories”. If a member of the UN would decide to provide such assistance to a particular people under colonial rule, could the colonizing State in such a case claim that the UN carries a responsibility for this resolution, apart from a possible responsibility of the member concerned? What is the threshold for concluding that the act is committed by the member “in reliance on” the resolution?

Mr. Chairman, In order to obtain a better insight in the propriety of paragraph 2 of draft Article 15, the Netherlands would therefore like to invite the Special Rapporteur to give more examples of instances in practice in respect of which that paragraph has found application or, at least, could or should have been applied.

Thank you, Mr. Chairman