Item 82: Report of the International Law Commission

Chapter VIII: Responsibility of International Organizations

Mr. Chairman,

The Netherlands 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”. Our comments with regard to this topic relate in particular to the draft articles discussed by the ILC this year, and to the specific questions that have been asked by the ILC.

The draft articles discussed and provisionally adopted this year are included in Part Two of the draft articles, entitled “content of the international responsibility of an international organization”. They relate to the legal consequences of internationally wrongful acts of international organizations. Almost every article provisionally adopted this year has been copied from the parallel text of the articles on state responsibility, the only difference being that the term “international organization” replaces the term “State”. The Netherlands fully agrees with the Special Rapporteur and with the ILC that in the drafting of the articles on responsibility of international organizations the articles on state responsibility should be taken as a starting point. But – as the Special Rapporteur and the ILC have emphasized - these articles should never be simply copied. For each article it has to be examined whether changes are necessary because international organizations are different from States. We fully support what the Special Rapporteur has written in para. 2 of his fifth report of 2 May of this year: the responsibility rules for international organizations should not be a “mechanical replica” of the rules on State responsibility, but should be based on new analysis. This approach has also been followed this year. On the basis of an analysis of relevant practice and doctrine the ILC has rightly concluded that, in general, for the area covered by draft Articles 31 to 45 there is one coherent body of rules and principles, and there is hardly any provision where the rules on responsibility of international organizations should deviate from the rules on State responsibility.

With respect to these draft Articles 31 to 45 the Netherlands has two comments. First we would like to repeat a remark concerning terminology that we have made in previous years. Draft Article 35, paragraph 2, refers to “its member State and organizations”. The reference in this phrase to “organizations” is a reference to an international organization as a member of another international organization. My remark is related to the definition of international organization in draft Article 2. According to the last sentence of this draft Article 2, “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 35 should not be in line with draft Article 2 and should follow a more narrow approach. It would therefore be better if draft Article 35 would simply refer to “its members”, as is also done in draft Article 43. Whether the member is a State or another entity – either an international organization or something else – is stricktly seen irrelevant.

Our second remark relating to draft Articles 31 to 45 concerns draft Article 43. This draft article has of course no equivalent in the draft articles on State responsibility, as it deals with an issue that is specific for international organizations. The ILC has indicated in para. 29 of its report that comments in relation to this draft article would be of particular interest to the Commission. The Special Rapporteur did not propose to include what is now in draft Article 43. He discussed the issue, but concluded in para. 30 of his fifth report that the Commission should only state the principle that international organizations are required to provide reparation for their internationally wrongful acts, and that there should be no additional obligation for member States. Within the ILC a discussion took place on this issue, as is summarized in the ILC Report, in the Commentary to draft Article 43.

The Netherlands is in favour of the inclusion of draft Article 43. As it has stated last year, there is no basis for an obligation of members of an organization that are not responsible for an internationally wrongful act of that organization to provide compensation to the injured party, in case the organization would not be in the position to do so. The Special Rapporteur and the ILC agreed to this view. However, the point that there is no such legal basis only relates to the relationship between members of an organization and an injured party. It does not say anything about the relationship between the organization and its members. The question that has been on the table this year is whether or not the draft articles should include a provision dealing with obligations of members towards ‘their’ organization when this organization has to pay reparation. In particular, is there an obligation for members ‘to put the organization into funds’, to enable it to meet its liabilities?

Here the draft articles could follow two approaches. First, they could refrain from addressing the issue, arguing that this is an internal matter for the organization and that the draft articles should not pierce the organization’s veil . As a matter of principle, this approach is, strictly speaking, correct. Just as the articles on state responsibility do not touch upon the question how, through which internal mechanisms, a responsible State would be able to meet an obligation to pay reparation, the same approach could be followed for international organizations. However, practice has regularly demonstrated that international organizations are in a position that is fundamentally different from that of States when it comes to an obligation to pay reparation. On a number of occasions, members of an international organization have refused to pay a part of the budget of the organization even though they were under a legal obligation to pay, in cases where they did not agree with the purpose for which the money that was withheld would be spent. Against this background, for practical reasons and in order to promote the effectiveness of the draft rules under consideration, the Netherlands is in favour of a second approach that could be followed and that is chosen in draft Article 43.

According to this second approach, the draft article should contain a provision that would send a signal to members of international organizations that they would need to enable the organization to make full reparation for the injury caused. Draft Article 43 is such a provision. Its language is sufficiently general and it has the necessary reference to the rules of the organization. Even though it may be considered to some extent as a corpus alienum in the draft articles, it is more important that it addresses a practical problem and that it will promote the effectiveness of the draft articles. In addition, draft Article 43 will strengthen the idea that international organizations as independent legal persons are responsible for their own action. They cannot just be created and be given powers, but subsequently be left alone when the moment has come to bear what may be consequences of all this. The rules and mechanisms included in these draft articles should ensure that international organizations that are responsible for an internationally wrongful act, are in a position to provide compensation to injured parties. This would be in accordance with the key principles of both responsibility rules and the law of international organizations. If an international organization has committed an internationally wrongful act, the core rule is that the organization itself is responsible, as is recognized in draft Article 3. As indicated in the ILC’s definition of international organizations, an international organization is an international legal person separate from its members. With international legal personality come not only rights but also obligations. One of the key obligations is that international legal persons must be able to bear the responsibility for their internationally wrongful acts. If they are not able to do so, this will sooner or later affect the organization’s ability to operate autonomously, as an international legal person, separate from its members. Legal personality cannot be used to escape responsibility. Therefore, at the end of the day, it is in the members’ common interest to ensure that ‘their’ organization can meet its obligations and is able to bear the responsibility for its internationally wrongful acts. Therefore, members have to put ‘their’ organization in a position to provide full reparation to a party that is injured as a consequence of an internationally wrongful act of the organization.

Mr. Chairman,

The Netherlands would finally like to briefly comment on the second and third question on specific issues, mentioned in Chapter III, paragraph 30 of the ILC Report. The second question relates to breaches of an obligation owed to the international community as a whole. If such a breach is caused by a State, Article 48 of the articles on State responsibility provides that States other than the injured State are entitled to claim from the responsible State cessation of the internationally wrongful act and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries of the obligation breached. The ILC has asked whether a similar rule should be included in the responsibility of international organizations articles. The ILC’s question is as follows: “Should a breach of an obligation owed to the international community as a whole be committed by an international organization, would the other organizations or some of them be entitled to make a similar claim?”

The Netherlands is of the view that it is highly unlikely that international organizations would commit breaches of such obligations. At the same time, it cannot be completely excluded that they may do so in the future. For that reason it seems better to include a rule in the draft articles that is similar to Article 48 of the State responsibility articles. The next question is: who is entitled to claim from the responsible international organization cessation of the internationally wrongful act and performance of the obligation of reparation? The ILC’s question is whether other organizations or some of them would be entitled to do so.

There does not seem to be any practice that could assist in formulating answers to these question. However, it would seem too broad or too far fetched to give this right to claim to any other international organization. Moreover, it is uncertain whether it is within the powers of all international organizations to present a such a claim. The main difficulty is of course to find a criterion to distinguish between organizations that should have this competence to claim, and others that should not have such competence. This criterion should limit the competence to claim essentially to organizations that are competent in the area in which the breach of an obligation owed to the international community as a whole has taken place. As the International Court of Justice has stated in its 1949 Reparations for Injuries Advisory Opinion: “Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice”. And more recently, in its 1996 Advisory Opinion to the World Health Organization, the ICJ stated that international organizations “do not, unlike States, possess a general competence. International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which created them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them”. In the articles on State responsibility any State other than an injured State is entitled to make a claim. However, using the words of the ICJ, States have a general competence. There would therefore be no need to limit the category of States entitled to make these claims. But for international organizations this is different. As they have a limited, functional competence, only those organizations that perform functions in the area in which the breach of obligation owed to the international community as a whole has taken place should be entitled to make these claims.

The final question relating to specific issues, mentioned in paragraph 30 of the ILC Report, relates to countermeasures. The question is the following: “If an injured international organization intends to resort to countermeasures, would it encounter further restrictions than those that are listed in articles 49 to 53 of the articles on responsibility of States for internationally wrongful acts?”

Although it is far from daily practice that international organizations are injured and consider resorting to countermeasures, it cannot be excluded that this may happen. There seems to be no reason why the rules laid down in articles 49 to 53 of the articles on responsibility of States for internationally wrongful acts could not be equally applied to international organizations.

Thank you, Mr. Chairman.