25 October 11
International Law Commission: Statement by Prof. Dr. Liesbeth Lijnzaad, Legal Adviser, at the Report of the International Law Commission
Statement by Prof. Dr. Liesbeth Lijnzaad
Legal Adviser Ministry of Foreign Affairs
United Nations General Assembly 66th session
Sixth Committee agenda item 81 Report of the International Law Commission Part I
New York, 25 October 2011
- Like many speakers before me I wish to first of all pay tribute to judge Antonio Cassese who passed away just a few days ago. Judge Cassese spent a long time in The Hague while working for ICTY and more recently for the Lebanon Tribunal. He was an active lawyer, always eager to talk about legal issues – whether to diplomats or students. He kept challenging us to reflect on ending impunity. Nino was a remarkable and much respected man who will be missed, in The Hague and elsewhere.
- On behalf of the Netherlands I would like to begin by thanking the members of the International Law Commission and the Secretariat for their work during the 63nd session, and more generally over these past five years. Also I would like to congratulate Ms. Concepción Escobar Hernández and Mr. Mohammad Bello Adoke on their recent election to the Commission. The Netherlands is pleased to share its comments on the 2011 report of the ILC. At the outset, I would express our appreciation for the reflection of the ILC on its ways of work. It is necessary to regularly look at how work is undertaken in order to improve efficiency and implement contemporary working methods. In that respect I would support the suggestion for the ILC to keep an attendance report.
Chapter IV (Reservation to Treaties)
- The Netherlands would like to express its respect for the considerable work by the Commission and the Special Rapporteur, which resulted in the Guide to Practice on Reservations to Treaties. The Special Rapporteur has been engaged with this issue since 1994, and his extensive work has provided a wealth of insight into this difficult part of the law of treaties – our knowledge of the subject has increased by the systematic approach of professeur Pellet. We would however like to reiterate our view that the Guide to Practice departs from the original aim, which was to prepare practical guidelines useful for the daily work of government lawyers, officials of international organizations and members of supervisory bodies. I would like to make a few comments on the substance of the final report.
- We appreciate the attention given to the so-called reservations dialogue, and the explanation in the ILC report of this dialogue as a process to facilitate better understanding of the reservations and their impact. It is clearly important to ensure the effectiveness of such dialogues, which benefit from the flexibility of diplomatic discussions. We are attached to the reservations dialogue as a useful tool, and have indeed seen that this dialogue can be effective in preventing far-reaching reservations, or in ensuring their withdrawal. However, we consider the proposal to establish an Observatory on Reservations within the 6th Committee to be ill-advised. Given the informal character of the reservations dialogue, we see little merit in formalizing such a mechanism in a political forum. The success of existing Observatories – and I only know of two established mechanisms – relies on the active participation of a group of States with a unity of purpose and determination. The success of these mechanisms is due to the limited group of States participating in the discussion, the confidentiality and the mutual respect. Establishing a similar mechanism in the 6th Committee may be transferring a good idea to an inappropriate setting where it risks losing its potential effectiveness. And a further thought – the suggestion that there may be a reason to consider “dispute settlement on reservations” appears to us as somewhat strange and unrealistic. There is after all no obligation to accept reservations, even if the Vienna Convention seems to suggest acceptance. The onus is on the reserving State to ensure that its reservation will be acceptable to other States, there is no need for a mechanism to settle differences of view, as this is about choices with respect to establishing treaty relations. Reservations are after all of a contractual nature and a difference of view may translate in States choosing not to accept a reservation – that in itself does not constitute a dispute. We do believe that the proposed Observatory has fundamental flaws and are unable to support this idea.
- Mr. Chairman,
- We cannot agree with the rather cavalier characterization in guideline 1.1.3 of statements regarding the territorial scope of treaties as reservations. We consider that Article 29 of the Vienna Convention on the Law of Treaties is the standard in these situations and this seems to not have been sufficiently considered in the formulation of this guideline.
- The late formulation of reservations (guideline 2.3.1) is a source of concern to my delegation. We strongly disagree that a late reservation is deemed to be accepted unless one state party objects to it. There is no practice supporting this. For the Netherlands a reservation formulated in contravention to article 23 of the Vienna Convention will not be acceptable, even if my government would not object to it. We are actually rather surprised that the Commission included this guideline, as it is at odds with the Commission’s recommendation to safeguard the integrity of multilateral treaties.
- Regarding interpretative declarations, it is in our view hardly common practice that states parties, as guidelines 2.9.1 and 2.9.2 state, approve or oppose interpretative declarations. Presumptions regarding the consequences of the silence of subjects of international law with regard to these declarations, or the conduct of states on the basis of these declarations belong in our opinion to other parts of international law and should be well left alone in a Guide to Practice.
- Chapter V (responsibility of International Organisations)
- I would now like to turn to the topic of the Responsibility of International Organizations. I would like to commend the Commission with the important result of their work on this topic during this year’s session, especially the Special Rapporteur for his outstanding contribution.
- The Draft Articles have sometimes been criticized during the last few years. This criticism relates, in short, to three issues: first, that there is far too much variety amongst international organizations to justify one common set of articles on their responsibility; second, these draft articles have been copied too easily from the State responsibility articles, without sufficiently recognizing the differences between international organizations and States; and three, there is not sufficient practice in this area.
- First of all, it is of course true that there is great variety amongst international organizations. However, international organizations also have a number of key characteristics in common. As legal persons, they may all commit internationally wrongful acts. It is important, in an era in which international organizations increasingly play important roles in international affairs, that there is a set of rules available specifying under which conditions international organizations can be held responsible for such acts. Moreover, not only between international organizations, but also amongst States there are differences; from States having a very small population and territory to States having a population of hundreds of millions of people and a very large territory, from States that are very poor to States that are very rich. Nevertheless, there is only one set of articles on State responsibility.
- A second point of criticism is that these draft articles more or less copy the articles on state responsibility. A first question in this regard is whether the Commission has rightly decided, at the outset of its work on this issue, to take as a starting point the articles on State responsibility. In our view the Commission has rightly decided not to reinvent the wheel. It has rightly avoided to restart discussing complex responsibility issues where there was clearly no need to do so. The Commission has approached the issue of responsibility of international organizations with an open mind. International organizations have been invited to give comments and inform the Commission about their practice. The Special Rapporteur has carefully collected and analyzed all available practice, most recently in his report of this year. Often, this has not resulted in draft articles that depart from the State responsibility articles. But this has never happened without extensive prior analysis and discussion. Moreover, on various issues, the Commission has concluded that the State responsibility articles had to be adjusted to fit international organizations, or has introduced new articles. If we now compare the two sets of articles on responsibility, we have to conclude that there are indeed many more differences than there are differences between the 1969 and 1986 Vienna Conventions on the Law of Treaties.
- A third point of criticism is that there is limited practice in this area. We agree with the observations of the Commission relating to this. In addition, we would like to stress that in the recent years there is increasing practice where it is claimed that international organizations have committed internationally wrongful acts. Such practice will continue, as it is also likely that the activities of international organizations will further expand. In these circumstances, it is vital to have a system in place, a set of general rules on the responsibility of international organizations. Alternatively, national and international courts that are confronted with claims against international organizations and against members of international organizations have no choice but to seek inspiration from the State responsibility articles, and use these articles by analogy. They would have to do so in an ad hoc and improvised manner, each court taking its own decision whether and to what extent the State responsibility articles can be applied mutatis mutandis. In our view it is to be preferred that these courts benefit from the existence of general rules on responsibility of international organizations, drafted in an open and multilateral process, rather than apply the analogy each by themselves. Moreover, the absence of such articles may impede the future exercise of powers by international organizations, as well as the possible establishment of new international organizations whenever the need arises.
- It is therefore our conclusion that the three and must be rejected. The General Assembly should now take note of these draft articles. This is also necessary since numerous national and international courts have sought guidance, in recent years, on questions concerning the responsibility of international organizations and their members, and have referred to the work of the Commission on this issue. After the General Assembly has taken note of the draft articles, these provisions will provide further guidance not only to states and international organizations, but to national and international courts as well, in an area in which it may be expected that such guidance is necessary during the coming years. At the same time, it is wise for the General Assembly to not now propose the elaboration of a convention, as practice is limited and has only in recent years become more substantial.
- In this context I would also like to thank the UN Legal Counsel, Ms. O’Brien, for her statement yesterday. It has been essential for the ILC, in its work on this topic, to have input from international organizations. The input of the UN is of particular importance, as the UN has extensive practical experience in dealing with responsibility issues. For good reasons therefore, the ILC has taken this input seriously. It has followed a number of suggestions made by the UN, as is clear from the text of the draft articles and the commentaries. For example, the refinement of the definition of an ‘agent’ in Art. 2. But also, vice versa, it was good to learn from the Legal Counsel that the UN is taking the draft articles seriously in its daily practice, for example in relation to the support provided by the UN Force MONUSCO to the national army of the Democratic Republic of the Congo. As Ms. O’Brien said, the real test of the draft articles will now be in their practical application. It is therefore important that the General Assembly will adopt a resolution during this session in which it takes note of these draft articles.
- I would like to conclude by emphasizing that the rules on responsibility of international organizations are a necessary step in the development of the international legal order, in which an increasing number of activities are carried out by international organizations. It cannot be excluded that some of these activities amount to internationally wrongful acts, and it is no longer accepted that international organizations cannot be held accountable.
Thank you, Mr. Chairman.