UN: EU Statement; Report of the International Law Commission, Responsibility of International Organisations

UN: EU Statement; Report of the International Law Commission, Responsibility of International Organisations

UN 61st Session; VI Committee, Agenda Item 78: Report of the International Law Commission, Responsibility of International Organisations
New York, 27 October 2006

Statement by Ms. Marja Lehto, Director, Ministry for Foreign Affairs of  Finland, on behalf of the European Union

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Mr. Chairman,

I have the honour to speak on behalf of the European Union.

The Acceding Countries Bulgaria and Romania, the Candidate Countries Turkey and the former Yugoslav Republic of Macedonia*, the countries of the Stabilisation and Association Process and potential candidates Albania, Bosnia and Herzegovina and Serbia, as well as Ukraine and the Republic of Moldova align themselves with this declaration.

* the former Yugoslav Republic of Macedonia continue to be part of the Stabilisation and Association Process.

Mr. Chairman,

The European Union congratulates the ILC and its special rapporteur, Professor Gaja, on the rapid progress of the work on the responsibility of international organizations. As in previous years, however, we  also express some concerns as to the feasibility of subsuming all international organizations under the terms of this one draft in the light of the highly diverse nature of international organizations, of which the European Union and the European Community are themselves examples.

We also recall that the European Union and Community are rather specific in nature; as we have said on earlier occasions, in particular the Community is characterized by the direct applicability of Community law in the Member States and the supremacy of Community law over national law.

The draft articles 17-24 on circumstances precluding wrongfulness follow very closely the model of the relevant articles on State Responsibility.  In some cases this may be correct, but in others this may not be the case and comments may be called for.

When discussing draft Article 17 on consent, the Special Rapporteur (SR) refers to invitations issued from States to the UN to verify their election process.  As the SR correctly notes, there is a wide variety of civil crisis management missions of the European Union for which the Presidency of the EU and the Commission are jointly responsible; they are also based on the explicit consent of the country concerned.  Accordingly, draft Article 17 is of vital importance for many external relations activities of the Union, which could otherwise be seen as undue interference in domestic affairs of third countries.

As regards draft Article 22 on necessity, the SR reports that a majority of statements in the 6th committee had been in favour of including such an article among the circumstances precluding wrongfulness.  However, some EU Member States voiced some scepticism in this regard, stressing the lack of relevant practice, the risk of abuse or the need to provide stricter conditions than those applying to States.  The ILC has tried to take those points into consideration when drafting the new Article 22 of the project.  The text of the Drafting Committee requires that necessity may only be invoked by an international organization where it is

"(a) the only means for the organization to safeguard an essential interest of the international community as a whole against a grave and imminent peril, when the organization has, in accordance with international law, the function to protect that interest; (…)"

This last qualifier may be seen as a safeguard against abuse and a stricter condition than the one applying to states under Article 25 of the Articles on State Responsibility.  The present formulation seeks to create a nexus between the necessity and the organizations' tasks and powers.  The latter are usually defined in the organization's founding treaty.  However, as the SR notes, an organization may also exercise implied powers.  Hence, the reference to the organization's function to protect that interest in accordance with international law seems to aptly bring home this point.  This article on necessity is now very carefully formulated, but it remains to be seen whether it can muster the necessary support.

Our overall assessment is that the new draft articles pose some challenging questions. The EU, except for some specific points, can broadly go along with draft articles 17-24 on circumstances precluding wrongfulness, but we have serious worries as regards certain details of the new draft articles 28 and 29 in the chapter on responsibility of a State in connection with the act of an international organization.  We hope that the ILC will take good note of these worries.

In order to further bolster this overall assessment there are a number of  other detailed comments to be made on the draft articles presented to us by the ILC. In the light of the specific subject matter such complementary comments will be made later on behalf of the European Community by the representative of the European Commission.

I thank you.