26 Oct 2009
STATEMENT BY MR LIONEL YEE, DELEGATE TO THE 64TH SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 81, ON CHAPTERS I, II, III AND IV OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 61ST SESSION, SIXTH COMMITTEE, 26 OCTOBER 2009
Mr Chairman,
1. My delegation would like to thank the International Law Commission for its comprehensive report on the work of its 61st session ("the Report").
2. The work undertaken by the Commission is important in clarifying, codifying and progressively developing international law and contributes in no small measure to the promotion of the rule of law. The Commission's contribution is especially significant as the topics under its purview frequently involve complex and nascent areas of international law. In this regard, my delegation appreciates the Commission's practice of actively engaging member States when it carries out its work, by seeking and taking into account their views and comments. My delegation commits to giving our full support for the work of the Commission and we will endeavour to respond to the questions the Commission has put to the member States in Chapter III of the Report.
3. With regard to Chapter IV of the Report, my delegation congratulates the Commission on the completion, on first reading, of the draft articles on the Responsibility of International Organizations. My delegation thanks the Special Rapporteur, Professor Giorgio Gaja, for his efforts in this connection. The draft articles and the accompanying commentaries are a substantial contribution on a topic which is of considerable relevance and significance. An increasing level of state-to-state interaction takes place today in the context of an international organization. The activities of many international organizations have, in turn, become more diverse and complex. The Association of Southeast Asian Nations (or ASEAN), of which Singapore is a member, is a case in point. ASEAN adopted a Charter last year, which rationalised frameworks and processes and, in some cases, established new ones to support the increasing diversity and complexity of the organization's activities. That diversity and complexity means that there is increasing likelihood that issues of international responsibility of the organization will arise. Therefore, the Commission's work is particularly pertinent and helpful in this respect.
4. The proliferation of international organizations presents a twofold challenge. First, not every international organization is cut from the same cloth. They may be multilateral, and primarily intergovernmental-as in the case of the present forum. They may also be much smaller, and may include non-State entities. Today, new and innovative structures abound. Second, international organizations engage in a broad spectrum of legally significant activity, ranging from procurement to peacekeeping operations. In these circumstances, crafting a set of legal rules to govern the international responsibility of an international organization for a wrongful act, as well as the international responsibility of a State for the wrongful act of an international organization is a challenging endeavour.
5. In many ways, the draft articles on the Responsibility of International Organizations build on concepts that already exist in the draft articles on State Responsibility, but in just as many respects, they are innovative. This is true, for example, of draft articles 16 and 60. Draft article 16 deals with the responsibility of an international organization for an act committed by a member State or another international organization. Draft article 60 concerns an analogous situation, which is the responsibility of a member State for an act of an international organization.
6. These two draft articles, and their commentaries, address the difficult conceptual and practical problem presented by the interface between States members - the "principals", if you will - and the international organization, their "agent". There is much to commend in the Commission's work on this problem. My delegation supports the basic principle that member States should not be able to circumvent their international obligations by "outsourcing" liability to an international organization, just as international organizations should not be able to do the same by "outsourcing" liability to a member State. Although the Commission seeks to elucidate the text of both draft articles in their respective commentaries, including references and explanations based on relevant regional jurisprudence, the reality is that there is precious little State practice to go on. Draft articles 16 and 60 are, therefore, true instances of an effort by the Commission to progressively develop international law.
7. My delegation will study and provide its comments on these two articles in due course. We would, at this point, make the following three initial observations.
8. First, both draft articles rely on the element of "circumvention" or the avoidance of international obligations by one entity "outsourcing" conduct to another. Although we agree that this is a necessary element, there is uncertainty over what precisely it is intended to cover. In its commentary to draft article 16, the Commission explains that the existence of a specific intention of circumventing is not required, and that the fact of circumvention "may be inferred from the circumstances". It may be worthwhile to elaborate a little further on what such circumstances might be, in order to assist in the application of these draft articles. The same comment applies to the element of "seeking to avoid compliance" in draft article 60.
9. Second, draft article 16, paragraph 2(b) sets out a requirement of causality between the authorization or recommendation of the international organization, and the act of the State member or other international organization in question. In its commentary to draft article 16, the Commission explains that the application of paragraph 2(b) requires a "contextual analysis of the role that the authorization or recommendation actually plays in determining the conduct of the member State or international organization". The commentary, however, leaves it open to debate as to whether what is to be determined is a mere factual link, or whether something further, such as some element of predominant purpose, is required. Again, it may be worth clarifying this issue further.
10. Third, similar questions arise in draft article 60 on the required nexus between the conduct of the member State and that of the international organization in order for the member State to be internationally responsible for the conduct of the international organization. The commentary states that for international responsibility to arise, there must be a "significant link" between the conduct of the member State and that of the international organization, and further, that the act of the international organization has to be prompted by the member State. It will be helpful for the Commission to clarify this element of "significant link" and the distinction, if any, between this element and the element of causality in draft Article 16, paragraph (2)(b).
11. These are a few of my delegation's initial observations on the draft articles and commentaries on Responsibility of International Organizations. We have noted the specific issues on which comments would be of particular interest to the Commission at paragraph 27 of the Report. Singapore will study these issues and respond in due course.
Thank you, Mr Chairman.