52. Department of State statement at UN 6th Committee (ILC report) re responsibility of international organizations (October 30, 2006) 2006)

United States Statement
61st UNGA Sixth Committee – Agenda Item 78:
Report of the International Law Commission on the Work of its 58th Session
Shared Natural Resources; Responsibility of International Organizations

Mr. Chairman, I would like to thank the chairman of the Commission, Mr. Guillaume Pambou-Tchivounda, for his introduction of the Commission’s report, and the Commission’s work in adopting on first reading draft articles on the law of transboundary aquifers. We greatly appreciate the contribution that the Special Rapporteur, Ambassador Chusei Yamada, has made to this topic.

Before providing our comments on this topic, I should note that we plan to continue our review of the draft articles and commentaries and look forward to considering the views of other governments, including those presented at this meeting. Thus, my comments will only be preliminary.

We believe that the work on transboundary aquifers constitutes an important advance in providing a possible framework for the reasonable use and protection of underground aquifers, which are playing an increasingly important role as water sources for human populations.

Nevertheless, as we have noted before, there still is much to learn about transboundary aquifers in general, and specific aquifer conditions and state practice vary widely. For this reason, we continue to prefer context-specific arrangements as the best way to address pressures on transboundary groundwaters. Numerous factors might appropriately be taken into account in any specific negotiation, such as hydrological characteristics of the aquifer at issue; present uses and expectations regarding future uses; climate conditions and expectations; and economic, social, and cultural considerations.

But we recognize that many states have expressed an interest in some form of global framework to guide the negotiation of such arrangements. If this approach is taken, the proposed articles should then take the form of a convention to which states may choose to adhere or not, given the fact that they go well beyond current law and practice. In that event, the text should include appropriate final articles for a convention and additional articles that establish the relationship between this convention and other bilateral or regional arrangements. In particular, the Commission should be careful not to supercede existing bilateral or regional arrangements or to limit the flexibility of states in entering into such arrangements.

Finally, we note the on-going discussion regarding future work on the topic of shared natural resources. Given the complexity of transboundary aquifers as a topic, we believe that the Commission should continue to pursue this aspect of shared natural resources to its completion, rather than introduce new aspects at this juncture. Adding new topics may complicate and lengthen discussions on transboundary aquifers unnecessarily. Once the Commission completes its work on aquifers, we can revisit whether consideration of additional aspects of shared natural resources is worthwhile.

With respect to the topic of the Responsibility of International Organizations, I would like to thank the Commission’s Special Rapporteur on the Responsibility of International Organizations, Professor Giorgio Gaja, for his valuable work and guidance on this difficult subject. On this topic we also note that our comments are preliminary, as we plan to continue our review and look forward to considering the views of other governments, including those presented at this meeting.

We continue to appreciate the desire to generate a common set of articles on the responsibility of international organizations, and the inherent challenges in doing so.

We remain concerned, however, with the underlying assumption that guides work in this area – that the draft articles on State Responsibility serve as the appropriate model for international organizations. Unlike states, which can be seen to share a fundamental set of qualities, there is great diversity in the structure, functions, and interests of international organizations. In addition, many of the interests and relationships of states that underpin the draft articles of State Responsibility – such as those related to sovereignty, citizenship, and territorial integrity – either do not exist or do not exist in a parallel form in international organizations. These differences make transposing the articles on State Responsibility to international organizations problematic.

We have previously indicated our view that the first 17 draft articles brought some of these problems to light, and we see similar problems in the work of the Commission on Articles 17 to 30. For example, we see problems in translating the principle of “necessity” to international organizations. The justification for “necessity” in the articles on State Responsibility is grounded in state interests – such as interests related to citizens or territory – that are not easily adaptable to international organizations. The draft article nevertheless suggests that necessity may apply to international organizations acting to safeguard “an essential interest that the organization has the function to protect.” This is a vague and potentially expansive standard, and it is not at this point clear to us that there exists any such principle that is applicable generally to international organizations.

As another example, we see principles involving resort to force in self-defense operating differently with respect to international organizations than they operate with respect to states. International organizations are in large measure creatures of the states that constitute them, and do not share the same interests in protecting nationals and national sovereignty as states. While they may have a legitimate need to defend themselves in certain situations, we do not see such a right as a principle of general relevance to all international organizations, and any such right would not appear to have the same scope as the right of states to protect their national territory and sovereignty.

We do recognize that this is a challenging topic and thank the Commission for its efforts so far. As the Commission continues its work, however, we would encourage it to focus particular attention on problems that arise in the existing practice of international organizations. Further consideration of these articles could benefit from practical examples that illustrate their application and their relevance.

Finally, while reserving our right to provide further comments in due course, we would like at this time to comment on one of the questions – in paragraph 28(a) of the Commission’s report – in which the Commission has indicated a particular interest in the views of governments. We do not believe that members of an international organization have a general obligation to provide compensation for internationally wrongful acts of that organization for which the state is not responsible. In this connection, we believe the Commission should be cautious about elaborating principles that might serve as a disincentive for states to participate in and contribute to the work of international organizations.

Thank you, Mr. Chairman.

October 30, 2006