Mr. Arif Havas Oegroseno
Director General of Law and International Treaties
Department of Foreign Affairs
Agenda item 81:
“Report of the International Law Commission”
(Responsibility of International Organizations)
New York, 27 October 2009
First of all I should like to appreciate the work of the International Law Commission in providing the Sixth Committee with a comprehensive report as contained in document A/64/10 as this exemplifies the United Nations General Assembly Resolution 63/123 which, among others, recalls that the interaction between the Sixth Committee and the Commission should be further enhanced. Furthermore, the practice of informal consultations in the form of focused discussions between the members of the Sixth Committee and the members of the Commission attending the sessions of the General Assembly should be maintained as a dialogue forum on the agenda items of the Commission.
I wish to congratulate the Commission on the completion of the first reading of the draft articles with their commentaries on the topic of Responsibility of International Organizations which were concluded from the work of Special Rapporteur Prof. Giorgio Gaia. The work of the Commission in this area is of great importance for the international community at the global as well as regional level as it will provide a clear reference to the decision making process of a State in joining a particular international organization and also in executing the decision of that particular organization in which that State is a member of. Indonesia should like to put on the record that it will submit its written comments to the Commission in due course.
Let me turn to some specific matters brought to our attention by the Commission as contained in the Chapter III of its Report.
The first matter is the question on when the conduct of an organ of an international organization, placed at the disposal of a State, is attributable to the latter. As I understand within the practice of international organizations, there is a certain degree of relinquishing State sovereignty to an international organization in which that State is member to such as the significant reduction of immigration powers. Thus, the matter of effective control on certain matters rests within the purview of that organization, and not that of member States which may have already delegated some of its powers and abilities to act to the organization itself. Clearly, the conduct of the organ is attributable to that particular organization. However, if it can be proven that the conduct of an organ of an international organization is directed or controlled by a particular member State then it is clear that the attribution falls within that State. The Commission needs to conduct further study on examples and practices on this particular situation.
The second question is as follows: when is consent given by an international organization to the Commission of a given act by a State a circumstance precluding wrongfulness of that State’s consent? Consent of international organizations to a member State or another third party State to perform certain acts is normally provided through the decision-making process of member states of that international organization. This means that the consent provided by international organizations is limited in the first place and is normally constrained by the statute of that organization and that this consent is derived from the collective consent of member states. Furthermore the State that is given the consent to perform specific acts is also constrained within the conditionality and limits of that consent. The question is what will be the attribution for that State carrying the consent if in performing specific acts that particular State goes beyond the mandate. The question of excessive measures beyond consent needs to be addressed further. It is also important to address whether in the carrying out of specific acts, the member State is conducting it in lawful manner in accordance with the rule of international law.
The third matter is the question of when an international organization is entitled to invoke the responsibility of a State. Under the practice of international organizations, there are great diversity of the objectives and purposes of international organizations under their statute of establishment. Many of them are international organizations which specialize its works in the compliance of certain agreements, thus in other words the main function of these organizations are to invoke the responsibility of its member states. Often such invocation of responsibilities is accompanied by sanctions which are directed against the member states from a quasi-judicial panel.
In other circumstances, the international organization in question does have the right to invoke responsibility of the State with respect to its responsibility to respect its obligation towards the international community, provided that the safeguarding of the interests of the international community underlying the obligation breached is included among the functions of the international organization as set out in draft article 48.3.
Finally, Mr. Chairman, I should like to reiterate our appreciation to the work of the Commission on this matter.
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