Mr. Yukihiro Wada
Permanent Mission of Japan
On Item 152, "Report of the International Law Commission (Diplomatic Protection)"
29 October 2003
Overall Assessment on the Commission's Work to Date
At the outset, I would like to state that Japan is generally in support of the overall course of direction which the Commission is heading with regard to its work on the draft articles on responsibility of international organizations. Japan considers basically acceptable the three articles that were adopted at the 55th session of the ILC.
The current focus of the Commission to examine the existing organizations is a sound approach particularly to be taken at the early stage of its study. Japan supports the Commission's practical approach for a number of reasons. Firstly, a large number of members seemed to have supported an approach to categorize the existing international organizations so as to facilitate the Commission's work to define the scope of draft articles. As almost all members have expressed, international organizations vary in their sizes, objectives, memberships and other characteristics that determine their nature, it is meaningless to further the study without having a clear understanding of the organizations that are currently operating. It may be difficult to list literally all international organizations. As there does not exist an exhaustive list of that kind, such an effort to categorize existing organizations would certainly serve as a sound basis for the future work. Even though the Commission has already adopted Articles 1 and 2 on the definition of organizations, such a basic categorization would still help the Commission as well as States in discussing in future some specific aspects of responsibilities.
Secondly, it was a practical approach not to have included the issue of civil liability in the scope of responsibilities in the draft Article 2. As some members have pointed out, it may be true that in certain cases, the issue of civil liability of international organizations may arise depending on the nature of activities they conduct. It is also true that most activities of international organizations which result in inflicting damages to others may not be prohibited by international law; in this regard, there is a certain validity in giving more attention to the issue of liability (if not civil liability per se) rather than responsibility. Nonetheless, considering the approach which the Commission has taken in examining the issue of state responsibility and bearing in mind its valuable outcome on that subject, it may be wise to follow the precedence on state responsibility and try to find as much analogy as possible. The approach which the Special Rapporteur has taken in drafting the first three articles certainly is in accordance with such a way of thinking. The issue of liability can be always revisited when necessary. However, at this very early stage of study, it would be more prudent to start with a clearly defined scope so that the relevant articles from state responsibility can be utilized as much as possible.
With regard to the definition of international organizations, Japan views that the approach taken by the Special Rapporteur to be an appropriate one. By departing from the overly general definition of international organizations used in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations adopted in 1986, Special Rapporteur was able to make the definition more specific and useful. As many members of the Commission have pointed out, Article 2 of the Vienna Convention regarding the definition of international organizations was obviously too broad. It was a wise decision of the Special Rapporteur to depart from the definition used in the treaty. For example, the inclusion of States in the membership of an organization as a criteria, however evident that maybe, does give more clarity to the definition rather than using the generic term of "intergovernmental organizations." In addition, it is a logical consequence to have a requirement of legal personality when discussing the issue of responsibility.
On a related point, the discussion of the Commission seemed to have further improved the original draft proposed by the Special Rapporteur. In the original draft of Article 2, the Special Rapporteur introduced the concept of "certain governmental functions" to clarify the definition of international organizations. The concept of "governmental functions" is not certain despite the Special Rapporteur's effort to clarify in his report. (In paragraph 26 of his first report, the Special Rapporteur described "certain normative, executive or judicial functions" can be indicated by the term "governmental.") Since the objectives and specific activities of international organizations vary from one another, it may not be appropriate to use a term which requires much careful analysis. It was therefore a prudent decision of the Commission not to have included such a concept into Article 2 of the draft.
Specific Points Raised in Chapter III for Governments' Comments
It cannot be emphasized enough that "rules of the international organization" vary from one case to another, including various elements within. In this regard, the difficulty pointed out by the Special Rapporteur in making the analogy of internal laws of a State and rules of an international organization is worthy of taking note. In the Commentary on Article 3, the Special Rapporteur stated that rules of organizations cannot be categorically transposed to internal law of a State. Rules of an international organization would include issues such as internal decision making process, structure of the organization, as well as intra-relations among member states that composes its membership. Some of them undoubtedly dictate relations between states, thus becoming a part of international law. For example, the Charter of the United Nations is clearly a rule of the organization while at the same time is international law prescribing rights and obligations of member states. This shows that it would be too simplistic of an approach to draw a mere analogy of a state and an international organization, particularly the status of internal law of a state and rules of the organization. In this regard, the Special Rapporteur rightly pointed out such a complex nature of rules of international organizations. The decision not to use the relevant draft article on state responsibility as a model and not to replace the word "state" to "international organization" as well as the term "internal law" to "rules of the organization" is an appropriate one.
It is evident that an act of any organ of an international organization will be regarded as that organization's act. For example, an act of a Secretariat of a certain international organization would likely be seen as an act of that organization. With regard to an organ of an international organization, there does not seem to be much problem in assuming that in most cases an organ of the organization would be identified and defined by the rules of that organization. Therefore a certain reference on those "rules of the organization" would be useful as an element in considering a general rule on the attribution of conducts to international organizations.
In the meantime, it is obvious yet still important to note that "rules of the organization" vary from one case to another, thus requiring careful consideration in defining them in the draft articles. It is important to make sure that the definition of such rules can be generally applied to international organizations as there exist wide varieties of bodies. There has been a longstanding practice and wide acceptance among countries for the legal personality of such organizations as the United Nations, while others have been often questioned about their legal standing in international law, particularly when their legal personality is not clearly stipulated in their rules of organizations. It is needless to point out that the European Union, established for furthering regional integration, and the Asia Africa Legal Consultative Organization, a cooperative body for academic cooperation, have quite different "rules of organization" as well as its internal organs. It is therefore important to bear in mind that the definition of "rules of the organization" in the draft articles should be able to encompass the wide variety of rules of the existing international organizations.
When considering the definition of "rules of the organization" in the context of responsibility of international organizations, a useful starting point would be to examine relevant provisions of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations adopted in 1986, namely its Article 2 (1) (j). In so doing, however, it is important to carefully examine how valid the definition of the Vienna Convention can be in the current context. As pointed out before, it should be borne in mind that the definition of "rules of the organization" should have a broadest possible application to international organizations as they differ in their sizes, objectives as well as membership.