27 October 2009
Statement by H. E. Mr. Hossein Panahi Azar
Director-General of International Legal Affairs
of the Ministry of Foreign Affairs of the Islamic Republic of Iran
Before the Sixth Committee
on Agenda item 81: Report of the International Law Commission
on the Work of it Sixty-First Session (Part One)
Chap. I-III (Introd. Parts), IV (Responsibility of International Organizations) & XIII (Other decisions)
(New York, 27 October 2009)
In the Name of God, the Compassionate, the Merciful
My delegation would like to begin by congratulating the members of the International Law Commission for their accomplishments during the Sixty-first Session of the Commission. Our appreciation also goes to Mr. Ernest Petric, the Chairman of the International Law Commission, for his diligent leadership of the Commission in its Sixty-first session and for his presentation of the report yesterday morning. My statement today would be on Chapter IV. Responsibility of international organizations but before embarking on this topic let me join the Commission in expressing our gratitude to Ms. Mahnoush H. Arsanjani, who retired as Secretary to the Commission in March 2009, for her important contribution to the work of the Commission for years.
The delegation of the Islamic Republic of Iran commends the Commission for successful conclusion of the first reading of the 66 draft articles on the “Responsibility of international organizations” with the commentary, and expresses its appreciation to Mr. Giorgio Gaja, Special Rapporteur, for his important contribution to this end. We take note of the Commission’s decision on 3 August 2009, to transmit the draft articles to Governments and international organizations for comments and observations. My delegation would like to make some preliminary comments with respect to the draft articles.
Generally speaking, an international organization, as a subject of international law which is created by the will of its member States, is obliged to comply with the same international normative rules that States are bound to. They are strictly bound to the provisions of their constitutive instrument, as well. Therefore, international organizations shall observe all international norms, in particular the principles and peremptory norms of international law, as well as their founding document and internal rules, while making any decision or taking any action. Any measure adopted by an international organization in contradiction to such norms, principles and rules would be ultra vires, i.e, “beyond powers” and, thus, legally void and without binding effect. And under such circumstances the issue of responsibility of international organizations arises.
Moreover, where an organization is unable or unwilling to honor its obligations arising from a peremptory norm of international law (jus cogens) due to organizational impediments or any other reasons, the States member should take all necessary measures to enable the Organization to discharge its responsibilities.
It is understood that the Commission has replicated, to a large extent, the general pattern of the articles on the “Responsibility of States for internationally wrongful acts” in drafting the articles on the “Responsibility of international organizations”. It goes without saying, however, that in doing so the distinctive nature and function of the international organizations should be duly taken into account. The different nature, function and status of State as compared to those of international organizations render a word-for-word transposition of the provisions of the corresponding articles on “State responsibility” unfit, except for where there is a reasoned ground, based on a clear similarity between the two, to support such replication. Hence, Chapter V of Part two, dealing with the circumstances precluding wrongfulness, for instance, should be examined in light of distinct character of international organizations and be redrafted accordingly. In other words, the provisions of the relevant draft articles on circumstances precluding wrongfulness of a State’s act could not be extended to international organizations.
In this context, we believe that the reference to the self-defense and its respective draft article 20 is misleading and should be deleted, since the concept of self-defense articulated in article 51 of the Charter of the United Nations is, by its nature, applicable only to the State and does not relate to international organizations. After all, the question arises as to how an international organization could be the victim of an “armed attack” as the essential requirement for self-defense under international law. In the same vein, we believe the issue of countermeasures by or against international organizations needs to be examined with extreme caution; a countermeasure is principally an act of State against another State, and as such it could be very hard to be taken by an international organization.
Likewise, we don’t deem it tenable to replicate all corresponding draft articles on “State responsibility” in Part Six (General Provisions). For example, the Commission has drafted a “without prejudice clause” in article 66 with respect to the Charter of the United Nations. To us, there is no such hierarchical order among international organizations. Moreover, the unique status of the United Nations has been reinforced by other articles and commentaries thereto, in particular, the proposed draft article 63 on Lex specialis. We also understand draft article 65 as including both civil and criminal responsibility of any person acting on behalf of an international organization or a State. The exact reference to both is recommended.
The issue of Responsibility of a State member of an international organization for the internationally wrongful act of that organization, as reflected in draft article 61 is of high importance. We believe that a distinction should be made between cases where an international organization authorizes its member States to adopt a particular measure and those where it orders them to take certain action, including coercive measures. If an organization authorizes a member State to undertake an action, it confers a right on that member State. In such cases, the member State has a right, but not an obligation, to take action; such action should, therefore, be considered their own conduct rather than that of the organization.
We support the idea of full reparation by the responsible international organization for the damages occurred as a consequence of its internationally wrongful act, as provided in Chapter II of the draft articles, particularly draft article 35. In this respect, lack of sufficient funds can not be invoked to absolve a responsible international organization of its obligation under international law to compensate for the damage it caused by an internationally wrongful act. The member States of the organization should provide it with necessary assistance in accordance with its internal rules, to enable it to pay the compensation. Draft article 39 has adequately addressed this issue. In cases where an organization has the responsibility to pay compensation for the injurious consequences of its act or omission, the brunt of responsibility should be borne by those member States which, owing to their decisive role in decision-making or due to their position in the overall structure of the organization, has contributed to the injurious act. Therefore, it would be advisable for the Commission to consider, under draft article 43 and the new proposed provision, the issue of unlawful or ultra vires measures adopted by an organization, or its organs, under undue influence or pressure of a few member States.
We also support the approach taken in draft article 46 whereby all States or international organizations injured as a consequence of a single wrongful act would be entitled to invoke responsibility independently from each other. It would be advisable to determine which injured parties have priority in taking legal action against the responsible organization in cases where several entities are injured by a single internationally wrongful act of an international organization.
My delegation notes the decision by the Commission to discuss the topic “Settlement of disputes clauses”. Any discussion on this issue should duly take into account the relevant principles of international law, particularly the sovereign equality of States and their unambiguous consent to peaceful settlement of disputes mechanisms.
I thank you, Mr. Chairman.