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30 October 2008 - Status Report of the International Law Commission - Speech delivered by Mrs Edwige Belliard

63th session of the United Nations General Assembly, Sixth Committee

Status Report of the International Law Commission on the work of its Sixtieth session, Chap. VII Responsibility of international organizations (item 75)

Speech delivered by Mrs Edwige Belliard, Director of Legal Affairs, Ministry of Foreign and European Affairs

Mr. President,

France has been keenly following the Commission’s current work on the responsibility of international organizations, carried out under the supervision of its Special Rapporteur, Professor Gaja. The draft articles provisionally adopted by the Commission this year on the invocation of responsibility of an international organization do not require us to make lengthy comments. As regards these questions, the articles on international responsibility of the State undoubtedly serve as a useful guide, whether on notification of the claim or the loss of the right to invoke responsibility. In this respect, the draft articles provisionally adopted the by ILC are not major areas of concern. As regards draft article 48 on "Admissibility of claims", and in particular paragraph 2 of said article, my delegation does not see any objection to recalling, at the risk of lapsing into tautology, that when the so-called rule of "exhaustion of local remedies" is applicable, "any available and effective remedy provided by that organization" must be exhausted before invoking the responsibility of the organization. In this respect, I have noted that this question could have points of contact with the issue, which has not been addressed in the draft on diplomatic protection, about the very definition of "local remedies", in particular when individuals can have local remedies against a State before jurisdictions which are not national.

Mr. President, please allow me to now address the question of countermeasures, which played a predominant role in the Commission’s debates at the sixtieth session.

France does not consider that the countermeasures theme really fits into the so-called "secondary" rules on the responsibility of international organizations. Such measures are more aptly classed under the fulfilment of international obligations and must be closely linked to the rules relating to the peaceful settlement of international disputes. In addition, with specific respect to international organizations, and as regards countermeasures that could be used against them, it appears that practice is exceptionally limited, which should encourage the utmost caution in view of abuse that could prompt any form of institutionalisation. My delegation’s doubts regarding these general questions have been compounded by the shifting of debates, which are in principle limited to the responsibility of international organizations, towards questions which sometimes concern countermeasures that these organizations could use against States, which raises the question of possible distinctions to be made in this area, or even - and I will get back to this in a minute - as to countermeasures that could be taken within a single organization.

The ILC’s approach leads us to believe that the Commission, in a single and distinct study of the respective drafts regarding the responsibility of States and international organizations, as such, could have, as we argued in the past, covered the topic of countermeasures.

Regardless of these policy considerations, we believe that reviewing countermeasures in the context of the responsibility of international organizations requires paying particular attention to the legal relation between States and the international organizations in which they are participating, as well as to the functions and rules under which their activities operate. In this regard, the question of countermeasures to be taken by an international organization against one of its members, or by the Member State against the organization, is not the same thing in our opinion, and should not be treated as such. In both cases, however, the existence of specific rules for the organization calls into question the limits, either radical or only partial, relating to the use of countermeasures within the framework of an international organization.

Therefore, in our opinion, measures regarding one of the members of an international organization which are adopted by that organization while performing its functions should never be described as "countermeasures", which is how they may have been sometimes described during the Commission debates. In addition, careful consideration should be given to the question of allowing the Member State of an international organization to take countermeasures against that organization. In fact, I must admit to holding reservations as regards the relevance of considering such an option, especially given the lack of any truly significant practice.

In any case, just as the Drafting Committee did in a specific draft article (draft article 55 [52 bis]), I believe it is preferable to distinguish between this question and the more general one of "the object and limits of countermeasures" taken against an international organization, which is dealt with in draft article 54 [52]. I do not believe, however, that this draft article 55 [52 bis] eliminates all areas of uncertainty. This draft would at the very least require clarification on what is covered by the expression "reasonable means [which] exist in accordance with the rules of the organization" and which block the adoption of countermeasures against the organization. In its current form, this draft article intimates that in the suggested scenario, the countermeasures should be regarded as a measure of last resort, which I believe complies with the uniqueness which should be characteristic of all countermeasures. I have not, of course, lost sight of the fact that for the purposes of the draft article, the rules of the organization are understood in a sufficiently broad manner so as not to be reduced to the only rules formally set out in the constitutional texts. However, since the rules of the organization inevitably constitute a lex specialis, I wonder about the actual benefit of draft article 55 [52 bis] which, in a codification text, can ultimately be nothing other than an inappropriate sanctioning of a largely textbook scenario.

Finally, I wonder about the structure of the condition proposed in paragraph 4 of draft article 54 [52], which aims to limit as much as possible the effects of countermeasures "with regard to the international organization performing its functions", and which in principle would seem desirable, with the general limits following on from the terms of reference for the countermeasures and the requirement of proportionality referred to in draft article 57 [54]. I have no doubts, however, that the commentary can provide useful input on this point.

Mr. President, thank you very much./.

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