Remarks on Agenda Item 81: Report of the International Law Commission on the Work of its 61st Session Chapters I-III Introduction and Request for Submissions, Responsibility of International Organizations (Chapter IV); Other Decisions (Chapter XIII)

Todd Buchwald
Assistant Legal Adviser , U.S. Department of State 
New York, NY
October 27, 2009


Thank you, Mr. Chairman.  My government appreciates your efforts in guiding the work of this Committee and welcomes the opportunity to submit a few observations on topics considered by the International Law Commission at its 61st Session.

The United States recognizes that universal respect for international law is essential to orderly and peaceful relations among States and commends the International Law Commission on its contributions to the progressive development and codification of international law.  We would like to convey our congratulations to the Chairman of the Commission, Mr. Ernest Petric and the other officers elected at the beginning of the Commission’s 61st Session and in particular to thank Mr. Petric for his excellent and informative presentation in introducing the report yesterday morning. We would also like to congratulate Mr. Shinya Murase on his election to the Commission and to pay special  tribute to Mr. Chusei Yamada for his service on the Commission.  We also wish to thank the Special Rapporteurs and all the members of the Commission for the topics discussed at the Commission’s past session for the manner in which they have diligently guided the Commission on important – and complex – topics.

We believe the work of the Commission benefits from the views provided by States and international organizations.  We are pleased that the Commission has requested views from governments on several topics including (1) those on the topic of responsibility of international organizations, (2) issues relating to the expulsion of aliens topic, and (3) views on the topic of oil and gas treaties and arrangements.  The United States has previously provided views on each of these topics, and we welcome the opportunity to update and supplement those views. 

With respect to the topic Responsibility of International Organizations, the United States appreciates the Commission’s work, and Professor Gaja’s efforts in particular, in generating a common set of articles on the responsibility of international organizations.  We remain concerned, however, about the approach that the Commission has taken in this area.  Relying too heavily on the articles on State Responsibility risks eliding the differences between states and international organizations, not to mention the wide differences among international organizations.  The draft articles include provisions that apply to only a small fraction of all international organizations. For example, as the commentary notes, draft article 20, concerning self defense, is likely to be relevant to the acts only of those international organizations that administer a territory or deploy an armed force.  We question the utility of including an article of such limited applicability.   The draft articles also include provisions that will rarely, if ever, come into play for the vast majority of international organizations. For example, we question the need for draft article 23, concerning distress. 

We welcome the principle that appears to underlie draft article 63, which limits the application of the draft articles in areas that are governed by special rules of international law including the rules of particular international organizations.  This principle is an important step in addressing the differences among international organizations.  We remain uncertain, however, that it will alleviate our concerns regarding the Commission’s basic approach, and intend to review carefully this new article, its consequences for the other draft articles, as well as the other new and revised draft articles.  We welcome the Commission’s invitation to provide more detailed comments and observations by January 1, 2011.  

Thank you, Mr. Chairman.


PRN: 2009/245