STATEMENT BY MR LIONEL YEE, DELEGATE TO THE 66TH SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 81, ON CHAPTERS I-III, IV & V OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 63RD SESSION, SIXTH COMMITTEE, 26 OCTOBER 2011

STATEMENT BY MR LIONEL YEE, DELEGATE TO THE 66TH SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 81, ON CHAPTERS I-III, IV & V OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 63RD SESSION, SIXTH COMMITTEE, 26 OCTOBER 2011 

Mr Chair

1. I would like to begin by associating my delegation with with the many other delegations who have expressed sadness at the passing of Judge Antonio Cassese and to pay tribute to his many achievements and contributions to public international law in general and international criminal law in particular over a long and distinguished career. Turning to the work of the International Law Commission, my delegation would like to thank the Commission for its comprehensive report on the work of its 63rd session (A/66/10).

2. In particular, we note the significant achievements of the Commission at the end of its 2007-2011 quinquennium. We record our appreciation to the Commission for the completion of three important topics on its agenda: namely, "Reservations to treaties", "Responsibility of international organizations" and "Effects of armed conflict on treaties". We anticipate a fruitful debate on these and other topics today, and in the coming days.

Mr Chair

3. My delegation is committed to supporting the Commission's work. The Commission plays a significant role in promoting the rule of law, by guiding and systematising its substantive content. In order to drive this enterprise, there must be a good dialogue between the Commission and member States, through this Committee.

4. We therefore appreciate the Commission's regular practice of actively engaging Member States during the course of its work. We welcome the Commission's invitation to Member States to comment on specific issues arising from topics on its agenda in Chapter III of the report. My delegation believes this practice should continue, and that the lists of issues should continue to be as focused as possible. We will endeavour to provide our written responses to the Commission through the Secretariat in due course. We will reserve any further comments on the Commission's relationship with this Committee for the debate on Chapter XIII.

Mr Chair

5. We turn briefly to Chapter IV of the report, on the topic "Reservations to treaties". We congratulate the Commission on completing the Guide to Practice, its commentaries, and the annex on the "reservations dialogue". In particular, we commend the efforts of the Special Rapporteur, Professor Alain Pellet, who worked with admirable determination on this difficult but critical area of international law for some 17 years.

6. My delegation welcomes the overall approach to reservations to treaties that the Guide to Practice seeks to encourage, and in particular the greater process transparency which it seeks to achieve. We share the Commission's view that "pragmatic dialogue" with the author of a reservation serves a useful purpose, and that all actors involved in the so-called "reservations dialogue" should articulate their reasons. However, my delegation urges caution in accepting the Commission's recommendation for a "reservations assistance mechanism", as described in the annex to that recommendation of 11 August 2011. It is, in our view, an overly simplistic "one size fits all" response to differences of views which might arise with respect to reservations in different treaties. With certain types of treaties, it may be more appropriate for such differences to be simply articulated through the reservations dialogue, and in such cases, the "reservations dialogue" may not be fully compatible with the idea that "differences of views concerning reservations" might be "settle[d]" one way or the other by such a mechanism.

7. My delegation understands that substantive discussions on this topic will be deferred to the sixty-seventh session of the General Assembly so as to allow delegations sufficient time to review the Guide to Practice with its commentaries. We will give due attention to the text when it becomes available, and look forward to participating in the debate on this topic at the appropriate time.

8. Next, we turn to Chapter V of the report, on the topic "Responsibility of international organizations".

Mr Chair

9. At the outset, my delegation congratulates the Commission on completing these 67 draft articles and their commentaries. We extend our thanks to the Special Rapporteur, Professor Giorgio Gaja, for his efforts in connection with this valuable text. This topic was last considered by the Sixth Committee in 2009. At the time, the Commission had just completed its first reading of its draft articles on the responsibility of international organizations. My delegation observed then that the topic was one of considerable relevance and significance.

10. We remain firmly convinced that this is so. We do not think it is an overstatement to describe our time as "the age of international organizations"-to borrow a phrase from a well-known scholar of such organizations. To relate the work of international organizations to the law of international responsibility and the broader question of accountability, an issue that encompasses both legal and political considerations, is a critical task of the Commission's. We note that the draft articles have been received with a high level of interest by the wider international law community, including international organizations. The text provides rich ground for comments. Reactions have been mixed, but the debate generated by these draft articles is an important one, which my delegation will participate actively in.

11. Today, in the interest of time, my delegation must confine our own comments this morning to three specific points.

12. First, my delegation welcomes the addition of an introductory general commentary. We think this improves the text by clarifying several key issues regarding the draft articles' scope of application. In particular, we think it is useful that the commentary clarifies: (a) that the draft articles do cover State responsibility in connection with States' acts within and in relation to international organizations (as well as the responsibility of international organizations themselves); (b) that several of the draft articles are "more in the nature of progressive development", and in that critical respect these draft articles are different in character from the 2001 articles on State responsibility; and (c) that the Commission's view is that the relevant draft articles have to be applied in the light of the "principle of speciality", which is a key conceptual element in the treatment of international organizations under international law.

13. Second, returning to the textual issues raised by my delegation in 2009, we note the changes made to article 17 (former article 16) and article 61 (former article 60), as well as their commentaries. In particular, we welcome the clarification of the term "circumvention" in paragraph (4) of the commentary to article 17, though we would have preferred the Commission to provide more specific guidance on the circumstances evidencing "circumvention".

14. Finally, these draft articles and their commentaries present an interesting choice for this Committee in terms of the question of form. We note the Commission's recommendation at paragraph 85 of its report. We are also aware that the Commission received several important reactions to these draft articles just before their second reading, including from international organizations and States.

15. My delegation would support treating these draft articles in the same way as the articles on state responsibility namely to present them as an annex rather than elaborate a convention. While many elements of this text present no issue for my delegation, we continue to have some difficulty with certain aspects of the draft articles that are-to recall the Commission's words-"more in the nature of progressive development". In this category, we include the draft articles relating to countermeasures and the derived responsibility of States, which are of doubtful practical significance.

16. In addition, my delegation notes a recent policy trend to establish international institutions under national private law, with sophisticated mixed membership structures. Some of these institutions are responsible for mandates and operations comparable to those of the traditional international organizations that are covered by these draft articles. It may be useful to revisit these draft articles at an appropriate time, in order to consider whether their substantive scope should be extended to cover these private law institutions.

17. In short, we think that the draft articles would benefit from a period of reflection and application, with careful attention to the Commission's commentaries and those aspects of the text that fall into the category of "progressive development".

Thank you, Mr Chair.