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STATEMENT BY MR. HIROSHI TAJIMA
DELEGATION OF JAPAN
ON ITEM 80: REPORT OF THE INTERNATIONAL LAW COMMISSION
ON THE WORK OF ITS SIXTIETH SESSION

SIXTH COMMITTEE
TUESDAY, 25 OCTOBER 2005
UNITED NATIONS, NEW YORK

Mr. Chairman,

I would like to express my appreciation to Professor Djamchid Momtaz, the Chairman of the International Law Commission, for his comprehensive report yesterday on the work of the Commission over the past year on the first cluster of items.

In my statement, I would like to address the two items, namely the Responsibility of International Organizations and the Expulsion of Aliens.

RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS

Mr. Chairman,

Let me comment briefly on the topic of "Responsibility of International Organizations," the subject of Chapter VI of the Report.

At the outset, my delegation would like to express its gratitude to Professor Giorgio Gaja for his labors as Special Rapporteur on this topic. Given the diversity that exists with regard to the legal status, structure, activities, and membership of international organizations, it is difficult to lay down guiding principles that apply to every organization. Nevertheless, the Special Rapporteur's well-considered third report certainly facilitated consideration of this topic by the Commission this year. We would like to commend the Commission as well for the steady progress it has made in addressing this difficult subject, and we believe that the general direction that the Special Rapporteur and the Commission are taking is the right one.

Considering the progress made so far, we think it is only prudent to follow the basic structure of the draft articles on State Responsibility, modifying them when they do not apply to international organizations. Nevertheless, we must be mindful that these are two different subjects, and the draft articles on State Responsibility can serve only as a starting point in the consideration of this topic. In this connection, we would like to make some brief comments.

As has rightly been pointed out by some of the members of the Commission, an international organization is not only itself a subject of international law, its members are subjects as well, which means that, theoretically, an internationally wrongful act committed by a member State of an international organization may give rise to responsibility on the part of both the organization and the State. This is one of the differences between the responsibility of an international organization and that of a State. Nevertheless, the draft articles and commentary presented by the Special Rapporteur are somewhat ambiguous on this head, and we consider that further analysis is needed.

As an example, I would cite Article 15 of the draft, in which the Special Rapporteur proposes that an international organization shall be responsible for an internationally wrongful act of a member State if it adopts a decision binding member States to commit such an act, or it recommends or authorizes member States to do so. Nevertheless, as the article does not specify the responsibility of the member State or States which commit such an international wrongful act, clarification is needed.

There is a particular lack of clarity on points such as allocation of responsibility between international organizations and their member States. Further analysis is necessary, taking into account the content, nature and circumstances of the act committed by the member State, as well as the rules of the international organization. Furthermore, whether States owe the same responsibility under Article 15 paragraph 1 as under paragraph 2 is not clear from the draft. In the former instance, member States are obligated by the international organization to take such illegal action, whereas in the latter they are not, and they therefore have discretion to take alternative action. There is no reference to this distinction, or to its possible consequences. We would like the Special Rapporteur to provide us with further explanation on these points.

I hasten to add that we recognize work on this topic is still at an early stage, and more specific and detailed provisions may be forthcoming. Japan looks forward to revisiting the articles presented at this session at a later date, when we have a better picture of their overall structure.

EXPULSION OF ALIENS

Mr. Chairman,

Now, let me turn to the topic of "Expulsion of Aliens."

First of all, my delegation would like to commend Mr. Maurice Kamto and the Commission for initiating the discussion on this topic. Japan recognizes its importance and shares with the Special Rapporteur the view that it is particularly important in a contemporary world in which the transboundary movement of people has intensified as a result of globalization, although the phenomenon itself is not necessarily recent. Taking into account its seriousness, we believe it to be an appropriate topic to be considered by the Commission, which we hope will contribute to a solution by discussing its legal side. My delegation also welcomes the submission of the preliminary report by the Special Rapporteur.

The report provides us with a summary of the issue, and as has been pointed out, there are numerous elements that require study and discussion. Clearly, there is still much to be considered on matters such as the scope and definition of the problem, and what grounds there might legitimately be for expulsion. The rules to be applied to this subject are not limited to customary law. They are also closely related to the human rights regimes, and are interwoven with other fields of international law. We must therefore examine the topic carefully, taking into account its relationship to these relevant regimes. On the other hand, we must also note that the problem of expulsion of aliens is of concern to many countries. In order to make a meaningful contribution in this area, the Commission must be encouraged to complete its work in a timely manner.

For all these reasons, Japan would like to express the hope that further progress will be made on this topic at the next session of the Commission. For our part, we are prepared to offer substantive views and comments at the appropriate stage.

Thank you.

Related Information (United Nations)
Permanent Mission of Japan to the United Nations Official Web Site