The Responsibility of Member-States Due to Wrongful Acts of International Organizations: A Response to Cortes Martin

Abstract

1. Owing to the kind invitation by Chinese Journal of International Law, I am delighted to offer few thoughts and comments on the insightful and well-argued contribution by Jose Manuel Cortes Martin published in an earlier issue of this Journal.1 The topic at hand is relevant to multiple activities of international organisations, not only in terms of allocating responsibility and reparation to the entities properly, but also because the forum for impleading some entities involved in the relevant wrongful act may not always be available. The 1995 Institute of International Law Resolution2 and the ILC's 2011 Draft Articles on the Responsibility of International Organisations (Article 62) have suggested that member-States are not liable for the acts of organisations.3 2. Policy reasons for or against holding a particular entity responsible for a wrongful act are bound to be diverse and mutually conflicting. What the analysis requires is to identify the sources of international law that formulate responsibility rules in relation to the particular entity. In order for a customary rule to exist to that effect, State practice underlying it must be durable, uniform and consistent. Cortes Martin correctly shows that judicial practice regarding the responsibility of member-States for the acts of organisations, which includes the International Tin Council litigation before English courts, is mixed and inconclusive.4 Cortes Martin then interestingly discusses treaty provisions regarding the responsibility of various organisations and their members for particular activities, and shows that the position is not uniform here either. Some treaties admit the members' responsibility and others do not.5