Responsibility Of International Organizations Research Articles

Introduction - Ruptures in International Law

The papers gathered under this special issue draw on presentations from the International Legal Theory Workshop under the auspices of the 4th Conference of the European Society of International Law, which was held at Cambridge University in September 2010. The essays cover some key developments in international law since the fall of the Berlin Wall. In the pages that follow, you will find an examination of the rise of the notion of ‘harmonious society’ in China as well as an insightful analysis of how this concept can influence international law; a detailed study of the regime of responsibility of international organizations that has gained momentum in the wake of the proliferation of international organization since 1989; a proposal for a fiduciary theory of international human rights, conceived as an alternative model to post-9/11, interest-balancing approaches in the field of national security law; and a reflection on the endurance of the notion of rogue states and state-criminalizing approaches to international relations, beyond the confines of the Bush doctrine. These essays are started off by two papers that address, from different angles, the current state of theorizing of international law.

The Work of the International Law Commission, 2007–2011: Progress and Prospects

On November 17, 2011, the UN General Assembly elected the members of the International Law Commission for the next five years. In the course of the quinquennium that was completed in August 2011 with the end of the sixty-third session, the Commission concluded four major topics on its agenda: the law of transboundary aquifers, the responsibility of international organizations, the effect of armed conflicts on treaties, and reservations to treaties. It was by any standard a substantial output. The beginning of a new quinquennium now provides an opportunity to assess what the Commission has achieved, to consider the way it operates, and to reflect on what lies ahead for it.

Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: An Inquiry into the Application of the ‘Effective Control’ Standard after Behrami

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.

Responsibility of International Organizations – Introducing the ILC’s DARIO

The responsibility of international organizations is a field of international law which has gained importance in theory and practice especially within the last decades. As of 2002, also the International Law Commission started attending to the topic. It concluded its work in August 2011 by adopting on second reading a set of 67 Draft Articles on Responsibility of International Organizations (DARIO). The purpose of this contribution is to give an introduction and assessment of the content and potential of these articles and to evaluate the critique that has been raised so far. The DARIO are modelled after the Commission’s previous and very successful work, the Articles on State Responsibility (ASR). Thus, the question can be posed whether the DARIO are likely to follow in the footsteps of its older sibling, the ASR, to become similarly successful.

The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility

It is against the backdrop of the conceptual impairment inherited from the Articles on State Responsibility (hereafter ASR) that this note, rather than zeroing in on what could have been better devised at the micro-level of the Articles on the Responsibility of International Organizations (hereafter ARIO), adopts a holistic view on the approaches to the law of international responsibility. In so doing, the ARIO are not approached in isolation but together with the ASR. This paper argues that, envisaged together with the ASR, the ARIO magnify the structural straits of the law of international responsibility. It more particularly argues that the ARIO reveal that the minor and almost invisible defects at the level of the ASR have enlarged on the occasion of their transposition to the responsibility of international organizations, unveiling the conceptual fissures of the whole law of international responsibility (Section 1). It then formulates a few epistemological considerations on how a normative instrument that so openly lays bare the limits of the current law of international responsibility could nonetheless be usefully received by our professional community (Section 2).

ARIO and Human Rights Protection: Leaving the Individual in the Cold

International organizations may be regarded as international public authorities, since their acts increasingly impinge on individuals, private associations, enterprises, States, or public institutions. However, this development has not been followed by the creation of a corresponding system of international legal responsibility for international organizations. Some are even seen as a risk to fundamental rights. The Articles on Responsibility of International Organizations (ARIO) bring some progress in this regard, but nevertheless leave the victims of human rights violations largely overlooked. The article analyses some of the achievements and gaps of ARIO with respect to human rights protection and explores the possibilities for victims of human rights violations to seek remedies against international organizations.

Responsibility of International Organizations ‘in connection with acts of States’

This article offers some reflections on the way in which the ILC Articles on the Responsibility of International Organizations (ARIO) have addressed the responsibility of international organizations for conduct of member States implementing their normative acts. The ILC has chosen to deal with this issue through the concept of responsibility ‘in connection with’ acts of States, which it had already included in its Articles on State Responsibility (ASR), and more in particular through article 17 on ‘circumvention’. Focusing primarily on this provision, we argue that the attempt to address this particular type of responsibility forced the ILC to relax the conceptual straightjackets it had opted for in the ASR, thereby exposing certain ambiguities in the foundations of the law of international responsibility.

Human rights violation: Responsibility of international organizations or of their member states

Although international organizations as subjects of international law are obliged to respect fundamental human rights in their acting, a very small number of them are contracting parties to international instruments for human rights protection, unlike their member states, which are contracting parties to many of them. As international organizations take more and more activities that can and often result in violation of human rights there is an obvious problem to what forum victims of those violations can turn to for determining responsibility of the international organization. The European Court of Human Rights and the European Court of Justice have developed through their practices modalities for indirect control of acts of international organizations by controlling the acts of their member states, which result from their duties as members of those organizations. The paper assumes that such control is efficient and that it fills the void in the international system of determining responsibility for violation of human rights through acts of international organizations according to which, the states basically keep on being responsible for violation of human rights.

Comments on the ILC’s Draft Articles on the Responsibility of International Organizations

Comments on the ILC’s Draft Articles on the Responsibility of International Organizations

THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO THE RESPONSIBILITY OF MEMBER STATES IN CONNECTION WITH ACTS OF INTERNATIONAL ORGANIZATIONS

It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.4

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

Ultra vires acts and the responsibility of international organizations - selected issues

Ultra vires acts and the responsibility of international organizations - selected issues

The Rules of International Organizations and the Law of International Responsibility

AbstractThis paper discusses the role of the so-called 'rules of the organization' in the draft Articles on the Responsibility of International Organizations (ARIO), as adopted by the International Law Commission (ILC) on second reading in 2011. Although the rules of the organization occupy a central place in the ARIO, the ILC has decided not to take a “clear-cut view” on their legal nature as either international law or internal law of the organization. This paper argues that the ILC's indecision has left the ARIO with a fluctuating scope of application concerning various provisions such as the attribution of conduct, the breach of an international obligation, the obligation to make reparation, and countermeasures against an international organization. The term of art 'rules of the organization' was developed by the ILC in its work on the law of treaties but has rarely been addressed in legal scholarship. Part 1 therefore first examines the legal nature of the different components of the so-called 'rules of the organization': the constituent instruments, the acts, and the established practice of the organization. While the constituent instruments are contracts between States at the moment of the creation of an international organization, it will be contended that they also operate as constitutions during the life of the organization, giving it the autonomy to create internal law in force between the subjects of its legal order, including its member States. In analysing the ARIO on second reading, Part 2 accordingly suggests reconceiving the rules of the organization as 'internal law' of the organization as long as it functions effectively, so as to appropriately reflect its constitutional autonomy for purposes of international responsibility.

Pojam međunarodne organizacije iz nacrta članova o odgovornosti država komisije UN za međunarodno pravo

It is a commonplace to state that there is no universally accepted definition of international organizations (IOs). Until recently, the International Law Commission (ILC) used to identify IOs simply as intergovernmental However, in its new project - drafting the rules on international responsibility of international organizations - ILC has provided a longer and more precise definition of IOs. For the purpose of the Draft Articles on Responsibility of International Organizations (DARIO), an entity will be considered as an IO if (1) it is established by a treaty or other instrument governed by international law, (2) it is possessing its own international legal personality; and (3) its members, in addition to States, are other entities (Art. 2(a)). This article analysizes this definition in order to assess its conformity with the practice and doctrine of international law. Moreover, this article tries to determine whether the ILC's definition is appropriate for the purpose of formulating the rules on international responsibility of international organizations. Firstly, the article concludes that the definition of IOs from Art. 2(a) of DARIO is both broad and narrow. Its first and second elements, i.e. the source establishing an IO and IO's possession of international legal personality, make the ILC definition broad. Obviously, the intention of the ILC was to include as many international entities which possess characteristics of IOs within the scope of its rules of responsibility. On the other hand, the definition is narrow since its third element - the requirement that its membership must include States - excludes from the scope of the DARIO those organizations which only have other international organizations as members. Secondly, the article points out that one element of ILC's definition, possession of own international legal personality, is at odds with the practice and doctrine of international law. Namely, the practice and doctrine clearly show that the legal personality of international organizations is above all contextual. However, the position of the ILC implies that all international organizations by the very fact of their existence possess international legal personality. This is due to ILC's attempt to put all international organizations into UN's shoes. Moreover, this implies that international legal personality of all IOs must be considered as objective - meaning that it does not require recognition of non-member states. This is also at odds with practice and doctrine of international law. Those accepting the idea of contextual legal person hood of IOs, advocate against the ILC's attempt to provide general rules of responsibility for IOs grounded on their person hood. However, this issue can also be viewed from another angle. Not only an IO can be responsible for violation only of those international obligation that it actually has, but the existence and scope of its legal personality should be assessed on the basis of its existing rights and duties. Therefore, the article concludes that, despite above mentioned shortcomings, the definition of IO given by the ILC seems to be an appropriate one for the application of the rules on responsibility of IO.

A Constitutional Moment?: United Nations Peacekeeping in the Democratic Republic of Congo

AbstractThe United Nations (UN) is the world's most prominent international organization, and a key issue is its responsibility under international law. The contemporary growth in UN powers and activities has not been matched by parallel developments in accountability and checks and balances within the UN legal order. This was recently brought to the fore in the instance of UN peacekeepers providing support to Congolese army forces responsible for serious violations of international humanitarian and human rights law. It became a significant public issue and the Secretary-General eventually withdrew UN support from a unit of the Congolese army. This article demonstrates that this withdrawal of support by the Secretary-General represents a constitutional moment for the United Nations. It confirmed a key premise that the Secretary-General is normatively constrained under the Charter, including by the Organization's obligations, when implementing the decisions of the Security Council. This is a legal development which engages a number of emerging and uncertain areas of international law relating to the United Nations, including the UN's constitutional law, the responsibility of international organizations, the substantive obligations of the Organization, and the role of international law in peace and security. Recognizing this important development not only confirms the Secretary-General's legal responsibility under the Charter, it reinforces the view of the Charter as a living instrument and provides an effective and important means for incorporating the law of responsibility into the UN constitutional order and a check upon the expansive application of the Security Council's implied powers doctrine.

International Organizations’ Comments on the Draft Articles on the Responsibility of International Organizations

International Organizations’ Comments on the Draft Articles on the Responsibility of International Organizations

The ILC Draft Articles on Responsibility of International Organizations: The Interplay Between the Practice and the Rule

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La responsabilidad de los Estados miembros de una organización internacional por el hecho ilícito de la misma

La Comisión de Derecho Internacional culminó en su 61o. periodo de sesiones (2009) la aprobación en primera lectura del proyecto de artículos sobre la responsabilidad de las organizaciones internacionales. El presente artículo analiza una de las cuestiones más relevantes de dicho proyecto, como es la responsabilidad de los Estados miembros, con base en su condición de miembros, por el hecho ilícito de la organización a la que pertenecen.

Chinese Practice in Public International Law: 2009

Chinese Practice in Public International Law: 2009

Amsterdam Center for International Law Introduction to the symposium on Responsibility of International Organizations and of (Member) states: Attributed or Direct Responsibility or Both?

AbstractThis is the introduction to three articles that resulted from the Symposium on Responsibility of International Organizations and of (Member) States organized by the Amsterdam Center for International Law (ACIL) under direction of Professors André Nollkaemper and Pieter Jan Kuijper in April 2009. The Symposium concentrated on those articles of the ILC draft articles on the Responsibility of International Organizations which are concerned with the responsibility of States for the unlawful acts of International Organizations as well as with the responsibility of International Organizations for unlawful acts of States, and in particular Member States. This introductory article seeks to place the articles relating to these issues in the context of the draft articles as a whole and of their predecessors, the draft articles on State Responsibility. Moreover, since the articles in question are based on the notion of a directly incurred responsibility on the part of the international organization or State concerned, rather than the classical conception of responsibility through attribution, they are also analyzed in the light of these two conceptions of responsibility. The issue of shared responsibility deserves special attention in this respect.