09 Nov Responsibility of International Organizations
The 6th Committee of the GA recently finished its first reading of the 66 draft Articles on the Responsibility of International Organizations (“RIO”). The draft articles create rules on when international organizations can be held responsible for internationally wrongful acts under international law. In other words, when can international organizations (“IOs”) sue or be sued? The ICJ’s 1949 Reparation for Injuries case set the ball in motion, when it found that the United Nations has legal personality, and hence the right to bring a claim. Since then, the spectacular collapse of the International Tin Council in the 1980s, the dramatic expansion of multilateral activities by IOs generally, and the 2007 Behrami & Saramati cases before the ECHR have made IO responsibility a question of concrete importance.
The ILC’s efforts to develop draft articles on the Responsibility of International Organizations have been the subject of much critical commentary. See for example the 2006 speech by Jose Alvarez before the Canadian Council on International Law.
Although the draft articles on RIO are modeled on the state responsibility articles, it is nonetheless clear that IOs are more complicated. IOs are not unitary actors like states, instead they are created by states to perform a wide range of functions. Moreover, unlike the field of state responsibility where there was a great deal of practice to draw on, there is very little practice with regards to IOs. Responsibility requires a determination as to whether and in which circumstances the organization can be held responsible, and whose acts qualify as wrongful acts of the organization. Moreover, it presents sensitive questions about joint liability between states and IOs. The ILC’s helpful analytical guide containing the development of the RIO articles, and commentary by states and IOs can be found here.
Let me start today with a threshold matter. What is an international organization? Art. 2 of the draft articles defines “international organization” as “an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.” This definition is broad, in comparison with Art. 2 of the Vienna Convention of 1986 on the Law of Treaties between States and International Organizations, which defines an international organization simply as “an intergovernmental organization.”
Some IOs have near universal membership, others have only a regional focus. Some IOs have state members, others have members that are non-state entities. Some IOs have powerful members that exercise considerable clout on that IO’s decision making, others do not. Finally, some IOs, like the EU are granted broad reaching constitutional powers, other IOs, in accordance with their constitutive instruments, have a much narrower range of functions. Given the range of international organizations in existence, is it possible to create a regime that applies to all IOs? The ILC clearly thinks so, and recent debates indicate that states are coming around to this position, although many IOs may not be. Nonetheless, the wide variations in types of IOs will continue to be problematic in particular debates on attribution, counter measures, and what constitutes an agent or organ of the IO.
Greg Fox from Wayne State and I will post commentaries on key areas of the debate this week.