Responsibility of International Organizations

by Kristen Boon

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.

5 Responses

  1. As regards the issue of the different types of IOs, isn’t that question more pertinent in determining whether a particular IO has independent legal personality, rather than whether the responsibility regime should apply once it is said to have ILP? If an IO satisfies the criteria (albeit uncertain) of having ILP, are mere differences in the types of IOs sufficient to question a uniform standard? In the context of States too, independent recognized States vary greatly in terms of State control and internal governmental structures. But once they are recognized as independent States, and treated uniformly on issues of responsibility. So was wondering if there is a reason for having a non-uniform responsibility regime for IOs, or whether the concerns over different types of IOs is better addressed by codifying principles of ILP conclusively.

  2. I am not sure that I understand what it means to say that states are ‘unitary actors’, as opposed to IOs which are not. Aren’t states also complex bundles of competing interests and political wills which are often acted upon in contradictory terms by their organs? But I might be getting this the wrong way around, so I would be grateful if you could explain what you mean. Thank you!

  3. I agree with the previous comments and queries – isn’t it also the case with States that they are widely different one from the other, yet the basic principles of responsibility (should) apply equally to all of them? What have the Vatican and Russia in common? Indonesia and Andorra? As long as a IO is considered a subject of international law, basic principles on responsibility should flow automatically. And they should be essentially the same as those applicable to States, since they all share international subjectivity.

  4. Thanks for these comments.   To start with states, by unitary actor, I mean that regardless of the fact that states differ widely in terms of powers, size, population, power and so forth,  states possess general competence on the international plane.

    In contrast, IOs do not possess general competence.  The extent of an IO’s legal personality depends on its functions, as defined by its charter or constituent instruments.  So although IOs are typically presumed to possess legal personality if they engage in international acts (“the presumptive theory”), the extent of that legal personality can and will differ widely from IO to IO.    Similarly, the power of an IO to act independently of its members can differ greatly too – some IOs are supranational, others create mere consultative frameworks.  As a practical matter then, many IOs have challenged the view that a unitary set of rules on responsibility can be usefully developed and applied.   The EU has argued that it is sui generis because it is not only a forum for member states, but an actor in its own right with legislative and treaty making powers.  As such, its position has been that special rules may be required for a “regional economic integration organization.” The IMF’s comments to the ILC make the point that ” the fundamental question of attribution must, for each international organization, be determined with
    reference to the treaty that established the organization, the decisions of its governing bodies and the established practice of the organization. Therefore, in
    discussing questions of attribution, particular attention will need to be paid to the differences in the treaty-based laws and practices of the various international organizations.” Moreover, IOs constituted by treaty and incorporated under domestic law may require special treatment (see writings by Maurice Mendelson).   Although I agree that in most cases general rules can be developed regardless of  these differences in function (the commentary to the draft articles addresses this point at para. 14, p. 49), the lack of general practice with regards to responsibility of IOs has led to protests from IOs that fear these rules are developing in the abstract, and draw too heavily on principles of state responsibility which can start from the position of “general competence.”           

  5. Just to let you know… It could just be that my computer’s acting screwy, but the link to the ILC guide doesn’t appear to be working.

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