Responsibility of International Organizations II: Where is the internationally wrongful act?

The Draft Articles on the Responsibility of International Organizations (“RIO”) provide that for an internationally wrongful act to occur, (i) the conduct must be attributable to the IO under international law, and (ii) constitute a breach of an international obligation of that IO. Greg Fox will be blogging on the important question of attribution later this week. I would like to comment on the second issue of what constitutes a breach of an international obligation by an IO.

Like the articles on State responsibility, the RIO articles differentiate between primary and secondary rules in that they do not define the source obligations that create international responsibility. Instead, “primary” determinations are left to other bodies of law like treaties, custom, and, somewhat controversially, the rules of the organization. See draft Art. 2(b) & 9. The purpose of the draft articles is to develop the “secondary” rules, that is to say, the legal consequences of a failure to fulfill the primary rules.

As noted in my last blog, one persistent criticism of the draft RIO articles is that a material body of practice with regards to international organizations is lacking. Indeed, many States and IOs have noted that it is difficult to comment on the proposed articles because so many of the questions they raise are abstract. James Crawford’s lucid comment that “there is lots of customary law on State responsibility, and the action of international organizations is by definition linked to the actions or omissions of States” reminds us that State responsibility fills some of the gaps. Nonetheless, a serious question remains: what value do secondary rules have if there is little consensus on the primary rules of what constitutes an internationally wrongful act by an international organization?

Even the most vocal critics of the RIO draft articles concede that a valuable contribution of the current project is to prohibit states from creating or authorizing IOs to circumvent their own obligations under the law of State responsibility. In other words, states cannot “outsource” their responsibility to IOs. See e.g. the widely supported draft Arts. 16 & 60. In addition, the draft articles prohibit states from aiding or assisting, and coercing an IO in the commission of an internationally wrongful act. In this area, the ILC can draw on established practice in European courts, including the Bosphorus case, the Waite and Kennedy v. Germany case, and the Application of M. v. Germany case before the ECHR.

In my view, two other key benefits are apparent, and I’d be interested in readers’ reactions. First, increasingly international organizations, rather than states, are becoming the relevant international actor. Nonetheless, the proliferation of IOs on the international scene and the intensification of multilateral endeavors has not been met with corresponding accountability and responsibility mechanisms. The development of secondary rules on responsibility is not only an important step in addressing part of the accountability deficit; the RIO articles will also harmonize the practical development and application of new rules including primary rules on responsibility. The outcrop of new cases challenging international organizations directly and indirectly, (see e.g. the Kadi cases before the ECJ on Security Council Resolution 1267, and the much criticized admissibility decision by the ECHR in Behrami & Saramati) suggests that we are on an upward trend with regards to demands for redress against IOs, and that these secondary rules can and will encourage consistency amongst courts in their approach.

Second, as Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations notes in his important first report to the ILC, a number of the most controversial questions affecting IO responsibility were raised but left aside during the development of the draft articles for State responsibility.   The RIO articles take the State responsibility articles as their point of departure, but the interconnectedness between IOs and states mean that an important void still needs to be addressed.   Art. 63, which recognizes variations in IO regimes and responsibilities through its provision on Lex Specialis, provides that special rules will displace the general articles in appropriate situations. Although this provision may prove problematic if the exceptions swallow the rule, at present it recognizes the evolutionary process in play and accounts in part for the lack of practice to date.