Responsibility of International Organizations – The Problem of Attribution

I’d like to thank the folks at Opinio Juris for inviting me to reflect on the emerging body of rules addressing the responsibility of international organizations. My post will address the question of attribution and will continue Kristen Boone’s prior discussion of particularly controversial aspects of IO responsibility.

The question of whether internationally wrongful acts are attributable to an international organization is central to the International Law Commission’s (ILC) Project on the Responsibility of International Organizations (IOs). In fact, one might say attribution is the defining issue. On the one hand, many believe IOs act only when their member states cause them to act. From such a Realist perspective IOs have virtually no autonomous agency. Can we really say, for example that “the United Nations” failed to prevent the 1994 genocide in Rwanda when the United States and Belgium – the two states with the most influence over the peacekeeping force then in the country – were adamant against intervention? Or that the World Bank was primarily responsible for the lending conditionalities favored by the Washington Consensus? Was not Washington itself actually responsible? On the other hand, states create IOs precisely in order to shift responsibility for actions they are unable or unwilling to take on themselves. On this view, to pierce the IOs’ veil regularly might well cause states to cut back on or even cease their support for the organizations. Whichever one of these viewpoints one accepts, the question of attribution drives the claim.

Perhaps the most immediate reason attribution has become a hot topic is that it lies at the heart of the European Court of Human Rights’ controversial decision in the Behrami and Saramati cases. There, the ECHR found that acts by UNMIK and KFOR troops in Kosovo were attributable to the United Nations and not the troop contributing states. The criticism of the ECHR’s decision has been so vehement (Marko Milanovic and Tatjana Papic entitle their scathing article “As Bad as it Gets”), that when the ILC added commentary to its draft articles this past summer it made clear the ECHR had misapplied its principles and included a long footnote citing to the critical literature (including the Milavoic and Papic piece (p. 67 n. 102)). Since the ECHR will continue to hear cases involving UN peace operations, the ILC clearly hoped this negative feedback loop will cause the Court to revisit its misguided approach to attribution. But if it does not, one of the major regional courts will have diverged from an approach the ILC believes is well-grounded in customary law.

The ILC addresses attribution in Chapter II of its draft articles. Articles 5-7 are the crucial ones:

Article 5
General rule on attribution of conduct to an international organization

1. The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.
2. Rules of the organization shall apply to the determination of the functions of its organs and agents.

Article 6
Conduct of organs or agents placed at the disposal of an international organization by a State or another international organization

The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.

Article 7
Excess of authority or contravention of instructions

The conduct of an organ or an agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of that organ or agent or contravenes instructions.

These articles raise several interesting questions. The first is how far they diverge from the troublesome Behrami and Saramati decision. That case involved claims that acts by states contributing troops to the two UN-authorized Kosovo missions violated the European Convention on Human Rights. While the Court cited the “effective control” test in ILC Article 6, it ultimately rested its holding on the UN having retained “ultimate authority” over the two missions by virtue of a Chapter VII resolution. While the Council had delegated operational authority over the missions to NATO, the European Court reasoned that the Council need not have delegated actual control and could have retained operational control itself (paras. 135-6).

The obvious problem with this approach is that even non-delegated “ultimate authority” may not at all translate into actual control on the ground. Even where a formal chain of command runs directly from UN headquarters to peacekeepers in the field, the “phone home syndrome” – where blue helmet commanders clear each UN order with their national capitals – may leave the UN with little actual authority over its personnel. The Court may have borrowed the “overall control” test from its line of decisions on whether the European Convention constrains member states who occupy territories of non-member states. But as Kjetil Larsen notes in his perceptive critique of the decision, the occupation decisions were premised on the understanding “that the occupying power controls the authorities in the occupied territory.” Indeed, the very definition of occupation in Article 42 of the 1907 Hague Regulations – and customary law for many years — requires actual effective control. In short, the Behrami and Saramati test may well attribute acts to IOs who do not have the capacity on the ground to avoid human rights violations for which they may be held responsible.

As noted earlier, whether the European Court is understood to have rejected the “effective control” test altogether or simply mangled it, the ILC seems to have struck back in its commentary by emphatically rejecting the ECHR’s approach. But whether the ILC can maintain its view of the law is uncertain. The Behrami and Saramati decision was clearly the preferred outcome for European troop-contributing states, which had little interest in adverse human rights judgments being added to the burden of their involvement in peacekeeping missions. The political pressure they likely exerted on the Court will surely reappear when the General Assembly’s Sixth Committee reacts to the Draft Articles. Thus it is not at all clear whether Article 6 will survive in its current form.

Second, the principle in Article 5(2) that an IO’s “internal rules” determine the functions of its organs and agents is borrowed from the ILC’s widely praised Articles on State Responsibility. But a distinction between internal and external law for IOs is quite unlike the the national/international law division used for the state responsibility rules. What is the “internal” law of an IO but another species of international law? IO internal law usually derives from its constitutive treaty. The meaning, status and viability of those treaties, like all treaties, is a matter of international law. Most importantly, a treaty may be overridden by a hierarchically superior norm – usually a jus cogens norm or a Chapter VII resolution of the UN Security Council (via Article 103 of the Charter). Regarding IO “internal law” as an entirely separate set of norms seems a misplaced borrowing from the State Responsibility articles.

Finally, would the “effective control” test prevent an international organization from intentionally shielding itself from responsibility when it enters into agreements with outside parties? In domestic legal systems parties frequently create “independent contractor” arrangements that deliberately aim to avoid creating principal-agent relationships and, in so doing, shield would-be principals from responsibility for the acts of their would-be agents. One can think of many situations in which IOs would seek the same arrangement.

But under ILC Article 6 attribution of state acts to an IO would not be affected by such a legal characterization of the relationship. The question would instead be a purely factual one. Indeed, although citing a different rationale, the ILC makes a point of noting that agreements between the UN and troop-contributing states could not conclusively determine the attribution question (the Commission reasons that the rights of individuals such as those in the Behrami and Saramati cases could not be determined by agreements to which they are not parties). Are IOs therefore destined to face the following dilemma whenever they enter into relationships with state organs: either exercise little control over the state actors in order to avoid ultimate responsibility or assume operational control and with it responsibility for the state’s wrongful acts? The former would certainly avoid liability but would also prevent IO from issuing direct commands to the state actors, presumably necessary to get its work done. The latter would allow the IO to achieve the results it seeks from the relationship with the state, but it also makes liability much more likely. The independent contractor device would avoid this trade-off between effectiveness and liability. But the ILC would seem to have made it unavailable.

The bright spot in these difficulties is that attribution is one of the few areas of IO responsibility with considerable support in state practice and decisional law. These will continue and perhaps evolve in the future, and perhaps the dilemmas will work themselves out in the process.