The Responsibility of International Organizations: The Controversy Over Countermeasures

To continue with our earlier postings on issues of interest in the Draft Articles on the Responsibility of International Organizations – a subject of current debate involves countermeasures. Countermeasures can be defined as actions (reprisals) taken to respond to a prior negative action that would violate international law but for the prior wrong. Countermeasures are to be distinguished from sanctions which are per se lawful. The draft articles do not define countermeasures, although draft Article 50(2) notes that “countermeasures are limited to the non-performance for the time being of international obligations of the State or international organization taking the measures towards the responsible international organization.” The draft articles start from the premise that an injured international organization or state may take countermeasures against a responsible international organization. (The Articles on the Responsibility of States similarly provide that states may take countermeasures against responsible states.) Draft Article 21 also suggests that an international organization may take countermeasures against a responsible state, although there is some support for including a separate draft article to address this situation.

Why are countermeasures controversial? The absence of centralized general enforcement institutions in international law means that countermeasures are a form of self-help. As such, there is controversy surrounding their inclusion in any type of responsibility regime for the simple reason that they may excuse acts by a victim that judges an act as wrongful, and responds directly. In other words, some fear that the inclusion of countermeasures will encourage coercion, retaliatory measures, subjectivity, ultimately resulting in interrupted functioning of international organizations. Moreover, states and international organizations are split over whether countermeasures should be applicable in the context of International Organizations at all. Some believe they are irrelevant given the notable lack of practice to date. Others hold that it is wiser to acknowledge, but regulate and limit countermeasures by including them in the draft articles. This last option was the position ultimately adopted in the Draft Articles on State Responsibility, and appears likely to prevail here as well.

Nonetheless, the level of discontent with countermeasures can be seen in China’s recent comments to the 6th committee of the General Assembly: “There has been considerable controversy on whether to introduce the concept of countermeasure into the regime of responsibility of international organizations. Taking into account the important difference between international organizations and states, that is, international organizations symbolize a certain degree of centralization of the international community and represent a certain degree of organization and cohesion in the decentralized international community in which States are the main actors, we insist that the introduction of the concept of countermeasures into the regime of responsibility of international organizations would run counter to the abovementioned function assumed by international organizations. We propose the Commission to tackle this issue in a more cautious manner.”

The provisions on Countermeasures are found in Article 21, and in Part IV of the current draft.

Draft Article 21 provides that:

1. Subject to paragraph 2, the wrongfulness of an act of an international organization
not in conformity with an international obligation towards a State or another international
organization is precluded if and to the extent that the act constitutes a countermeasure
taken in accordance with the substantive and procedural conditions required by
international law, including those set forth in Chapter II of Part IV for countermeasures
taken against another international organization.

2. An international organization may not take countermeasures against a responsible
member State or international organization under the conditions referred to in paragraph 1
unless:
(a) The countermeasures are not inconsistent with the rules of the organization;
and
(b) No appropriate means are available for otherwise inducing compliance with the
obligations of the responsible State or international organization concerning cessation of
the breach and reparation.

Chapter II of Part IV sets out the Countermeasures regime, providing in Arts. 53 – 55 in particular, that countermeasures must be (i) proportional; (ii) the target entity must be given notice and an opportunity to negotiate, and (iii) countermeasures may not be taken if the situation is pending before a dispute resolution body with jurisdiction over the situation. An important difference between the responsibility of states and international organizations is reflected by Article 50(4), which provides that countermeasures shall be taken in such a way as to limit their effect on the exercise by the responsible international organization of its functions. This provision reflects the limited mandate and function of IOs as a general matter.

A particularly thorny question in recent discussions revolved around what should happen where organizations do not have internal dispute resolution mechanisms, or where the internal rules of the organization are silent on the use of countermeasures. Where internal rules exist, the lex specialis rule provides that they will govern the use of countermeasures. Where the internal rules do not address countermeasures however, as is often the case, the draft articles will take on special significance as they will form default rules. This may, of course, spur IOs to create their own rules, but it indicates how unregulated and unexplored the notion of countermeasures is in the context of IOs at present. A final area of debate worth flagging is whether non-injured states or organizations can bring countermeasures against an IO, on the basis, for example, of an erga omnes obligation. The issue is not clearly addressed by the draft articles, although draft Article 56 states that the chapter is “without prejudice” to the right of any State or IO to invoke responsibility. This suggests that the right to respond may exist on the basis of Art. 48 paragraphs 1, 2 & 3, which make reference to obligations owed to groups and the international community.

Much food for thought.