My Summer Vacation (Part IV): Misadventures in Subjecthood

As a member of the U.S. State Department’s Advisory Committee on International Law, I was asked to give my reactions to the International Law Commission’s release, on first reading, of a set of proposed articles on the Responsibility of International Organizations. (For the ILC’s report containing these draft articles and commentaries, see here). I was probably asked to undertake this task given my prior interest in these matters (see my 2006 speech to the Canadian Council of International Law, “International Organizations: Accountability or Responsibility?”).

As my memorandum produced for the Advisory Committee meeting on June 21st indicates (see my memo on the “ILC’s Draft Articles on the Responsibility of International Organizations”), time has not ameliorated my concerns about the direction of the ILC’s work. On the contrary the newly completed set of 66 articles heightens my worries that, on this occasion, the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development. In this case, the latter has vastly overtaken the former. In my view, the ILC’s latest effort is likely to encounter considerable resistance where it matters the most, among states. (Of course, my memo reflects my own views and do not necessarily reflect those of the rest of the Advisory Committee or of the U.S. State Department.)

There is scarcely any doubt that the accountability and responsibility of international organizations (henceforth “IOs”) is among the hottest topics in public international law. Scandals involving the UN’s oil-for-food, the actions of UN peacekeepers, the sexual harassment of UN employees, and the (in) actions of the UN Security Council in too many sites of atrocity to mention have kept the issue on the front burner for some time. Accountability concerns also help to explain the proliferation of inspection panels in international financial institutions and have given rise to a number of high profile cases before European courts. Political scientists and legal scholars have repeatedly turned to the question, proposing a variety of solutions, extending from political “checks and balances” among institutional organs to more familiar approaches to control or supervise the discretion of agents drawn from principal-agent theory. (See, e.g., Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” 99 Am,. Pol. Sc. Rev. 29 (Feb. 2005); Karen Alter, “Agents or Trustees?”)  From a legal standpoint, the difficulties of turning to courts – national or international – to impose liability on an IO such as the UN are familiar. National courts, including those in the United States, usually recognize the immunity of IOs under binding treaties, such as the UN Convention (which grants the UN absolute immunity) or domestic laws. Comparable immunities make it difficult for claimants, even IO employees victimized by their superiors’ sexual harassment, to secure a judicial remedy against IO officials – except within the internal mechanisms provided by the organizations themselves. (See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983). But see August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” 7 Chinese J. In’tl L. 285 (2008) (noting a trend among a small number of national courts to withdraw immunity where needed to avoid a denial of justice).) International courts rarely even have jurisdiction to consider such questions since only states can be parties to contentious cases before the ICJ, and IOs are not even capable of joining instruments such as the European Convention on Human Rights. The rare example where an IO can be regularly sued in court – suits against EU institutions within the European Court of Justice – suggest how rarely the question can come up as the European Union, in the views of most, is probably sui generis, belonging neither to the genus of international organization nor sovereign state.

The prospect of using a court to secure a remedy against members of an IO has come up somewhat more frequently. Some European courts have suggested that such liability might be possible, for example, based on the principle of abuse of right, estoppel or unclean hands. (See, e.g., Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 Feb. 1999, ECHR 13, 116 ILR 121, 134.) Essentially the idea is that states should not be able to undertake action through an organization that would be illegal or wrongful if committed by any of them individually – as under human rights treaties – and that on such occasions courts should pierce the IO veil and render states (or particular members) liable. But these suggestions have been mostly relegated to dicta. For the most part, rendering states liable for their actions as members of a global IO such as the UN have been resisted by scholars and understandably, by states themselves. (See, e.g., Institut de Droit International, The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties, Session of Lisbonne (1995).)

What this means is that but for instances involving European institutions, rare cases where IOs have assumed territorial responsibilities (as in Kosovo), and the special case of UN peacekeepers – for whom the UN has accepted responsibility historically – the responsibility of IOs has been a topic for academic speculation but relatively little practice. The combination of organizational immunities (qualified or absolute) and absence of judicial (or other) forum with jurisdiction to hear complaints has made the suggestion — drawn from the ICJ’s affirmation of “legal personality” for the UN in the Reparation Case that like all other subjects of international law, IOs have rights and responsibilities — an intriguing question for scholars but not one that not engaged the attention of many practitioners or judges. This is, of course, very different from the position of the leading subject of international law, states, for whom the enjoyment of privileges and immunities has not been the end of the story. Given their reciprocal needs vis-à-vis each other, states have generally recognized that they are not immune from responsibility for their internationally wrongful acts and that their mutual responsibilities embrace, as was recognized by the ILC’s Articles of State Responsibility, diverse means — from apologies to countermeasures to financial liability. Accordingly, when the ILC turned its attention to that topic, its nearly multi-decade-long effort involved far more codification of the abundant practices of states and courts than progressive development. The last only occurred on the margins of enumerating the black letter rules for which the ILC found real world support.

With respect to the IO responsibility project, the ILC was not hindered by the absence of practice. It bravely (rashly?) undertook to delineate rules with respect to not only IOs, but with respect to states in connection with acts that they commit within IOs. (At a minimum, truth in advertising would suggest that the ILC re-title its effort, “articles on the responsibility of IOs and with respect to states in connection with their acts within IOs.” Such an awkward mouthful has not hindered other ILC efforts in the past.) Further, the ILC’s view of its ambit is exceedingly broad as its proposed rules apply to all international (not just “intergovernmental”) organizations, from the WTO to the OSCE to OPEC, whether established by treaty or other instrument in international law and whether or not the organization includes non-state parties. In addition, the articles purport to extend to both the acts and omissions of such organizations.
The ILC took as its model its earlier articles of state responsibility. (This is demonstrated by the chart comparing the two sets of articles attached to my memorandum to the State Department). That chart was prepared by Santiago Villalpando, a UN lawyer. Mr. Villalpando, who prepared this chart for presenting this subject to my class, was not consulted in preparing my memorandum to the State Department Advisory Committee and that memo does not represent his views or those of the UN.) The IO articles substantially replicate in structure and often in wording, the earlier provisions for states, sometimes merely replacing the word “state” for “international organization.” As the draft commentaries to the new set of articles repeatedly suggest, the ILC concluded that even where little or no practice existed (as was most often the case), “there was no reason” not to apply the same provisions that applied to states. The rationale for this inference appears to be the ILC’s assumption that since states and IOs are both legal persons or subjects of international law, the same rules should presumptively apply to both.

I have elsewhere suggested that international lawyers need to exercise greater care on the subject of subjects. In an address at Santa Clara University School of Law last spring that is soon to be published (see “Are Corporations ‘Subjects’ of International Law?” (working draft)), I suggested the hazards of drawing conclusions from the Reparation Case, especially with respect to the contested (and increasingly litigated) question of whether corporations are “subjects” of international law. I used the ILC’s IO responsibility efforts in that context as a cautionary tale of what happens when the legal conclusion that something is a “legal person” or a “subject” of international law is deployed, top-down, to answer questions that require considerable more nuance and thought, bottom-up.

My memo to the State Department, like my earlier speech to the Canadian Council, enumerate other difficulties with the ILC’s proposed IO responsibility articles and its misplaced reliance on subjecthood. The absence of state practice concerning the responsibility of both IOs and their members should have served as a warning that in many if not most instances, states did not anticipate that either would occur – or that if liability would be imposed on either the organization or themselves as members that these rules would be automatically extrapolated from the relations of states inter se. The ILC’s proposed articles also ignore the salient fact that sometimes the powers that states accord to their IOs – such as the Security Council’s unique power to declare a threat to the international peace and act accordingly or the IMF’s unique power to impose conditionality on its loans – have no state counterpart and cannot be analogized to the powers (or the accountability measures) anticipated for states. Moreover, the ILC’s attempt to delineate secondary rules on IO responsibility seem premature given the relative scarcity of real world practice demonstrating the existence of primary rules for entities that cannot, for example, become parties themselves even to human rights conventions.

Another difficulty lies in the draft articles’ failure to address with clarity the status and significance of IO internal rules or procedures. Whereas with respect to states, the ILC was able to state, with little controversy, that a state’s internal law provides no excuse from international responsibility, the rules of IOs are both internal rules and rules of international law. The ILC’s proposed articles are inconsistent on whether adherence to an IO’s rules (e.g., denying a remedy with respect to the Rwandan genocide for failure to achieve nine votes in the Security Council) protects an IO (or a state) from liability.

Finally, the draft articles assume, again because of the reliance on the misleading state analogy, that IOs are sufficiently alike (or juridically equal?) so that the responsibility rules elaborated for, say the WTO, apply equally with respect to OPEC, UNICEF, the WHO, or the IMF. It also assumes that the same rules governing the piercing the IO veil and making IO members liable apply with respect to these diverse organizations. This presumes that all IOs have the same relationship between institutional organs and their membership, whereas distinctions surely exist between “member-driven” organizations that operate wholly on the basis of consensus among all its members, as compared to ones that, like the IMF or the World Bank, are essentially trustees for members’ funds. Only the first type of organization might perhaps be seen in traditional principal-agent terms. It seems odd that such a fundamental distinction between IOs, evident to political scientists (see, for example, the article by Karen Alter cited earlier), should escape the attention of lawyers.

But even those caught up in the positivistic logic of the Reparation Case should have taken seriously the ICJ’s warning in that advisory opinion not to confuse IOs with states or “super-states.” Neither did the ICJ suggest in its opinion that IOs enjoy the benefit of sovereign equality – a premise that appears to underlie the ILC’s secondary rules of state responsibility. The ICJ’s conclusion that the UN in that instance could bring a claim against a state to seek recompense for harms done to its mediator drew on the particular provisions in the UN Charter anticipating such peacekeeping efforts. What the ICJ concluded in Reparation Case was that the functions and capabilities of IOs, unlike those of states, turn on their respective charters. This is a functionally based conception of legal personality and subjecthood at odds with the concept that is applicable to states. By contrast, the ILC’s draft articles such as articles 20-24 (presuming that all IOs can equally invoke self-defense, countermeasures, force majeure, distress, and necessity), ignore the differing mandates, organizational structures, and powers of IOs. They assume that all IOs enjoy the same degree of legal personality and that the secondary rules elaborated over centuries with respect to states apply equally among IOs and with respect to their members’ acts in connection with IOs.

The implications of the ILC’s articles are breathtaking. Consider its provisions, at articles 50-56, on countermeasures. These appear to assume that since IOs are subjects with rights under international law they, like states, must be able to rely on coercive means not otherwise authorized in their charters to enforce such rights given the absence of a centralized system of enforcement. The ILC commentaries acknowledge that relevant examples of IOs taking such countermeasures, which by definition are not explicitly sanctioned by their charters or rules, is “scarce” (Commentary, n. 4 to Art. 50). But the few examples that the ILC might have cited are suggestive of what it has in mind: the UPU expelled South Africa in 1979 because of its system of apartheid; the IAEA refused to recognize in 1982 the credentials of Israeli delegates in the aftermath of the raid on the Osiraq reactor; Myanmar was deprived of ILO technical cooperation in 1999 as a result of its practice of forced labor; the OAS suspended Cuba from membership in 1962; Egypt was suspended from the Organization from the Islamic Conference in 1979. (These examples are cited as the kind of countermeasures anticipated by the ILC’s articles by Frédéric Dopagne, “Sanctions and Countermeasures by International Organizations: diverging Lessons for the Idea of Autonomy,” in Richard Collins and Nigel D. White, ed., International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (forthcoming 2011).) Although these actions were not characterized as “countermeasures” by the relevant organizations, each of them appears to satisfy the ILC’s criteria of a “countermeasure.” In each case above the organization breached its own charter or rules in order to sanction a member. Significantly, these instances have not drawn uniform praise from scholars or others. At least some of these are now seen as regrettable violations of the law undertaken for political expediency. The ILC would license all these actions, generalize them to all organizations no matter their functions, purposes, or respective relationships with their members and, presumably, extend IOs’ ability to pursue such “countermeasures” even against non-members. (After all, once an IO is permitted to take the law into its own hands in order to sanction a member, what is there to stop it from seeking to impose sanctions on a non-member? Subjecthood, according to the Reparation Case, is an objective fact good against the world, after all.)

Perhaps it is not surprising that the ILC’s commentaries justify its rule on countermeasures by citing the comments it received from the WHO and UNESCO, both of which saw no reason to deny them such powers. One can only imagine the countermeasures that organizations like the WHO or UNESCO now see themselves as licensed to impose on the rest of us. Equally mysterious are the preconditions that the ILC appears to envision with respect IOs’ “self-defense” or their invocations of the defense of necessity. One wonders precisely what are the “essential interests of the international community” that is supposed to license the WTO’s invocation of the defense of necessity and therefore permit that body to take action that would otherwise be in violation of international law? (Compare, ILC draft article 24.)

While the significance of the ILC’s proposed set of IO articles might be dismissed on the assumption that some IOs and most states will ultimately resist them, it must be kept in mind that the ILC has lately foregone those kinds of political checks. In a number of recent cases, most significantly its 2001 promulgation of draft articles on state responsibility, the ILC has avoided the route of proposing drafts to states for the negotiation of a multilateral treaty on point. This has not made the ILC’s efforts less legally important. Most notably, the ILC’s Draft Articles of State Responsibility are now regularly cited by, among others, investor-state arbitrators. That particular ILC “soft law” effort has turned to very hard law within a very short period of time. The ILC probably hopes for the same result in this instance. But while it is doubtful that the ILC’s latest effort will be “hardened” as quickly through international adjudication – if only because of the scarcity of judicial venues to address issues of IO responsibility – its IO articles might come to be cited by IO bureaucrats or others working within IOs and may yet gain life. If so, the ILC’s “progressive” misadventure in subjecthood may yet succeed – whether or not to the betterment of international law or its coherency.