UN Releases Comments on Draft Articles on Responsibility of International Organizations

The UN has just released its comments on the ILC’s set of 66 Articles on the Responsibility of International Organizations (“RIO”) as document  A/CN.4/637/Add.1 (available on the ILC website). The commentary is interesting both for what it says and what it doesn’t say. It should be noted that the comments take a more conciliatory view of the ILC’s enterprise than a number of other IOs who suggested the project should be abandoned. In certain cases, the UN even endorses the inclusion of a rule despite concerns about its implications in practice. (Eg, Art. 20 on Self-Defense).

Points of note include the UN’s detailed discussion of peacekeeping operations, in which they distinguish between command and control and UN authorized peacekeeping. According to UN practice, the UN assumes responsibility for the former, but not for the latter. The ECtHR’s failure to recognize this distinction led to the much criticized Behrami and Saramati decision. The UN’s commentary helpfully elucidates the potential application of Articles 5 & 6 of the Draft Articles (on attribution and effective control) going forward. Interestingly, it also shows that the UN’s application of effective control is broader than that proposed by the ILC, in that the UN notes it continues to assumes responsibility for peacekeeping missions under its command and control even after it has lost effective control.

The UN comments echo two common complaints about the ILC’s attempt to progressively develop the law relating to the responsibility of international organizations: limited practice, and the principle of speciality. In particular, the UN notes that IOs are not created alike, and the scope of their personality is a function of their specific mandates. As a result, the UN suggests that the recognition of lex specialis does not go far enough in recognizing the diversity of IOs.

The UN does not hold its punches on certain proposed articles. For example, it criticizes the current definition of “agent”, noting that the UN could be held responsible for an unjustifiably broad range of acts. It also notes how the pervasive references to “internal” rules need to be clarified. In addition, the UN suggests the ILC reconsider or even drop Articles 14 and 15, which address indirect liability from directing and controlling, or coercing another IO or State. The UN pushes back on Article 16, which would assign responsibility to an IO that authorizes members or IOs to commit an act that would be internationally wrongful if taken by the IO itself.

The UN’s commentary also interesting for what it doesn’t say. For example, Articles 40, 41 & 48 set out an aggravated responsibility regime applicable to breaches of peremptory norms.  These articles (common to RIO and the state responsibility articles) authorize IOs and states other than those injured, to invoke the principles of responsibility where erga omnes obligations are concerned. The State Responsibility commentary on the parallel provisions give as examples acts of aggression, apartheid, and genocide. Given the obvious overlap between these crimes and the Security Council’s jurisdiction, the UN’s silence on these articles is curious. Indeed, the aggravated responsibility regime is an area where primary norms have leaked into the secondary rules of responsibility, in that they prioritize community interests like peace. Moreover, these articles could legitimize non-institutional reactions to violations of certain international obligations, which might side-line an inactive Security Council.

A second provision that passed without much comment is Article 66. This provides that “the articles on responsibility operate without prejudice to the Charter of the United Nations.” The UN took a curiously technical approach to this article, simply reacting to the ILC’s commentary with regards to a reference to Article 103, and urging consistency on phrasing in the parallel article on State responsibility. What the UN does not acknowledge explicitly however, is that the interplay between the UN Charter and the rules of responsibility are likely to be significant going forward. Not only has the Security Council invoked principles of responsibility on a number of occasions (e.g. finding Iraqi responsible for the invasion of Kuwait and requiring it pay for damages), but states may use the law of responsibility as well, by for example,  invoking excuses like necessity before UN organs. Despite the ILC’s efforts to insulate the law of collective from the effects of the law of responsibility therefore, and we can anticipate considerable interplay going forward.