This week, state delegates to the Sixth (Legal) Committee of the UN have been debating the most politically sensitive topic of the latest International Law Commission‘s (ILC) report: Head of State Immunity from criminal jurisdiction.

The topic is sensitive for several reasons.   First, it raises the question of whether there should be exceptions to immunity for serious crimes.  In this regard it is relevant to note that Art. 27 of the ICC Statute does not recognize the immunity of state officials for international crimes, although delegates noted that courts can differ widely on this issue.   Second, it requires a determination of what kinds of officials should benefit from the immunity – the traditional troika of heads of states, ambassadors, and foreign ministers– or a broader range of foreign state representatives.  Third, it forces the issue of how to balance accountability and immunity, and with that, deference to state sovereignty.

The ILC had requested state comments on their national law and practice on two issues:

(a) Does the distinction between immunity ratione personae and immunity ratione materiae result in different legal consequences and, if so, how are they treated differently?

(b) What criteria are used in identifying the persons covered by immunity ratione personae?

Immunity ratione pesonae refers the personal immunity of a head of state.  It is linked to the office, and is very broad because it can cover public and private acts.  In contrast, ratione materiae, or functional immunity, covers acts by state officials in their official capacity.  It is determined by the nature of the acts rather than the office itself, and would apply to former officials after they have left office.  The ICJ has tackled aspects of these questions in the Arrest Warrant case, in Djibouti v. France, and most recently in the Jurisdictional Immunities case.

The topic is legally significant because there has been a difference between the views of national and international courts.   To date, it appears that troikas get absolute status-based immunity from proceedings in other countries’ courts, but not from proceedings in international tribunals.    Moreover, there is a link between immunities and state responsibility.   As the UK delegate explained, a plea of immunity ratione materiae in criminal cases was a plea by the State that the act of its official was an act of the State itself, which was an acknowledgement of the State’s responsibility and, therefore, meant that any claim or remedy would lie at the level of international law.  Another contentious issue is whether there should be exceptions to immunity for violations of jus cogens norms, and further, how to distinguish the legal regimes applicable to the two aforementioned types of immunity.  The Special Rapporteur’s report helpfully highlights the areas of contention.

Many states want to maintain a broad regime of immunities and discouraged a lex ferenda approach to the topic.  Germany, however, reiterated that immunity does not mean impunity, because states can always waive immunity, prosecute under their own national laws, or defer to international criminal jurisdiction.

For those following this topic, a few useful background notes are available here and here.  The ILC will begin producing draft articles for debate, and we can expect this will be a hot topic in the years to come.

The annual CCIL conference in Ottawa is just around the corner.   The program this year is fantastic (as always).  Here is an overview from Prof. Fannie Lafontaine, one of the co-chairs:

From the financial turmoil in Europe and the environmental disasters in Haiti and Japan to the surge for democracy in the Middle East and the resulting civil strife, international relations move from crisis to crisis. The theme of this year’s Canadian Council of International Law (CCIL) Conference, « International Law in Times of Crisis and Emergency », will allow participants to consider the effectiveness of international law as well as its failures in these contexts.  It all begins on Thursday 8 November with a pre-Conference Workshop on ‘Litigation Before International Tribunals’ with six speakers coming from different fields of international law, from trade law to international criminal law. The Conference then begins with a student fair and workshop and the Keynote speech by David Malone, President of the International Development Research Council (IDRC) entitled ‘The United Nations Security Council : Boom or Bust ? », followed by a reception hosted by the Canadian Legal Adviser.

Friday 9 November opens in force with an opening plenary with renowned international law expert Philippe Sands, QC, of University College London. The day presents 15 different panels covering a wide variety of topics within the broad theme of ‘crisis’, from terrorism to the role of international organizations to migration issues to the Responsibility to Protect doctrine to aboriginal issues to the regulation of armed violence to environmental questions to criminal law to food security. And we are not telling you all of it! Friday also offers two thrilling plenary speeches, a first from François Crépeau, UN Special Rapporteur on the Human Rights of Migrants, on the necessity of reconceptualising migration policies an a second one from Jennifer Hillman of Cassidy Levy Kent, a former WTO Appellate Body Member. The night’s famous banquet held in the strikingly beautiful Grand Hall of the Canadian Museum of Civilization will also present Keynote Speaker D.A. Bellemare, MSM, c.r./QC, Ad.E., former Chief Prosecutor of the Special Tribunal for Lebanon and former Commissioner, United Nations International Independent Investigation Commission (UNIIIC). Saturday 10 November is just as rich and exciting, with 11 panels covering issues as varied as conflict resolution and justice, international arbitration, multinational enterprises, health care in war zones, the rules governing financial crises, development and humanitarian assistance and extraterritorial jurisdiction. Saturday also presents a stimulating plenary panel on the Security Council with David Malone and Rohan Mukherjee from Princeton University

The full program and details for registration are available here.  The Conference Co-chairs are Fannie Lafontaine (Laval University)  and Rodney Neufeld (DFAIT).  CCIL Vice-president (Annual Conference) is Robert Brookfield (DFAIT).

For those of us in the direct line of Hurricane Sandy, it seems appropriate to highlight recent developments in international disaster law.

Many of the legal challenges arising from natural disasters involve practical issues such as obtaining visas, removing bureaucratic barriers to financial aid and ensuring that foreign actors offering assistance comply with local laws.

However, natural disasters also raise a number of bigger questions:

• Should the responsibility to protect apply to natural disasters?
• Do states have a duty to accept help following natural disasters?
• How will the obligations to protect citizens affect our understanding of sovereignty?

The International Law Commission (ILC) has been studying the Protection of Persons in Natural Disasters since the 2004 Indian Ocean Tsunami and Hurricane Katrina.   Next week, the Sixth Committee of the UN will consider the ILC’s Fifth Report, which now includes 11 provisionally adopted articles.  The duty of cooperation, in particular, triggers sovereignty concerns, as described by the Special Rapporteur:

Seen from the larger perspective of public international law, to be legally and practically effective the duty to cooperate in the provision of disaster relief had to strike a balance between three important aspects. First, such a duty could not intrude into the sovereignty of the affected State. Second, the duty had to be imposed on assisting States as a legal obligation of conduct. Third, the duty had to be relevant and limited to disaster relief assistance, by encompassing the various specific elements that normally make up cooperation on the matter.

The International Federation of the Red Cross and Red Crescent Societies is a first mover in the field of disaster relief, focusing on state preparedness and technical assistance.  It has created comprehensive and insightful guidelines that are worth a read.

The Hague Academy of International Law has also been considering the issue of state responses to natural disasters, including the possibility of a new Hague Convention on environmental damages, which would address the private international law issues raised by post industrial disaster liability claims.

Professor Samantha Besson, Professor of Public International Law at the University of Fribourg, Switzerland, predicts the following two issues will require most attention going forward:

From the perspective of international law-making, first of all, the main issue is the fragmentation of public international law regimes depending on the kind of disasters and the agents at stake, on the one hand, and whether the concern lies in pre-, during or post-disaster measures, on the other. Currently, the focus of international law has been much more on industrial disasters and on individual damages, on the one hand, and on post-disaster liability issues, on the other. It is time to work more on natural disasters, on their collective dimension and on pre-disaster measures.

The second important issue relates to international institutions. Almost all difficulties currently confronting international law pertaining to disaster have an institutional component. It is important to face it openly as a result, as institutions allow the identification and allocation of duties and responsibilities among states and other international agents.

This is clearly a timely issue.  With climate change, some expect that significant natural disasters are likely to occur more frequently.  Although a consensus has yet to emerge as to how best to address this internationally, policy makers can draw on a lot of “lessons learned” from tragedies including the earthquake in Haiti, the countries affected by the Indian Ocean Tsunami, and Hurricane Katrina.

Do readers think this is an area that is calling out for more international attention?

Two years ago this month, an unprecedented cholera outbreak in Haiti left more than 7,500 Haitians dead.   As the New York Times reported in a front page article in May 2012, “Lightning fast and virulent, it spread from here through every Haitian state, erupting into the world’s largest cholera epidemic despite a huge international mobilization still dealing with the effects of the Jan. 12, 2010, earthquake….  Epidemiologic and microbiologic evidence strongly suggests that United Nations peacekeeping troops from Nepal imported cholera to Haiti, contaminated the river tributary next to their base through a faulty sanitation system and caused a second disaster.”  A BBC report from earlier this week indicates that the cholera epidemic continues.

A year ago, a Boston based group called the  Institute for Justice and Democracy in Haiti (IJDH) filed a trail blazing class action against the UN on behalf of over 5,000 plaintiffs.  The petition asks for compensation for the victims ($50,000 for injured and $100,000 for deceased), better water sanitation, and a public acknowledgement of responsibility.  IJDH alleges that the cholera outbreak is a violation of Haitian law and certain international obligations, such as the right to life.

IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character.  No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge.  To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance.   Moreover, there is very little information available on the procedure through which the UN considers such claims internally.  The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed.  Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.

The UN’s delay may be attributable to a few factors…

In his August 9, 2012 report, the Special Rapporteur on Torture, Juan Mendez, makes the claim that there is an emerging norm that the death penalty constitutes cruel and unusual punishment.  Mendez acknowledges that international law does not prohibit the death penalty, but notes it does encourage its elimination.  Specifically, his report states:  ”there is an evolving standard whereby states and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel and degrading treatment.”

Not surprisingly, this claim caused quite a stir at yesterday’s (October 23) Third Committee meetings.  Many countries (Singapore, United States, Egypt, amongst others) used their time to push back on this claim.

Nonetheless, Mendez argued that those countries that did not participate in the emergence of the norms were free to reject them. In other words, persistent objectors to a customary international law norm are not bound by it.

In parallel, the ILC is reconsidering the formation and evidence of Customary International Law. The Death Penalty might be a relevant test case. What do Opinio Juris readers think?

Children and armed conflict or “CAAC” (as the unharmonious acronym goes), has become a controversial area of activity for the UN Security Council.   Although the Security Council has adopted a series of important resolutions on the topic since 2005, its most recent foray into the fray led to four abstentions to Resolution 2068.   Azerbaijan, China, Pakistan and Russia declined to support the resolution, which largely repeated the language of prior resolutions.

Why the controversy?  Lurking behind attempts to address the induction of children into armed conflict situations are two important legal questions.

First, some query whether the definition of “armed conflict” established by the Geneva Conventions and Additional Protocols is met in the circumstances being investigated by the Special Rapporteur.  Specifically, some of the situations included in the SRSG’s reports force the issue of what status non-state actors should have under IHL, and particularly whether non-state actors can control territory.  In addition, its not clear whether the situations under investigation constitute sustained hostilities.  The Legal Opinion published in the UN Juridical Yearbook (2009) highlights this controversy.

Second, some countries are concerned that the Security Council is engaging in “mission creep” by considering situations in countries that are not otherwise on its agenda. The Security Council addresses CAAC listed on Annex 2 created under SC Resolution 1882. Most of these countries are not, however, part of the “situations” the Security Council has jurisdiction over pursuant to the usual Chapter VII procedure.  As a result, those suspicious of an activist Security Council assert situations are arriving on the Security Council’s agenda through a back door.

The biggest victims of the controversy are children.  The persistence of sexual assaults, attacks on schools and hospitals, and recruitment of children into armies is serious.   A number of countries have signed “action plans” with the UN to implement the principles in a concrete way.   The ICC’s Lubanga judgment of August 2012 reinforced this effort – convicting him of conscription and enlistment of children under 15 for use in active hostilities.   Similarly, the decision of the Special Court for Sierra Leone Tribunal in Taylor creates a strong legal framework to prosecute crimes against children.  The feisty new Special Rapporteur Zarrougi is not holding her punches.  She was to the point in her August 2012 report, and in her presentation to the Security Council in September.

Want to keep up to speed on this important issue?  Download this impressive new app developed by the Watchlist on Children and Armed Conflict and Liechtenstein’s mission to the UN, which collates key documents and policy questions on the issue.

The International Law Commission (ILC) has adopted the Draft Articles on the Responsibility of International Organizations (RIO). The final version of the articles is available on the ILC’s website. As the Chairman of the Drafting Committee noted, the adoption of these articles marks a historic occasion as the ILC has been working on the law of responsibility for over 60 years.The ILC is expected to adopt the commentaries to the Articles in August, 2011. Both the text and commentaries will be sent to the GA in October 2011 for action.

Skeptics of the ILC’s project will quickly see that the final version of the RIO articles is similar to the version released after the ILC’s first reading in 2010. Indeed, the structure, coverage and ultimately the implications of the Draft Articles remain largely unchanged. For an analysis of the criticisms and the implications of the Draft Articles, see my YJIL on-line article here.

The ILC’s decision to stay the course will no doubt be of concern to the many IOs that have expressed displeasure with earlier versions of the Articles. At this juncture, IOs are left with few options: (i) they could contract around the draft articles and take advantage of the provision on lex specialis, allowing their rules to take precedence over the residual rules of responsibility; (ii) they might make use of the many critical IO comments submitted to the ILC to argue that the Articles are not binding (as customary law), or (iii) they could try to lobby States to speak out against the Draft Articles before they get to the GA. If a treaty were being proposed, IOs might have been able to control the application of the Articles by proposing a special sign-on process, as they did with the Treaty on Privileges and Immunities of 1946. As it stands now, no treaty is on the books, and hence no such option is available to them.

For those who have been following the maturation of the Draft Articles, there are some developments of note in this final version. First, the Articles now include this definition of organ: “any person or entity which has that status in accordance with the rules of the organization.”   The definition of Agent changed slightly, and now reads: “an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.” This more expansive definition brings it in line with the approach of the ICJ in the Advisory Opinion on Reparation for Injuries. Second, a new Article 5 establishes that “the characterization of an act of an international organization as internationally wrongful is governed by international law.” This provision was added to clarify that international law determines whether an act of an IO is wrongful or not. Prior versions were ambiguous as to the role of the “rules of the organization” in determining wrongfulness. Article 17 has been restructured.  This interesting article lays the basis for responsibility of IOs that either adopt binding decisions or non-binding authorizations on member states or other IOs.  The inclusion of “authorizations” is significant, as it shows how states that operate through IOs may become indirectly responsible for the acts of an IO. Finally, more detailed criteria have been added to the countermeasures regime in Articles 22 and 52, 53 & 57.

The implications of the Draft Articles are not to be underestimated.  They will affect states operating through IOs, as well as IOs directly.  Although they don’t create a forum to sue IOs, or even a way to work around the extensive privileges and immunities of IOs, they do set new baselines with regards to the consequences of wrongful actions, including the rules of attribution and the standard for reparations (“full” reparations in the words of the Draft Articles). Like the State Responsibility articles before them however, only states and IO have the right of invocation under Article 43. The extension of responsibility to IOs might be seen as a step in the right direction in the broader movement of “accountability”, but the fact that individuals are subordinated to a system limited to states and IOs dates (and limits) them considerably.

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.

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.

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.

The 6th Committee of the GA recently finished its first reading of the 66 draft Articles on the Responsibility of International Organizations (“RIO”). The draft articles create rules on when international organizations can be held responsible for internationally wrongful acts under international law. In other words, when can international organizations (“IOs”) sue or be sued? The ICJ’s 1949 Reparation for Injuries case set the ball in motion, when it found that the United Nations has legal personality, and hence the right to bring a claim. Since then, the spectacular collapse of the International Tin Council in the 1980s, the dramatic expansion of multilateral activities by IOs generally, and the 2007 Behrami & Saramati cases before the ECHR have made IO responsibility a question of concrete importance.
The ILC’s efforts to develop draft articles on the Responsibility of International Organizations have been the subject of much critical commentary. See for example the 2006 speech by Jose Alvarez before the Canadian Council on International Law.
Although the draft articles on RIO are modeled on the state responsibility articles, it is nonetheless clear that IOs are more complicated. IOs are not unitary actors like states, instead they are created by states to perform a wide range of functions. Moreover, unlike the field of state responsibility where there was a great deal of practice to draw on, there is very little practice with regards to IOs. Responsibility requires a determination as to whether and in which circumstances the organization can be held responsible, and whose acts qualify as wrongful acts of the organization. Moreover, it presents sensitive questions about joint liability between states and IOs. The ILC’s helpful analytical guide containing the development of the RIO articles, and commentary by states and IOs can be found here.
Let me start today with a threshold matter. What is an international organization? Art. 2 of the draft articles defines “international organization” as “an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.” This definition is broad, in comparison with Art. 2 of the Vienna Convention of 1986 on the Law of Treaties between States and International Organizations, which defines an international organization simply as “an intergovernmental organization.”
Some IOs have near universal membership, others have only a regional focus. Some IOs have state members, others have members that are non-state entities. Some IOs have powerful members that exercise considerable clout on that IO’s decision making, others do not. Finally, some IOs, like the EU are granted broad reaching constitutional powers, other IOs, in accordance with their constitutive instruments, have a much narrower range of functions. Given the range of international organizations in existence, is it possible to create a regime that applies to all IOs? The ILC clearly thinks so, and recent debates indicate that states are coming around to this position, although many IOs may not be. Nonetheless, the wide variations in types of IOs will continue to be problematic in particular debates on attribution, counter measures, and what constitutes an agent or organ of the IO.
Greg Fox from Wayne State and I will post commentaries on key areas of the debate this week.

Tom Farer’s ‘Latin Americanization’ thesis deserves comment; i.e. that recent anti-terrorism / Guantanamo  measures by the Bush administration are comparable to tactics that certain authoritarian Latin American regimes undertook, in that (i) states of emergency were proclaimed in conjunction with incursions on human rights, and that (ii) neither judicial nor congressional oversight effectively limited the executive’s power.

The analogy between the current US administration’s behavior towards terrorism and the techniques of some Latin American governments is an interesting one.  As Farer notes, an important difference is that the Latin American governments that came under scrutiny by the Inter American Human Rights mechanisms had proclaimed states of emergency, whereas the US government did not formally suspend human rights or habeas corpus guarantees in the name of the safety of the nation…