Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility

2013 ◽  
Vol 26 (3) ◽  
pp. 615-642 ◽  
Author(s):  
SIMON OLLESON
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Customary International Law ◽  
Domestic Courts ◽  
International Responsibility ◽  
International Law Commission ◽  
Further Development ◽  
Law Commission ◽  
Point Of Reference

AbstractThe rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.

International Responsibility

2021 ◽  
pp. 176-207
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
International Law Commission ◽  
Final Consequence ◽  
Law Commission

The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.

The Allocation of International Responsibility between International Organizations and Their Member States: A Case of Indirect Responsibility?

2020 ◽  
Vol 31 (2) ◽  
pp. 755-770
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Review Essay ◽  
International Organization ◽  
Extensive Discussion ◽  
Member States ◽  
International Responsibility ◽  
Insightful Analysis ◽  
International Law Commission ◽  
Law Commission

Abstract While the responsibility of international organizations and their member states has been on the agenda of courts and scholars for decades, the adoption of the Articles on the Responsibility of International Organizations (ARIO) by the International Law Commission in 2011 has given new impetus to the debate. Nikolaos Voulgaris’ Allocating International Responsibility between Member States and International Organizations is one of the few general books on the topic that post-dates the adoption of the ARIO. Despite its broad title, however, the focus of the book is rather narrow: it concentrates on the responsibility of an international organization or a state in connection with the act of a/another state or international organization, which Voulgaris describes as ‘indirect responsibility’. Considering the book’s extensive discussion of the function and nature of international responsibility, this review essay first submits that the book’s actual aim is a rethinking of indirect responsibility. Second, it examines Voulgaris’ reconceptualization of the pertinent provisions on indirect responsibility in terms of what he calls the ‘complicity’ and ‘derivative responsibility’ models. This review essay concludes that the reader who expects detailed guidance on the allocation of responsibility between international organizations and their member states will be left wanting. Instead, the interaction between international organizations and their member states serves as an illustration for the book’s insightful analysis of the under-theorized provisions on international responsibility in connection with the act of another.

The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations An Appraisal of the ‘Copy-Paste Approach’

2012 ◽  
Vol 9 (1) ◽  
pp. 53-66 ◽  
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Reasoning ◽  
International Organization ◽  
Considerable Uncertainty ◽  
Legal Rules ◽  
International Responsibility ◽  
International Law Commission ◽  
Law Commission

In view of the adoption and future reception of the Articles on the Responsibility of International Organizations (ARIO) on second reading, this contribution seeks to offer some reflections on the ‘copy-paste narrative’ that has characterized the process of drafting the ARIO by the International Law Commission (ILC). On the basis of a brief introduction to the concept of analogies in international law, it is explained that the use of analogies is not to be equated with a mechanical exercise of copy-pasting legal rules; rather, it constitutes a method of legal reasoning based on a principled assessment of relevant similarities and differences. By comparing the ARIO with the ILC’s Articles on State Responsibility (ASR), it will be demonstrated that the ARIO actually do not follow the example of the ASR in many key provisions. Interestingly, much of the critique of the ARIO has been directed against these dissimilar provisions, especially when they concern the relations between an international organization and its member States. Since this critique is mainly driven by considerable uncertainty as to the determination of the responsible actor(s), it will be suggested that the ILC should have used closer analogies with the ASR in order to enhance the overall coherence of the law of international responsibility. This is because, as argued in conclusion, the corporate complexity of international organizations and States may necessitate a unified set of Articles on International Responsibility.

New Kids on the Block

2019 ◽  
Vol 21 (3-4) ◽  
pp. 325-343 ◽  
Author(s):  
Magdalena Pacholska
Keyword(s):  
International Law ◽  
International Organizations ◽  
Analytical Framework ◽  
Customary International Law ◽  
The Creation ◽  
International Law Commission ◽  
Law Commission

Abstract One of the most contentious issues of the “Identification of Customary International Law”, a topic the International Law Commission has recently finalized its work on, concerns the extent to which international organizations (IOs) play a part in the creation of customary norms. Conclusion 4(2) of the 2018 draft provides that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” The official commentary recognizes two such cases: i) when States “have transferred exclusive competences to the [IOs]”, and ii) when States “have conferred competences upon the [IOs] that are functionally equivalent to powers exercised by States.” After questioning the utility of the Commission’s approach, this contribution outlines an alternative analytical framework for IOs’ participation in the creation of customary rules grounded in the principle of speciality and premised on the ratione personae applicability of the rule to be identified.

Rethinking Indirect Responsibility

2014 ◽  
Vol 11 (1) ◽  
pp. 5-52
Author(s):  
Nikolaos Voulgaris
Keyword(s):  
International Law ◽  
International Organizations ◽  
Contextual Approach ◽  
Normative Analysis ◽  
International Responsibility ◽  
To Come ◽  
International Law Commission ◽  
First Time ◽  
Included Article ◽  
Law Commission

In its Draft Articles on the Responsibility of International Organizations, the International Law Commission included Article 17 in order to regulate instances in which binding decisions and authorizations were made by international organizations that bound or applied in respect of their member States. Given that courts have struggled in vain to come up with a uniform approach applicable in such situations, one would expect that Article 17 would have been a cause for celebration. Commentators, however, lamented the inclusion of the provision, arguing that it cannot function effectively because it forms part of the problematic Chapter IV that regulates scenarios of indirect responsibility. The article rejects this approach. For the first time, it offers an integrated normative analysis of all Chapter IV provisions, and calls on the reader to rethink indirect responsibility in a way that advances and promotes coherence in the law of international responsibility. The paper adopts a contextual approach, and suggests that this understanding of Article 17 offers courts a twofold opportunity: first, the ability to effectively tackle cases that have troubled them to date; and second, to initiate a change in the way in which States and international organizations interact in the international arena.

scholarly journals The Dual Legality of the Rules of International Organizations

2017 ◽  
Vol 14 (1) ◽  
pp. 87-119 ◽  
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
Security Council ◽  
International Organizations ◽  
Legal System ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

This paper examines the legal nature of the ‘rules of international organizations’ as defined by the International Law Commission in its works on the law of treaties and on international responsibility. Part 1 introduces the debate with an example concerning the nature of un Security Council anti-terrorism resolutions. Part 2 challenges the four theories of the rules envisaged by scholarship. Part 3 is an attempt to examine the characteristics of the legal system produced by international organizations taking advantage of analytical jurisprudence, developing a theory of their legal nature defined as ‘dual legality’. Part 4 concludes by appraising the effects of the dual legality looking at the law of treaties, international responsibility and invalidity for ultra vires acts.

scholarly journals Identifying the Rules for Identifying Customary International Law

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 169-173 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
United Kingdom ◽  
Nongovernmental Organizations ◽  
International Law ◽  
International Organizations ◽  
Special Rapporteur ◽  
Customary International Law ◽  
International Law Commission ◽  
Law Commission

The International Law Commission (ILC) decided in 2012 to add to its agenda a new topic on the “identification of customary international law” and to appoint Sir Michael Wood (United Kingdom) as special rapporteur. That project has reached an important point, with a series of Draft Conclusions having been cleared through the Commission’s Drafting Committee, and ready for the Commission’s provisional approval (together with commentaries) in 2015. As such, now is a propitious time for governments, international organizations, nongovernmental organizations, scholars, and others to weigh in on the merits of these Draft Conclusions, and additional ones that will be developed in 2015–16.

scholarly journals Identifying International Organizations’ Contributions to Custom

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 174-178 ◽  
Author(s):  
David M. DeBartolo
Keyword(s):  
International Law ◽  
International Organizations ◽  
Special Rapporteur ◽  
Intergovernmental Organization ◽  
Customary International Law ◽  
Contentious Issue ◽  
State Practice ◽  
International Law Commission ◽  
Past Summer ◽  
Law Commission

It is widely acknowledged that international organizations (IOs) indirectly affect customary international law by catalyzing and focusing State practice. But next year the International Law Commission and Michael Wood, its Special Rapporteur on the Identification of Customary International Law, are primed to address a more contentious issue: when and how IOs can directly contribute, like States, to custom.This past summer the Commission’s Drafting Committee provisionally adopted a draft conclusion stating that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” Based on Wood’s Second Report dated May 2014, three topics merit particular attention in the year ahead: 1) distinguishing State practice from IO practice, 2) scrutinizing potentially relevant types of IO practice, and 3) considering types of cases in which such IO practice might contribute to custom. (While the Drafting Committee declined to include definitions in its draft conclusions, this article defines “IO” as Wood did in his Second Report: “an intergovernmental organization.”)

Responsibility of the United Nations for Wrongful Acts Occurred in the Framework of Authorized Operations in Light of the Draft Articles on the Responsibility of International Organizations (dario)

2014 ◽  
Vol 18 (1) ◽  
pp. 109-151
Author(s):  
Frédérique Lozanorios
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
The Other ◽  
European Court ◽  
Chain Of Command ◽  
The One ◽  
International Law Commission ◽  
Law Commission

When the Security Council authorizes a State or an international organization to use force, it entrusts it with authority over the chain of command of the operation. That is why the un has always declined to assume responsibility for conduct occurring in the context such operations. While this position is widely supported by practice, and by the 2011 Draft Articles on the Responsibility of International Organizations (dario) of the International Law Commission (ilc), certain cases brought before the European Court of Human Rights (ECtHR) such as Behrami/Saramati have challenged this principle. These cases had the merit of bringing to the fore uncertainties about the rules of responsibility applicable to complex schemes of peacekeeping. This study aims to address the question: in the light of the dario, to what extent could responsibility be attributed to the un for conduct occurred in the framework of authorized operations, and what kind of responsibility would that be? First, it argues that no basis can be found in the principles of independent responsibility to justify the attribution of wrongful conduct committed on the occasion of authorized operations to the un, unless in exceptional factual circumstances. Second, it contends that indirect responsibility could be an appropriate way to apprehend the specific relationships established between the un on the one hand and the operations it has authorized on the other hand.

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