Member States’ Due Diligence Obligations to Supervise International Organisations

2020 ◽  
pp. 59-74
Author(s):  
Kristina Daugirdas
Keyword(s):  
International Law ◽  
International Organizations ◽  
Third Parties ◽  
Due Diligence ◽  
International Organisations ◽  
Member States ◽  
Distinct Category ◽  
Private Actors ◽  
International Law Commission ◽  
Law Commission

There are two reasons to consider member states’ obligations to supervise international organisations as a distinct category of due diligence obligations. First, due diligence obligations typically require states to regulate third parties in some way. But it is harder for states to regulate international organisations than other private actors because international law protects the autonomy of international organisations. Second, such due diligence obligations merit attention because they may compensate for the dearth of mechanisms to hold international organisations accountable when they cause harm. This chapter canvasses member states’ existing obligations vis-à-vis international organisations, and argues in particular that the International Law Commission (ILC) missed an opportunity to frame broader obligations when drafting the Articles on the Responsibility of International Organizations (the ARIO). The chapter closes by making the normative case for establishing a due diligence obligation on member states to ensure that international organisations do not abuse their immunities.

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.

Due diligence as a secondary rule of general international law

2021 ◽  
pp. 1-30
Author(s):  
Richard Mackenzie-Gray Scott
Keyword(s):  
International Law ◽  
Due Diligence ◽  
Legal Practice ◽  
Formed Part ◽  
International Law Commission ◽  
Domestic Law ◽  
Secondary Rule ◽  
Law Making ◽  
Law Commission ◽  
Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

The Fifty-Sixth Session of the International Law Commission

2005 ◽  
Vol 99 (1) ◽  
pp. 211-221 ◽  
Author(s):  
Michael J. Matheson
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflict ◽  
Diplomatic Protection ◽  
Sixth Session ◽  
International Liability ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.

The Work of the International Law Commission, 2007–2011: Progress and Prospects

2012 ◽  
Vol 106 (2) ◽  
pp. 322-340 ◽  
Author(s):  
Donald McRae
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflicts ◽  
General Assembly ◽  
Un General Assembly ◽  
The Law ◽  
International Law Commission ◽  
Transboundary Aquifers ◽  
Law Commission ◽  
The Way

On November 17, 2011, the UN General Assembly elected the members of the International Law Commission for the next five years. In the course of the quinquennium that was completed in August 2011 with the end of the sixty-third session, the Commission concluded four major topics on its agenda: the law of transboundary aquifers, the responsibility of international organizations, the effect of armed conflicts on treaties, and reservations to treaties. It was by any standard a substantial output. The beginning of a new quinquennium now provides an opportunity to assess what the Commission has achieved, to consider the way it operates, and to reflect on what lies ahead for it.

Protecting the Environment During and After Armed Conflict, the International Law Commission and an Overdue Due Diligence Duty for Corporations

2021 ◽  
Vol 12 (2) ◽  
pp. 314-343
Author(s):  
Alexandra Wormald
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Due Diligence ◽  
Stakeholder Consultation ◽  
Global Consensus ◽  
International Law Commission ◽  
Law Commission

Abstract Recent years have seen a rising global consensus on the need to ensure appropriate protections for the environment during and after armed conflict. In this context, the International Law Commission provisionally adopted 28 draft principles on the protection of the environment in relation to armed conflicts in July 2019. With stakeholder consultation having concluded in June 2021, this article investigates what practical impacts the corporate due diligence and liability provisions in the draft principles are likely to have on the protection of the environment during and after armed conflict, should the principles be implemented as currently drafted.

The Dual Legal Nature in Practice

2021 ◽  
pp. 108-140
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Organizations ◽  
Third Parties ◽  
International Organization ◽  
Customary Law ◽  
Judicial Decisions ◽  
Legal Nature ◽  
Definition Of ◽  
Legal Character ◽  
International Law Commission ◽  
Law Commission

This chapter describes the dual legal character of international organizations as discussed in practice and scholarship. It reviews every act mentioned by the International Law Commission in its definition of rules of international organizations: ‘the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization’. Moreover, it also includes agreements with third parties and judicial decisions, which the Commission mentioned only in the commentary to the articles on the responsibility of international organizations. Additionally, it considers general principles and customary law, not mentioned by the Commission but rules of international organizations nonetheless. The purpose is to present a variety of examples in which the dual legal character is either useful to shed new light on traditional debates or already acknowledged by practice and scholarship.

Functionalism According to Paul Reuter: Playing a Lone Hand

2020 ◽  
Vol 31 (2) ◽  
pp. 543-564
Author(s):  
Evelyne Lagrange
Keyword(s):  
International Law ◽  
International Organizations ◽  
Policy Makers ◽  
Public International Law ◽  
Respective Role ◽  
International Law Commission ◽  
Law Commission

Abstract The true designer of the High Authority of the European Coal and Steel Community (ECSC) might have been a French professor of international law, Paul Reuter (1911–1990). Then working in the shadow of Jean Monnet, he became one of the leading experts in public international law in France from the late 1950s on and also served on the International Law Commission. It was not his style to develop a fully-fledged theory of functionalism, but he paid the utmost attention to the ‘functions’ of international organizations. While demonstrating a certain reluctance towards some consequences associated with functionalism, he expressed no disdain for a lite version of ‘constitutionalism’. Discretely, Reuter outlined a balancing between ‘functionalism’ and ‘constitutionalism’. He more insistently elaborated on the respective role of experts and policy-makers.

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