Responsibility of a Member state of an International Organization: Where Will It End? Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations

2010 ◽  
Vol 7 (1) ◽  
pp. 49-61 ◽  
Author(s):  
Esa Paasivirta
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Individual Member ◽  
Individual Member State ◽  
General Rules ◽  
The Right ◽  
International Law Commission ◽  
The Eu

AbstractThe paper addresses the issue of possible responsibility of a member state for acts of an international organization of which it is a member. This particular issue forms part of the on-going work of the International Law Commission of establishing rules for the responsibility of international organizations. The particular challenge is posed by possible “responsibility gaps”, i.e. situations where a state might avoid compliance with its own obligations by prompting the organization of which it is a member to act instead. The paper compares the ILC approach, approaching the issue by way of trying to establish general rules of responsibility (“secondary rules”) and the practice of the EU, which has addressed the issue by tailor-made solutions in the context of specific treaties (“primary rules”). The latter approach is more flexible as it allows individual solutions pertinent to particular circumstances and treaty regimes so as to ensure that either the organization itself or its member state is responsible, depending whichever is genuinely responsible. The paper concludes that the ILC work is progressing in the right direction as it narrows down the possibilities where a member state can be held responsible to cover only situations bordering abuse, rather than more open-ended standards for individual member state responsibility, which can open the door for unpredictable results.

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

2011 ◽  
Vol 8 (2) ◽  
pp. 291-347 ◽  
Author(s):  
Odette Murray
Keyword(s):  
Decision Making ◽  
Member State ◽  
International Law ◽  
International Organizations ◽  
Good Faith ◽  
International Organization ◽  
Member States ◽  
Draft Article ◽  
Legal Limit ◽  
Primary Rule

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

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.

11. Internal Market: Persons

2020 ◽  
pp. 256-281
Author(s):  
Robert Schütze
Keyword(s):  
Member State ◽  
Maastricht Treaty ◽  
Free Movement ◽  
Symbiotic Relationship ◽  
Complex Relationship ◽  
General Rules ◽  
Free Movement Of Persons ◽  
The Right ◽  
State Restrictions ◽  
The Eu

This chapter highlights the complex constitutional arrangements governing the free movement of persons. The EU Treaties distinguished between two classes of economic migrants, namely, employed and self-employed persons; and today's Treaty title dealing with persons still addresses ‘Workers’ and the ‘Right of Establishment’ in two separate chapters. With the 1992 Maastricht Treaty, the two special chapters on persons were complemented by the general rules on EU citizenship. Unsurprisingly, there has been a complex relationship between the two specific sources of free movement rights and the EU citizenship provisions. Their symbiotic relationship is particularly embodied in the ‘Citizenship Directive’. The chapter then considers the possible justifications for Member State restrictions on the free movement of persons.

EU Status In Other International Organizations

2018 ◽  
Author(s):  
Geert De Baere
Keyword(s):  
Decision Making ◽  
European Union ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
The European Union ◽  
Decision Making Processes ◽  
The Eu ◽  
Federal Structure

The present chapter considers the position of the European Union in other international organizations. It is based on the premise that the Union, while arguably also a federal or quasi-federal structure, is legally still itself an international organization. From the perspective of international law, that explains at least partly the complexities involved in an international organization such as the EU acquiring a status in—let alone membership of—another international organization. The term ‘status’ or ‘position’ is understood here as the influence the Union can exercise, either formally or informally, in decision-making processes in other international organizations. As an ever-increasing number of decisions having an impact on the Union’s policies originate in international organizations, its position in such fora matters.

THE PRACTICE OF APPLYING THE REGULATIONS OF THE SUSPENSION OF RIGHTS OF A MEMBER STATE SHOWED ON THE EXAMPLE OF SELECTED INTERNATIONAL ORGANIZATIONS

2020 ◽  
Vol 7 (1) ◽  
pp. 375-392
Author(s):  
Sabina Kubas
Keyword(s):  
Member State ◽  
International Organizations ◽  
Voting Rights ◽  
International Organization ◽  
Practical Application ◽  
Regional Organizations ◽  
The Right

The suspension of rights in an international organization constitutes a sanction imposed on a Member State for its conduct contrary to the founding act. Each organization in its statutory provisions defines these behaviors, sometimes in a general way, otherwise - in more detail. It should be emphasized, however, that practical application of the regulations in both universal and regional organizations is helpful in this case. The consequence of initiating the suspension procedure is maintaining the current membership in the same form or introducing restrictions in this respect. These, in turn, may relate to the loss of voting rights, which can only apply to the organization's plenary body (e.g. the UN) or all main bodies, committees, commissions and subsidiary bodies (e.g. UNESCO). Suspension of rights may also apply to the right to services (WHO) or the right of representation (RE). It should also be borne in mind that suspension of rights applies only to some of them and lasts for a certain period.

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.

Constitutionalism

2021 ◽  
pp. 33-48
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Member States ◽  
The Law

Constitutionalism emerged as a reaction to functionalism to rebut the international nature of the relation between organizations and member states: member states are organs of the organization when they act in the fulfilment of its purposes; the law created by international organizations is purely internal law; the institutional veil is characterized by an impermeable opacity; the autonomy of the organization is maximal; the conduct of a member state acting in the institutional forum is not relevant as a matter of international law. This chapter describes the historical roots of this conceptualization and posits why under this perspective the rules of the organizations are internal law of each particular organization. Afterwards, it describes the flaws of this theory discussing the problems arising in terms of the principle of lex specialis and concerning the attribution of conduct to an international organization.

Intersections between Diplomatic Immunities and the Immunities of International Organizations

2017 ◽  
Author(s):  
Alison Duxbury
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
Legal Regime ◽  
The Supreme Court ◽  
Diplomatic Immunity ◽  
The Right ◽  
International Law Commission ◽  
The Impact ◽  
Right Of Access

This chapter examines the immunities of international organizations and the impact of the VCDR on this legal regime. While the VCDR is not directly applicable in this context, consideration of the immunities of officials of international organizations and diplomats has intersected in various contexts. These intersections are apparent during the discussions surrounding the drafting of instruments dealing with international immunities (including in the International Law Commission) and also in arguments concerning the application of such immunities in courts (for example, the Supreme Court of New York’s consideration of Strauss-Kahn’s immunity claim). This chapter explores the legal framework that applies in such cases and also analyses the differences between the two systems. Finally, it examines cases where arguments relating to the right of access to the courts, first considered in the context of the immunities of international organizations, have been applied to State and diplomatic immunity.

scholarly journals THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO THE RESPONSIBILITY OF MEMBER STATES IN CONNECTION WITH ACTS OF INTERNATIONAL ORGANIZATIONS

2011 ◽  
Vol 60 (4) ◽  
pp. 997-1016 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
General Rule ◽  
International Organization ◽  
Member States ◽  
Legal Personality ◽  
European Court ◽  
Droit International ◽  
International Legal Personality

It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.4

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.

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