Abuse of the Members: Questions concerning Draft Article 16 of the Draft Articles on Responsibility of International Organizations

2010 ◽  
Vol 7 (1) ◽  
pp. 35-48 ◽  
Author(s):  
Niels Blokker
Keyword(s):  
Security Council ◽  
International Organizations ◽  
Use Of Force ◽  
International Organization ◽  
Member States ◽  
Draft Article ◽  
The Future ◽  
International Responsibility

AbstractThis contribution discusses Article 16 (“Decisions, authorizations and recommendations addressed to member states and international organizations”) of the ILC draft articles on responsibility of international organizations, completed in first reading in 2009. According to Article 16, international organizations may incur international responsibility for their binding and non-binding decisions if certain conditions are fulfilled. The main rationale of this provision is that an international organization may not require its members to perform acts which the organization itself may not perform under its own obligations. The need to include this provision in the draft articles is not questioned. Five specific issues are addressed. The provision concerning authorizations may in the future turn out to be the most troublesome, in particular in relation to Security Council authorizations for the use of force.

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.

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.

Conclusion

2021 ◽  
pp. 208-210
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
International Organization ◽  
Legal Systems ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law

This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.

scholarly journals The relationship between the sovereignty of member states and the supernationality of international organizations

2020 ◽  
pp. 349-353
Author(s):  
Olga Shpakovych ◽  
Sofia Penkovska
Keyword(s):  
International Organizations ◽  
The State ◽  
International Organization ◽  
State Sovereignty ◽  
Member States ◽  
The Relationship ◽  
Theoretical Results ◽  
The Eu

The article presents the result of theoretical and practical study of the relationship between state sovereignty and supranationalityof international organizations. In particular, it is determined that the phenomenon of supranationality of international organizations isderived from state sovereignty and acts as its external law. It has been shown that, in view of this, supranationality is limited becauseit arises through the exercise of sovereignty by states, and, accordingly, is limited by the amount of state sovereignty exercised by states.The relevant mechanism has also been studied on the example of the functioning of the European Union.Regarding the theoretical results, the following should be noted. First, it was proved that despite the different approaches of scho -lars to the understanding of supranationality, definitions of this concept and the separation of its features (properties), in each case,supranationality is a direct realization of state sovereignty. At the same time, the realization of state sovereignty in relation to such pro -perties of international organizations as supranational is primary, and supranationality in this case is derivative. In addition, the phenomenonof supranationality of international organizations due to the fact that it is derived is limited, because supranationality arisesthrough the exercise of sovereignty by states, and, accordingly, is limited by the amount of state sovereignty exercised by states. Thatis why when analyzing the relationship between the supranationality of international organizations and state sovereignty, one cannotconsider the priority of one of the two, because supranationality is in essence a manifestation of state sovereignty.Regarding the practical results, the author considers it appropriate to emphasize that both the regional international organization –the EU was studied, and, at the same time, it was proved that all theoretical provisions were reflected in practice, in particular, envisagedfunctions, goals and the tasks of the studied international organizations are limited in scope by the manifestation of sovereignty shownby states, similar to the regulations issued by organizations. Another indication that the state can exercise its sovereignty in any case isthat there is an effective and transparent procedure for leaving these organizations

7 Security Council authorization of member states to use force

2018 ◽  
Author(s):  
Gray Christine
Keyword(s):  
Security Council ◽  
Use Of Force ◽  
Legal Basis ◽  
Member States ◽  
Enforcement Action ◽  
Original Scheme

This chapter discusses Security Council authorization of member states to use force. There is now general agreement that the original scheme of Chapter VII of the UN Charter is not workable, and that the UN itself will not conduct enforcement operations. Instead, the Security Council may authorize member states to take enforcement action, even if the precise legal basis for this in the Charter is not clear. The Security Council has not again authorized member states to use force against an aggressor state in the same way as it did against Iraq after its invasion of Kuwait, but it has authorized action for a variety of other purposes. This chapter then discusses the controversy over claims of implied or revived authorization of the use of force by the Security Council.

Outsourcing the Use of Force

2016 ◽  
Author(s):  
Niels Blokker
Keyword(s):  
Decision Making ◽  
International Relations ◽  
Security Council ◽  
International Organizations ◽  
Use Of Force ◽  
Time Limit ◽  
Un Security Council ◽  
Operational Decision Making

This chapter discusses developments in operations authorized by the UN Security Council in the context of the rules governing use of force in international relations. It considers three elements surrounding criticism of the carte blanche nature of Resolution 678 authorizing the use of ‘all necessary means’ against Iraq following its invasion of Kuwait. First, the authorization has no time limit; secondly, it has an extremely broad mandate; thirdly, coalition forces were asked ‘to keep the Security Council regularly informed’. The chapter examines whether the trend towards more Security Council control of authorized operations has persisted. It analyses elements of the authorization resolutions adopted by the Council between 2000 and 2012 and their implications for potential UN responsibility. It argues that operational decision-making is outsourced to implementing states or international organizations but that there are cases when the UN may be held responsible for wrongful acts committed by the authorized operation.

The Genesis of the Veto

1947 ◽  
Vol 1 (1) ◽  
pp. 33-42 ◽  
Author(s):  
Dwight E. Lee
Keyword(s):  
United Nations ◽  
Security Council ◽  
Use Of Force ◽  
The Body ◽  
International Organization ◽  
The Other ◽  
Legislative Body ◽  
Simple Rules ◽  
International Body ◽  
Liberum Veto

Finding a satisfactory voting formula for an international organization of “sovereign” states, such as the Security Council of the United Nations, is a different task from establishing rules of voting for a national legislative body. In an international body both the character of the work to be done and the composition of the body are governing factors. If the body has to make decisions involving the use of force, full respect for sovereignty by requiring unanimity permits the exercise of a liberum veto that blocks action. Simple rules of “democratic” usage by which the members are assumed to be equal in strength, though in fact they are not, cannot be applied, for this might pit weak numerical majorities against preponderantly powerful minorities. On the other hand, frankly to acknowledge the overweening might of a few and to establish a “dictatorship” by giving the most powerful members exclusive voting privileges is politically unacceptable and probably impracticable in our times. Therefore, some compromise has to be found, with reference to the duties and responsibilities of the organization and its composition, that will strike a workable balance between the inequalities of the members and a decent respect for the views and interests of the less powerful.

Litigating Member State Responsibility

2015 ◽  
Vol 12 (2) ◽  
pp. 468-483 ◽  
Author(s):  
Paolo Palchetti
Keyword(s):  
Member State ◽  
Present Article ◽  
International Organizations ◽  
International Organization ◽  
Third Party ◽  
State Responsibility ◽  
International Tribunal ◽  
Member States

It is not rare that, in a dispute brought before an international tribunal against a member State of an organization, that State, by relying on the Monetary Gold principle, asks the tribunal to refrain from exercising its jurisdiction, arguing that this would lead to determining the responsibility of the organization. Such an objection raises the question of whether the Monetary Gold principle, which so far has been applied in cases when the absent third party was a State, also applies to absent organizations. The present article intends to study the question of the applicability of the Monetary Gold principle in relation to situations in which member States can be held responsible for the conduct of the organization. While in principle there are situations in which the determination of the responsibility of the organization appears to be a precondition to the determination of the responsibility of the member State, the fact that an international tribunal does not have jurisdiction over international organizations should lead one to exclude that the Monetary Gold principle applies at all to situations in which the absent third party is an international organization.

3 Institutional Structure and the Position of Members, 3.2 Prosecutor v Duško Tadić , Decision on the defence motion for interlocutory appeal on jurisdiction, IT-94-1-AR72, Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, 2 October 1995

2016 ◽  
Author(s):  
Dekker Ige F ◽  
Wessel Ramses A
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Organizations ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Institutional Structure ◽  
United Nations Security Council ◽  
International Organization ◽  
Former Yugoslavia ◽  
Specific Question

The principle of the attribution, or conferral, of powers is undisputed and lies at the heart of debates on the competences of international organizations. A more specific question concerns whether and to which extent organs of an international organization may establish other organs. The importance of the case analysed in the present Chapter, is that it reveals that the competence of an organ to decide on it own competence may be far-reaching. The question arose whether the United Nations Security Council had not exceeded its powers by establishing the International Criminal Tribunal for the Former Yugoslavia in the year 1993.

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