Amsterdam Center for International Law Introduction to the symposium on Responsibility of International Organizations and of (Member) states: Attributed or Direct Responsibility or Both?

2010 ◽  
Vol 7 (1) ◽  
pp. 9-33 ◽  
Author(s):  
Pieter Jan Kuijper
Keyword(s):  
International Law ◽  
International Organizations ◽  
Shared Responsibility ◽  
International Organization ◽  
State Responsibility ◽  
Member States ◽  
Introductory Article ◽  
Classical Conception

AbstractThis is the introduction to three articles that resulted from the Symposium on Responsibility of International Organizations and of (Member) States organized by the Amsterdam Center for International Law (ACIL) under direction of Professors André Nollkaemper and Pieter Jan Kuijper in April 2009. The Symposium concentrated on those articles of the ILC draft articles on the Responsibility of International Organizations which are concerned with the responsibility of States for the unlawful acts of International Organizations as well as with the responsibility of International Organizations for unlawful acts of States, and in particular Member States. This introductory article seeks to place the articles relating to these issues in the context of the draft articles as a whole and of their predecessors, the draft articles on State Responsibility. Moreover, since the articles in question are based on the notion of a directly incurred responsibility on the part of the international organization or State concerned, rather than the classical conception of responsibility through attribution, they are also analyzed in the light of these two conceptions of responsibility. The issue of shared responsibility deserves special attention in this respect.

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.

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.

ASEAN asWayang Kulit: A Critique of the Constitutional, Extra-constitutional, and Practical Fetters of ASEAN

2019 ◽  
Vol 9 (2) ◽  
pp. 275-297 ◽  
Author(s):  
Jose Duke BAGULAYA
Keyword(s):  
International Law ◽  
International Organizations ◽  
Structural Control ◽  
World Politics ◽  
International Organization ◽  
Control Mechanisms ◽  
Member States ◽  
Legal Personality ◽  
Rules Of Procedure ◽  
Wayang Kulit

AbstractInternational organizations have been described metaphorically as the Frankenstein of international law. They are created by states and yet more often than not they assume powers that humble their creators. This paper presents a different metaphor to describe the Association of Southeast Asian Nations [ASEAN]. Created in 2007, ASEAN, it is argued, resembles the fetteredwayang kulitin Indonesian theatre. It is an international organization which is controlled by its Member States in various ways. This paper analyzes three forms of ASEAN's fetters: constitutional, extra-constitutional, and practical. Constitutional fetters refer to the structural control embedded in the ASEAN Charter. Extra-constitutional fetters refer to rules of procedure that close the openness of the constitutional text. Finally, practical fetters refer to the ways the Member States limit ASEAN's legal personality in practice. Through these control mechanisms, ASEAN has so far acted on the stage of world politics according to the narrative of its puppet masters.

Abuse of the Legal Personality of International Organizations and the Responsibility of Member States

2007 ◽  
Vol 4 (1) ◽  
pp. 91-119 ◽  
Author(s):  
Jean d'Aspremont
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Decision Making Process ◽  
Member States ◽  
Legal Personality ◽  
International Obligations ◽  
International Legal Personality

AbstractIt is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international legal personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international legal personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the legal personality of an international organization, which can bolster the contemporary move away from international institutionalism.

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.

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.

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

International Organizations: Then and Now

2006 ◽  
Vol 100 (2) ◽  
pp. 324-347 ◽  
Author(s):  
José E. Alvarez
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
International Organizations ◽  
Turn Of The Century ◽  
Ancient World ◽  
International Organization ◽  
Limited Participation ◽  
Member States ◽  
Multilateral Diplomacy

International organizations (or IOs)—intergovernmental entities established by treaty, usually composed of permanent secretariats, plenary assemblies involving all member states, and executive organs with more limited participation—are a twentieth-century phenomenon having little in common with earlier forms of institutionalized cooperation, including those in the ancient world. The story of how, shortly after the turn of the last century, the Euro-American lawyers that dominated the field of international law sought to transcend the chaos of war by “moving to institutions” has been told elsewhere and needs no repeating here. David Kennedy, Martti Koskenniemi, and David Bederman, among others, have described the disparate individuals, separated by nationality, juridical philosophy, and competing “idealist”/“realist” schools of thought, who nevertheless shared a messianic, quasi-religious, and coherent “internationalist sensibility” that sought to institutionalize multilateral diplomacy with a view to promoting civilization and progress. Kennedy locates the move to international organization in turn-of-the-century reformist aspirations for parliamentary, administrative, and judicial mechanisms that, in the Victorian language of the day, would convert “passion into reason.” By the time this Journal was established, the Congress of Vienna’s concert system had provided a model for an incipient (albeit only periodic) pseudo-parliament; diverse public administrative unions and river commissions suggested the possibilities for international administration and even the interstate pooling of funds; and the Permanent Court of Arbitration presaged an international judiciary.

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