scholarly journals The Rules of International Organizations and the Law of International Responsibility

2011 ◽  
Vol 8 (2) ◽  
pp. 397-482 ◽  
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Central Place ◽  
International Organization ◽  
Clear Cut ◽  
International Obligation ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
The Moment

AbstractThis paper discusses the role of the so-called 'rules of the organization' in the draft Articles on the Responsibility of International Organizations (ARIO), as adopted by the International Law Commission (ILC) on second reading in 2011. Although the rules of the organization occupy a central place in the ARIO, the ILC has decided not to take a “clear-cut view” on their legal nature as either international law or internal law of the organization. This paper argues that the ILC's indecision has left the ARIO with a fluctuating scope of application concerning various provisions such as the attribution of conduct, the breach of an international obligation, the obligation to make reparation, and countermeasures against an international organization. The term of art 'rules of the organization' was developed by the ILC in its work on the law of treaties but has rarely been addressed in legal scholarship. Part 1 therefore first examines the legal nature of the different components of the so-called 'rules of the organization': the constituent instruments, the acts, and the established practice of the organization. While the constituent instruments are contracts between States at the moment of the creation of an international organization, it will be contended that they also operate as constitutions during the life of the organization, giving it the autonomy to create internal law in force between the subjects of its legal order, including its member States. In analysing the ARIO on second reading, Part 2 accordingly suggests reconceiving the rules of the organization as 'internal law' of the organization as long as it functions effectively, so as to appropriately reflect its constitutional autonomy for purposes of international responsibility.

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.

The Concept of an International Organization in International Law

2021 ◽  
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
International Organization ◽  
Legal Systems ◽  
Legal Concept ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
Comprehensive Study

Despite their exponential growth in number and activities, international law lacks a comprehensive legal concept of an international organization. The book tackles this topic from the perspective of the legal nature of the legal systems developed by international organizations. It is the first comprehensive study of the different concepts under which international organizations’ legal systems are commonly understood: functionalism, constitutionalism, exceptionalism, informalism. It has a threefold purpose: to trace the historical origins of the different concepts of an international organization, to describe four families under which these different notions are subsumed, and to propose a theory which defines international organizations as ‘dual entities’. The concept of an international organization is defined 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. 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. The effects of the dual legal nature are discussed, analysing international responsibility, the law of treaties, and the validity of organizations’ acts.

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.

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.

Responsibility of the WTO for Breach of an International Obligation under the Draft Articles on Responsibility of International Organizations

2013 ◽  
Vol 50 ◽  
pp. 197-242
Author(s):  
Noemi Gal-Or
Keyword(s):  
International Law ◽  
International Organizations ◽  
World Trade ◽  
International Organization ◽  
Legal Personality ◽  
International Obligation ◽  
The World ◽  
History Of ◽  
International Responsibility ◽  
International Legal Personality

SummaryThis article challenges the argument that the World Trade Organization (WTO) is devoid of executive or governing functions and, hence, immune from the regime set out in the International Law Commission’s 2011 Draft Articles on the Responsibility of International Organizations (RIO). A brief drafting history of the RIO, clarification of the terminology associated with matters of international responsibility, and two hypothetical examples illustrating the potential for WTO responsibility set the stage for the article’s main argument. The author examines the WTO’s nature by analyzing its constituent law, its sui generis mandate and functions, its international legal personality, and its own use of terminology in presenting itself to the world. Critical analysis of RIO Articles 64 (on lex specialis) and 10 (on the existence of a breach of an international obligation), and their application to the WTO, completes the argument. The author thus refutes both the notions that (1) the WTO is exclusively member driven and, hence, not an executive, governing organization but a sui generis entity and (2) the WTO is therefore unable to breach an international obligation and thus immune from the RIO regime. The article concludes that, while a breach by the WTO of an international obligation may be exceedingly rare, it nonetheless — as any international organization — comes within the ambit of the RIO regime. The WTO should therefore consider adjusting its internal rules accordingly.

UN Peacekeeping Operations and Article 7 ARIO: The Missing Link

2012 ◽  
Vol 9 (1) ◽  
pp. 77-85 ◽  
Author(s):  
Aurel Sari
Keyword(s):  
International Law ◽  
International Organizations ◽  
Present Note ◽  
International Organization ◽  
Best Interests ◽  
Effective Control ◽  
Peacekeeping Operations ◽  
Un Peacekeeping ◽  
Institutional Status ◽  
International Responsibility

Peacekeeping operations conducted by international organizations raise difficult questions of international responsibility. In principle, breaches of international law committed by national contingents serving on such operations may be attributed either to the international organization leading the operation or to the State to which the personnel implicated in the wrongful conduct belongs. The ARIO suggests a seemingly simple solution to this dilemma: wrongful conduct should be attributed to the party exercising effective control over that conduct. The present note argues that this solution is misguided. It deliberately ignores the legal and institutional status of national contingents, does not reflect consistent international practice and may not serve the best interests of potential claimants. In the case of peacekeeping operations incorporated into the institutional structure of an international organization, a more appropriate solution to the dilemma of multiple attribution is to proceed on the basis of a rebuttable presumption that the wrongful acts committed by national contingents are attributable to the international organization and not to their contributing State.

Conclusion

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
International Relations ◽  
International Law ◽  
International Organizations ◽  
International Community ◽  
International Organization ◽  
Course Of Action ◽  
The Law

The conclusion makes the case that the jurisdictional immunities of States and international organizations are not only sustainable but also necessary for international relations and cooperation. Contrary to the polemic that immunity breeds impunity, jurisdictional immunities promote respect for international law rather than undermine it. Even where a State or an international organization is immune, it may still be responsible for a wrongful act. To be sure, immunities can be abused. However, abuse of immunity is a different question from the necessity of immunity. The book concludes with the submission that if the international community finds the international law of jurisdictional immunities of States and international organizations to be illegitimate or inadequate, then the proper course of action is to re-evaluate the goals served by the law.

Introduction

2021 ◽  
pp. 1-14
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Legal Systems ◽  
Main Claim ◽  
Legal Scholarship ◽  
Legal Nature ◽  
Definition Of ◽  
Common Understanding

The introductory chapter presents the relevance of the topic in the framework of the practice of international organizations and existing legal scholarship. In particular, it describes how scholars and practitioners do not share a common understanding of what an international organization is and the consequences of this absence of agreement. The main claim is that in order to conceptualize international organizations we have to look at the characteristics of the legal systems they develop and the legal nature of their rules. Four main theses are presented: functionalism (international nature), constitutionalism (internal nature), exceptionalism (only some organizations develop internal rules), and informalism (only some rules have an internal nature). Finally, it sets up the aim of the book: to analyse different conceptualizations, to assess the existence of a general regulatory framework, and to provide a definition of the concept of an international organization in international law.

scholarly journals Guiding Principles on Shared Responsibility in International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 15-72 ◽  
Author(s):  
André Nollkaemper ◽  
Jean d’Aspremont ◽  
Christiane Ahlborn ◽  
Berenice Boutin ◽  
Nataša Nedeski ◽  
...  
Keyword(s):  
International Law ◽  
International Organizations ◽  
Shared Responsibility ◽  
Third Party ◽  
Joint And Several Liability ◽  
Legal Questions ◽  
International Responsibility ◽  
Guiding Principles ◽  
The Law ◽  
International Law Commission

Abstract It is common in international practice that several states and/or international organizations contribute together to the indivisible injury of a third party. Examples thereof are aplenty in relation to climate change and other environmental disasters, joint military activities and cooperative actions aimed at stemming migration. Such situations are hardly captured by the existing rules of the law of international responsibility. In particular, the work of the International Law Commission, which is widely considered to provide authoritative guidance for legal questions of international responsibility, has little to offer. As a result, it is often very difficult, according to the existing rules of the law of international responsibility, to share responsibility and apportion reparation between the states and/or international organizations that contribute together to the indivisible injury of a third party. The Guiding Principles on Shared Responsibility in International Law seek to provide guidance to judges, practitioners and researchers when confronted with legal questions of shared responsibility of states and international organizations for their contribution to an indivisible injury of third parties. The Guiding Principles identify the conditions of shared responsibility (including questions of multiple attribution of conduct), the consequences of shared responsibility (notably, the possibility of joint and several liability) and the modes of implementation of shared responsibility. The Guiding Principles are of an interpretive nature. They build on the existing rules of the law of international responsibility and sometimes offer novel interpretations thereof. They also expand on those existing rules, backed by authoritative practice and scholarship, to address complex questions of shared responsibility.

Internationally Wrongful Acts in Domestic Courts

2007 ◽  
Vol 101 (4) ◽  
pp. 760-799
Author(s):  
André Nollkaemper
Keyword(s):  
International Law ◽  
Case Law ◽  
International Obligation ◽  
Domestic Courts ◽  
International Responsibility ◽  
The Law ◽  
Domestic Law ◽  
Domestic Case

This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.

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