Member States and the International Legal (Dis)order

2015 ◽  
Vol 12 (2) ◽  
pp. 333-357 ◽  
Author(s):  
Ana Sofia Barros
Keyword(s):  
Member State ◽  
International Organizations ◽  
Due Diligence ◽  
Member States ◽  
International Legal Order ◽  
State Behaviour ◽  
Institutional Contexts ◽  
International Responsibility ◽  
Legal Constraints

This article looks into the role of member States as governors of international organizations and explores the legal constraints imposed thereof for the purposes of the establishment of international responsibility. At its foundation lies the quest for an international legal order that effectively protects the interests of those affected by institutional operations. To set the scene for the discussion, the article begins by noting that, in adhering to international organizations, (member) States retain sovereign powers which assume the crucial function of steering their oversight duties over institutional operations. Embracing a constitutionalist paradigm, the article moves on to show how the principles of representativeness and responsiveness inform member State conduct as creators and participants in institutional undertakings. The procedural implications of these principles in institutional contexts are subsequently explored by resorting to due diligence as a standard to evaluate member State behaviour and thereby implement member State responsibility.

Identities of States in International Organizations

2015 ◽  
Vol 12 (2) ◽  
pp. 293-318 ◽  
Author(s):  
Ramses A. Wessel ◽  
Ige F. Dekker
Keyword(s):  
Member State ◽  
International Organizations ◽  
Crucial Role ◽  
General Introduction ◽  
Member States ◽  
International Responsibility ◽  
The Law ◽  
Further Development

In academic debates on the responsibility of international organizations and their member States the different identities of States play a crucial role. However, apart from the difficulty to clearly separate ‘State’ and ‘member State’ identities, it is even more complex to distinguish between the different roles ‘member States’ may have in the framework of international organizations. As a general introduction to this special forum, this essay aims to clarify the different identities and roles States may have in relation to international organizations, especially in the context of the responsibility of international organizations. As the subsequent contributions reveal, the law on the international responsibility of international organizations takes account of the possible responsibility of their members. By mapping the different identities States may have in different settings, this contribution argues that such differentiations may be crucial for the further development of adequate international rules on the responsibility of international organizations and their members.

Competence-Based Approach, Normative Control, and the International Responsibility of the EU and Its Member States

2020 ◽  
Vol 17 (2) ◽  
pp. 418-456
Author(s):  
Cristina Contartese
Keyword(s):  
International Organizations ◽  
Dispute Settlement ◽  
International Community ◽  
Advisory Opinion ◽  
Member States ◽  
Energy Charter Treaty ◽  
International Responsibility ◽  
Investment Agreements ◽  
The Eu

Within the debate on the attribution of international responsibility to international organizations and/or its Member States, the role that the internal rules of the organization may play is not settled. The competence-based approach, where a relationship is supposed to exist between the EU/Member States’ division of competences and international responsibility, and the normative control doctrine, where the Union is deemed responsible for the actions of its Member States in the course of implementing EU law, are at the heart of such debate. This contribution aims to investigate whether the recent practice concerning the Union’s international responsibility in the fields of fisheries and investment adds clarifying elements. The analysis will specifically focus on the 2015 ITLOS Advisory Opinion (Case No 21), an award under the Energy Charter Treaty (Electrabel v Hungary), and the investor-to-state dispute settlement mechanisms laid down in the recent EU bilateral investment agreements. Although one of these cases seems to implicitly recognise the normative control as a rule for the attribution of conduct to the EU when its Member States act implementing Union acts, what is missing, however, is a clear and deep debate on its specific elements. Discussions on a competence-based approach and normative control seem generally confused at the EU as well as at the international community level, suggesting that important opportunities have been missed to properly re-open the debate on the role of the organizations’ internal rules for the attribution of international responsibility.

Competence-Based Approach, Normative Control, and the International Responsibility of the EU and Its Member States

2019 ◽  
Vol 16 (2) ◽  
pp. 339-377 ◽  
Author(s):  
Cristina Contartese
Keyword(s):  
International Organizations ◽  
Dispute Settlement ◽  
International Community ◽  
Advisory Opinion ◽  
Member States ◽  
Energy Charter Treaty ◽  
International Responsibility ◽  
Investment Agreements ◽  
The Eu

Within the debate on the attribution of international responsibility to international organizations and/or its Member States, the role that the internal rules of the organization may play is not settled. The competence-based approach, where a relationship is supposed to exist between the EU/Member States’ division of competences and international responsibility, and the normative control doctrine, where the Union is deemed responsible for the actions of its Member States in the course of implementing EU law, are at the heart of such debate. This contribution aims to investigate whether the recent practice concerning the Union’s international responsibility in the fields of fisheries and investment adds clarifying elements. The analysis will specifically focus on the 2015 ITLOS Advisory Opinion (Case No 21), an award under the Energy Charter Treaty (Electrabel v Hungary), and the investor-to-state dispute settlement mechanisms laid down in the recent EU bilateral investment agreements. Although one of these cases seems to implicitly recognise the normative control as a rule for the attribution of conduct to the EU when its Member States act implementing Union acts, what is missing, however, is a clear and deep debate on its specific elements. Discussions on a competence-based approach and normative control seem generally confused at the EU as well as at the international community level, suggesting that important opportunities have been missed to properly re-open the debate on the role of the organizations’ internal rules for the attribution of international responsibility.

scholarly journals Shared Obligations and the Responsibility of an International Organization and Its Member States

2021 ◽  
pp. 1-40
Author(s):  
Nataša Nedeski
Keyword(s):  
Member State ◽  
International Law ◽  
International Organization ◽  
Member States ◽  
International Obligations ◽  
International Responsibility ◽  
Mixed Agreements ◽  
The Eu ◽  
Do So

Abstract Discussions on the allocation of international responsibility between an international organization and its member states do not comprehensively engage with the role of obligations in assigning responsibility to the organization and/or its members. The present article sets out what will be termed an obligations-based approach to the allocation of international responsibility by exploring the phenomenon of sharing international obligations by an international organization and its members, as well as the implications thereof for their responsibility under international law. It will do so by focusing on the practice of concluding mixed agreements by the EU and its member states, which commonly results in overlapping obligations for the organization and its members. It is ultimately argued that a distinction should be made between two types of shared obligations in mixed agreements in order to untangle who can be held responsible in case of a breach: the EU, the member state(s), or both.

Compensating for limitations in domestic output performance? Member state delegation of policy competencies to regional international organizations

2020 ◽  
pp. 004711782097032
Author(s):  
Diana Panke
Keyword(s):  
Member State ◽  
International Organizations ◽  
Policy Area ◽  
Member States ◽  
Domestic Output ◽  
Window Dressing ◽  
Output Performance ◽  
Policy Goals ◽  
Energy States

Cooperation in regional international organizations (RIOs) can help member states to work toward and perhaps achieve policy goals that would not be feasible unilaterally. Thus, RIOs might be used as a means of states to compensate for domestic shortcomings in output performance. Do states equip RIOs with policy competencies in order to compensate corresponding domestic performance shortcomings? The analysis of a novel database on policy competencies of 76 RIOs between 1945 and 2015 reveals that usually RIOs are not usually used as window-dressing devices by which states disguise limited domestic output performance. Instead, governments tend to equip RIOs with policy competencies in order to further strengthen their already good output performance in most policy areas. However, in the policy area, ‘energy’ states tend to confer more competencies to their respective RIOs, the worse they perform domestically, indicating that output-related compensation dynamics might be at play in this field.

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.

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.

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