The Responsibility of Member States of International Organizations?

2015 ◽  
Vol 12 (2) ◽  
pp. 448-467
Author(s):  
Esa Paasivirta
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
General Question ◽  
Modus Operandi ◽  
Member States ◽  
Legal Personality ◽  
Mixed Agreements ◽  
Special Case

This article outlines the contours of the special case of the eu in the context of the general question of the responsibility of a member State of an international organization. The special case of eu member States is connected with the modus operandi of the eu in general, and the fact that the implementation of eu acts is largely carried out by national authorities rather than by the eu relying solely on its own organs. This special case is also connected with the phenomenon of so-called ‘mixed agreements’ to which both the eu and its member States are parties. In both situations, the role of the member States is important and appears as part of the normal conduct of the organization. Against the background of these observations, the paper reviews the central concepts of legal personality, competence and responsibility in order to consider and assess the special case of the eu in a broader international law context. The paper also reviews recent legal developments which bear on the assessment of the special case of the eu.

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.

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

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.

scholarly journals Designing for international law: The architecture of international organizations 1922–1952

2020 ◽  
pp. 1-22
Author(s):  
Miriam Bak McKenna
Keyword(s):  
New York ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Labour Organization ◽  
The Relationship ◽  
Physical Manifestation ◽  
Insight Into ◽  
Do So

Abstract Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavours unfolded in three main stages: the years 1922–1926, during which the International Labour Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

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.

International Organizations and the Creation of Customary International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 201-233
Author(s):  
Kristina Daugirdas
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Direct Role ◽  
Customary International Law ◽  
Legal Personality ◽  
Legal Questions ◽  
International Legal System ◽  
The Creation ◽  
International Legal Personality

Abstract This article argues that international organizations ‘as such’ can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations’ direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations’ role in creating customary international law may make international organizations more willing to comply with those rules.

Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent

1991 ◽  
Vol 85 (2) ◽  
pp. 259-280 ◽  
Author(s):  
C. F. Amerasinghe
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Agreements ◽  
Third Parties ◽  
International Level ◽  
Member States ◽  
Legal Personality ◽  
Municipal Law ◽  
Legal Consequences

One of the principal issues of interest to international lawyers in the International Tin Council cases decided by the English courts was whether member states of the International Tin Council (ITC) were secondarily or concurrently liable to third parties for the debts of the organization. This issue may arise when two or more states form an organization with legal personality that can perform functions with legal consequences. In the course of performing these functions, such an organization may incur liabilities to third parties. These third parties may be states, other organizations, individuals or legal persons. The states may be member states of the organization itself or other states, and the individuals and legal persons may be nationals of member states or not. The liabilities may emanate from transactions, such as international agreements between states and the organization, that take place at the international level and may be governed by international law; or they may stem from transactions governed by municipal law, whether between the organization and states, individuals or legal persons. Such liabilities may be contractual, quasi-contractual or delictual.

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.

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