International Organizations and Member State Responsibility : Critical Perspectives [1 ed.] 9789004319806, 9789004319738

Citation preview

International Organizations and Member State Responsibility

Nova et Vetera Iuris Gentium Editor-in-Chief Cedric Ryngaert

VOLUME 28

The titles published in this series are listed at brill.com/nvig

International Organizations and Member State Responsibility Critical Perspectives Edited by

Ana Sofia Barros Cedric Ryngaert Jan Wouters

LEIDEN | BOSTON

Originally published as Volume 12, No. 2 (2015) of Brill Nijhoff’s journal International Organizations Law Review. Library of Congress Cataloging-in-Publication Data Names: Barros, Ana Sofia, editor. | Ryngaert, Cedric, editor. | Wouters, Jan, editor. Title: International organizations and member state responsibility : critical perspectives / Edited by Ana Sofia Barros, Cedric Ryngaert, Jan Wouters. Description: Leiden : Brill Nijhoff, 2017. | Series: Nova et vetera iuris gentium ; 28 | Includes bibliographical references and index. Identifiers: lccn 2016026751 (print) | lccn 2016026880 (ebook) | isbn 9789004319738 (hardback : alk. paper) | isbn 9789004319806 (E-book) Subjects: lcsh: International agencies--Rules and practice. | Liability (Law). Classification: lcc kz4850 .I5855 2016 (print) | lcc kz4850 (ebook) | ddc 341.2--dc 3 lc record available at https://lccn.loc.gov/2016026751

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-31973-8 isbn 978-90-04-31980-6 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface vii Notes on Contributors viii 1 Member States, International Organizations and International Responsibility Exploring a Legal Triangle 1 Ana Sofia Barros, Cedric Ryngaert and Jan Wouters 2 Identities of States in International Organizations 8 Ramses A. Wessel and Ige F. Dekker 3 Member State Responsibility for Wrongdoings of International Organizations Beacon of Hope or Delusion? 34 Niels Blokker 4 Member States and the International Legal (Dis)order Accounting for the Notion of Responsible Governance 48 Ana Sofia Barros 5 Member States and International Legal Responsibility Developments of the Institutional Veil 72 Catherine Brölmann 6 International Responsibility and the Constitution of Power International Organizations Bolstered 95 Jean d’Aspremont 7 Dual Attribution in the Context of Military Operations 114 Tom Dannenbaum 8 Sharing Responsibility for un Targeted Sanctions 139 Antonios Tzanakopoulos 9 The Responsibility of Member States of International Organizations A Special Case for the European Union? 159 Esa Paasivirta

vi

Contents

10 Litigating Member State Responsibility The Monetary Gold Principle and the Protection of Absent Organizations 178 Paolo Palchetti 11 The Invocation of Member State Responsibility before National and International Courts Rekindling Old Utopias 193 Francesco Messineo 12 The Responsibility of Member States of International Organizations Concluding Observations 210 Cedric Ryngaert Index 227

Preface The participation of States in international organizations has not been fully embraced by the law of international responsibility. Despite the important contribution of the International Law Commission to the field, the terms in which responsibility is to be allocated between international organizations and their member States remain elusive. The need was thus felt to publish a book fully dedicated to the topic of member State responsibility. In order to properly answer the question of how to devise the contours of the regime of member State responsibility, an a priori judgement of what is a just and effective international legal order is called for. The book cover was especially configured with such purpose in mind. It displays ‘Testimonia’, an allegory of justice painted by Konstantin Bessmertny, oil on canvas, private collection, 1998. This painting depicts in glaring tones the vices of society, all exposed to view in a Shakespearean theatre play. Adam and Eve, at the centre right of the image, appear as defendants before three deranged judges – as if justice were frail, just as frail is our own being. Like society, a product of Adam’s and Eve’s creation, international organizations are the creation of their member States. And like society’s vices, international organizations and their member States have been proven to commit wrongs. If Adam and Eve are to undergo judicial scrutiny, so too should the member States of international organizations. And yet, three (momentarily) impaired individuals are incapable of properly passing judgment, just as the obscurity of the rules of international responsibility undermines whatever calls for justice may emanate from individuals impacted by institutional and member State conduct. Attentive individuals among the audience observe how the story unfolds, expecting fairness to triumph. May the reader likewise enjoy the stories told throughout this book’s chapters, put together to clarify how the fairness of the international legal order may be attained through a more coherent regime of international responsibility. The book is based on a conference organized on 3–4 December 2014 at the University of Leuven by the Leuven Centre for Global Governance Studies, with the support of the Research Foundation – Flanders (fwo), and in cooperation with the European Society of International Law and with the International Law Association’s Belgian Branch. Research leading to this publication has been conducted under the auspices of fwo. The editors would like to specially thank Benjamin Thompson for his editorial assistance. Ana Sofia Barros, Cedric Ryngaert and Jan Wouters

Notes on Contributors Ana Sofia Barros is a Lawyer and PhD researcher at the Leuven Centre for Global Governance Studies, Leuven University, since 2012. She obtained her Law degree from the University of Lisbon in 2007 as well as a Master’s Degree in Human Rights and Democratisation from the European Inter-University Centre for Human Rights and Democratisation in 2010. From 2008, Ana Sofia worked in a Portuguese Law Firm (csa) and subsequently undertook internships at an international ngo (irct) and at the European Commission (olaf). Ana Sofia has published in the areas of international human rights law, international institutional law and development cooperation. Antonios Tzanakopoulos is Associate Professor of Public International Law at the University of Oxford and Fellow in Law at St Anne’s College, Oxford. Antonios studied law in Athens, New York, and Oxford, during which time he also worked as a Researcher for the Hellenic Ministry of Foreign Affairs in Athens and New York, and for the un Office in Geneva. He advises states, international organisations, and private entities on matters of public international law.​​His books include Disobeying the Security Council (oup 2011, re-issued in paperback in 2013) and the Research Handbook on the Law of Treaties (Elgar 2014, co-edited with CJ Tams and A Zimmermann, and re-issued in paperback 2016). Catherine Brölmann is an Associate Professor of Public International Law at the University of Amsterdam. She is a.o. member of the Advisory Committee for Public International Law of The Netherlands, editor on the board of the International Community Law Review (Brill) and a member of the board of directors of the ngo WaterLex in Geneva. In 2007 she published The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Hart, Oxf), and she has since authored several writings on international organizations Cedric Ryngaert is Professor of Public International Law at Utrecht University. Among other publications, he authored Jurisdiction in International Law (oup 2015, 2nd ed), and co-edited The International Prosecutor (oup 2012), and Judicial Decisions of the Law of International Organizations (oup 2016). He is currently the principal investigator of two projects on unilateral jurisdiction and global values, one funded by an European Research Council starting grant and one by the

Notes on Contributors

ix

Dutch Organization for Scientific Research (vidi scheme). He is a board member of several law reviews. Esa Paasivirta is a Legal Advisor in the European Commission in Brussels. He studied in law from the University of Turku (ll.m) and the University of Helsinki (LL.Lic), Finland, and obtained his Ph.D. in international law from the University of Cambridge, uk. He joined the European Commission in 1997 where he has worked especially in the areas of international law and external relations, including in 2004–2008 as First Counsellor and Legal Advisor in the Delegation of the European Commission to the United Nations in New York. Before joining the Commission, he worked as the Legal Advisor of the Energy Charter Secretariat (Brussels), at the Finnish Ministry for Foreign Affairs (Helsinki) and the International Trade Centre unctad/wto (Geneva). He has published in the areas of international law and eu law. He is also an adjunct professor in the Faculty of Law at the University of Helsinki and visiting professor College of Europe, Bruges (2008–2012).​ Francesco Messineo is a Legal Officer at the Office of Legal Affairs of the United Nations (Codification Division). He was previously an Associate Legal Officer at the International Court of Justice (2012–2015) and a Lecturer in Law at the University of Kent (2010–2012). He also taught at the University of Cambridge, where he gained his PhD (2012) and his llm (2007). He obtained his Laurea in Giurisprudenza (llb) at the University of Catania (2006). Between 2004 and 2006, he was the Refugee and Migrants’ Rights Coordinator of the Italian Section of Amnesty International. Ige F. Dekker is Emeritus Professor of International Institutional Law at the School of Law of Utrecht University. He studied law and peace research and was connected to the universities of Groningen, Amsterdam (Vrije Universiteit) and Twente. He was in Utrecht also as director of studies (2002–2008) and head of the School of Law (2008–2014). His main research interests concern the law of international organizations, including the European Union, international economic law, in particular international investment law, and the theory of (international) law. Jean d’Aspremont is Professor of Public International Law at the University of Manchester where he co-directs the Manchester International Law Centre (milc). He also is

x

Notes on Contributors

­ rofessor of International Legal Theory at the University of Amsterdam. He is P the General Editor of the Cambridge Studies in International and Comparative Law. He is a member of the Scientific Advisory Board of the European Journal of International Law. He used to be Editor-in-Chief of the Leiden Journal of International Law. Jan Wouters is Full Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam eu and Global Governance, and founding Director of the Institute for International Law and of the Leuven Centre for Global Governance Studies at the University of Leuven. He is Adjunct Professor at Columbia University and Visiting Professor at Sciences Po (Paris), Luiss University (Rome) and the College of Europe (Bruges). He is a Member of the Royal Academy of Belgium for Sciences and Arts, President of the United Nations Association Flanders Belgium, and Of Counsel at Linklaters, Brussels. He has published widely on international and eu law, international organizations, global governance and financial law. He is coordinator of a number of major research projects, including FRAME (a large-scale FP7 Programme on human rights in eu Policies), advises various international organizations and governments, trains officials, and often comments international events in the media. Niels Blokker was appointed as Professor of International Institutional Law to the ‘Schermers Chair’ in 2003 (0.2). Since August 2013 this is a full-time appointment. He graduated from Leiden University (1984), where he also defended his dissertation (1989). From 1984 he was a lecturer, subsequently a senior lecturer in the law of international organizations at Leiden University. In 2000 he was appointed senior legal counsel at the Netherlands Ministry of Foreign Affairs. In 2007 he became Deputy Legal Adviser at this Ministry. As of 1 August 2013 he has left the Foreign Ministry and started working full-time at Leiden University. His publications include International Regulation of World Trade in Textiles (dissertation, 1989), International Institutional Law (co-authored with the late Henry G. Schermers, 5th edition 2011), Proliferation of International Organizations (co-authored with the late Henry G. Schermers, 2000), The Security Council and the Use of Force (co-edited with Nico Schrijver, 2005) and Immunity of International Organizations (co-edited with Nico Schrijver, 2015). He is co-founder and co-editor-in-chief of the journal International Organizations Law Review.​

Notes on Contributors

xi

Paolo Palchetti is Professor of International Law at the Department of Law of the University of Macerata (Italy). He is the director of the Ph.D. program in Legal Studies of the University of Macerata and was visiting professor in several universities (including Université Panthéon-Assas/Paris 2, Université de Nice/Sophie Antipolis, Universidade Federal de Santa Catarina, and the University of Edinburgh Law School). He is co-editor of qil-Questions of International Law, member of the Board of Directors of Diritti Umani e Diritto Internazionale, member of the editorial committee of the Rivista di diritto internazionale. He sometimes acted as adviser of the Italian Ministry for Foreign Affairs and was counsel of several States in international disputes before the International Court of Justice.​ Ramses A. Wessel is Professor of International and European Law and Governance and Co-Director of the Centre for European Studies at the University of Twente, The Netherlands. He held previous positions at the Universities of Groningen and Utrecht. Professor Wessel’s general research interests lie in the field of international and European institutional law and he has published widely on the law of international organizations and on eu external relations. He is Co-Editor in Chief of the International Organizations Law Review, the ­Netherlands ­Yearbook of International Law and editor of a number of other international journals in the field. Website: http://www.utwente.nl/bms/pa/staff/wessel/ Tom Dannenbaum is Lecturer in Human Rights at University College London. His work engages in empirically-informed, normative analysis of international law’s content, ­structure, and foundations in the context of two fundamental transformations of its character and purpose. Namely, its moralization and its progression to an increasingly multi-layered and multi-dimensional, as opposed to flat and horizontal, orientation. He works on these questions primarily in the contexts of armed conflict, international criminal law, and human rights.

chapter 1

Member States, International Organizations and International Responsibility Exploring a Legal Triangle Ana Sofia Barros, Cedric Ryngaert and Jan Wouters International organizations are complex, composite legal entities. They have been established by States but, endowed with separate international legal personality, aspire to lead an autonomous life at arm’s length from their creators. Nevertheless, in order to properly carry out the normative and operational mandate allotted to them, they tend to rely, at least partly, on their member States: for example when performing military operations, or imposing sanctions against terrorists. In addition, member States continue to play a prominent role in institutional decision-making, as most, if not all, international organizations possess organs in which the member States — or a number of  them — decide on action to be taken. This ‘interwovenness’ of international organizations and their member States begs the question of who bears responsibility when institutional activity offends international law: for example, when un peacekeepers violate human rights in carrying out their mandate, when the un Security Council fails to offer a remedy to blacklisted presumed terrorists, or when an international development bank’s lending conditions provoke a member State to, for instance, disrespect international environmental law. The law of international responsibility does not have a ready answer to this question. The International Law Commission’s (‘ilc’) 2001 Articles on the Responsibility of States for Internationally Wrongful Acts (‘asr’)1 intentionally left the question unanswered. The ilc’s 2011 Articles on the Responsibility of International Organizations (‘ario’)2 attempted to fill this gap by delineating the criteria on the basis of which member States may be found responsible in connection with the acts of international organizations (in particular in 1 The text of which appears as an annex to General Assembly Resolution 56/83 (12 December 2001), as corrected by un Doc. A/56/49(Vol. I)/Corr.4, and the commentaries to which appear in Supplement No. 10, un Doc. A/56/10. 2 Report on the Work of its Sixty-Third Session, un Doc. A/66/10 (2011). The set of 67 draft articles were adopted by the ilc on 3 June 2011, and the commentaries were adopted on 5 August 2011.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_002

2

Barros, Ryngaert and Wouters

Part V of the ario). The ario, having laid down the relevant rules on organizational responsibility, have served as the standard of reference regarding the responsibility of member States. They have triggered a lively doctrinal debate, and have been relied upon by a (limited) number of domestic and international courts. In spite of the adoption and impact of the ario, the answer to the question of how precisely responsibility between an international organization and its member States is to be allocated remains an elusive one. This is largely explained by taking the traditional concept of the law of international responsibility and applying it to the independent conduct of States and international organizations, rather than by considering the cooperative or joint conduct involving both an international organization and a member State (or two international organizations, or two or more States, as the case may be). Any effort to determine where the former begins and the latter ends inevitably finds itself at a crossroads involving acts that can be characterized as the State’s own conduct, acts that are attributable to both the State and the international organization, or acts which, despite not being attributable to the State, somehow involve its responsibility. In addition, although the current rules of international responsibility envisage the possibility of multiple wrongdoing actors, they arguably lack a clear normative framework on the basis of which responsibility is to be apportioned between member States, as well as between them and the international organization. Inescapably, such indeterminacy will continue to undermine attempts by injured individuals to litigate against wrongdoing member States. Critical procedural questions, such as the immunity of international organizations before domestic courts, and the principle that indispensable third parties should be involved in relevant proceedings, create further obstacles to the attainment of redress. The need for clarification is of course not only felt at the level of the secondary rules of international responsibility. The establishment of member State responsibility is also a question of how to interpret primary norms of international law, and thereby extend their scope of application to the new forms in which States operate at the global level. It is thus fundamental to extract from the discussions on international responsibility indications for a possible harmonized approach to primary legal rules. This helps, for instance, in the determination of how exactly prevention duties condition the operations of troop-contributing States, or how to engage States’ human rights duties to protect when they participate in institutional decision-making processes. Against the backdrop of the ilc’s work on international responsibility, this  special forum aims to explore recent developments and the remaining conceptual gaps regarding the responsibility of member States of international

Member States, International Organizations

3

organizations, and to discuss possible future avenues that may assist in addressing the matters that have been left unregulated by the normative framework so far devised by the ilc. Arguably, at times we allow our minds as legal thinkers to become entangled in what are seemingly insoluble dilemmas of attribution (or the like) within a sphere of intricate power relationships that operate globally, while the problem may also be partly due to constraints in our practical imagination. If institutional law scholarship is on the verge of a mid-life crisis, as feared by Klabbers,3 we hope, with this special forum, to offer some sort of therapy. The special forum, which brings together a distinguished group of renowned scholars and practitioners, seeks to capture the various understandings within academia and legal practice that reflect the evolution of the contemporary law of international (member State) responsibility. It builds on a conference organized under the auspices of the Leuven Centre for Global Governance Studies, with the support of the Flemish Fund for Scientific Research, on 3–4 December 2014 at the Leuven University.4 Special thanks are extended to Benjamin Thompson for his editorial assistance. *** As will be shown in this special forum, the way we think about international responsibility is not immune to the existence of particular normative interests. This entails that perspectives — and outcomes — may differ, depending on whether the emphasis is placed on the capacity of member States as States, or on their capacity as members of the international organization (see the contributions in Part I of this special forum). This can be translated into the notion that fluctuations of power between international organizations and their members play a role in various dimensions of international responsibility, and that the transparency of the institutional veil is subject to changes depending on the context (see the contributions in Part ii). Given the interconnectedness between member States and international organizations, it may be the case that many situations result in responsibility being shared between both (see the contributions in Part iii). This, however, should not hamper the access of individuals to justice, inasmuch as member State responsibility can in any

3 Jan Klabbers, ‘The Life and Times of the Law of International Organizations’ (2001) 70 Nordic Journal of International Law p. 317. 4 The conference website is available at: .

4

Barros, Ryngaert and Wouters

event be scrutinized by national and international courts in its own right (see the contributions in Part iv). Ramses A. Wessel and Ige F. Dekker undertake the enterprise of mapping the different positions and roles member States assume vis-à-vis international organizations. In so doing, they provide an introductory basis upon which to explore this special forum, inasmuch as these differentiations are deemed crucial for the further development of adequate international rules on the responsibility of international organizations and their members. By looking into the different qualities of (member) States in relation to international organizations, and the various functions of the former in exercising institutional tasks, Wessel and Dekker demonstrate that by becoming a ‘member State’, States do not lose their identity as ‘State’; and that even in their identity as a ‘member State’, States have different roles and functions. Importantly, these various identities are not rigidly fixed, but rather shift on a constant basis, and may even overlap. Niels Blokker argues that pursuing member State responsibility for the internationally wrongful acts of international organizations may prove to be delusional rather than offer hope to victims. Emphasizing the autonomy and independent legal personality of international organizations, he warns against the dangers of attributing member State responsibility, and posits that member State responsibility should be the exception rather than the rule. Noting that most complaints against member States in fact point to deficiencies at the level of the international organization, he proposes to base dispute-resolution mechanisms with competence over international organizations’ responsibility at the level of the international organization itself. This would boost the international organization’s legitimacy and increase chances of successful implementation of decisions taken. Ana Sofia Barros explores the international responsibility of member States for their own conduct performed as governors of international organizations. This role is derived from member States’ particular position of power vis-à-vis international organizations (as ‘authority managers’), and essentially translates into a duty of oversight of institutional operations to ensure that these do not run counter to the international law obligations that States are bound to observe. By embracing a victim-centred perspective, she praises the constitutionalist principles of representativeness and responsiveness as necessary requirements guiding the conduct of States: not only in the design of the international organization’s operational framework, but also throughout States’ participation in its activities. As Barros concludes, a failure by the State

Member States, International Organizations

5

to exercise due diligence in these contexts may lead to a finding of member State responsibility. Catherine Brölmann explores the dynamics of the institutional veil by looking at the various ways in which that notion might engage the responsibility of member States. Characterized by its transparent quality, this analytical tool allows one to look at the position of member States from the outside perspective of general international law, and thereby establish member State responsibility by lifting, permeating or bypassing the institutional veil. As she notes, lifting or permeating the veil to establish the subsidiary responsibility of member States has remained highly contested in legal scholarship and practice, whereas this ‘permeation’ seems increasingly accepted when it comes to both the attribution of wrongful conduct to member States, and the establishment of the latter’s responsibility in connection with wrongful acts of an organization. In other scenarios, the institutional veil is rather bypassed, in which case member States incur responsibility for their own conduct performed in an institutional context. Jean d’Aspremont suggests an innovative approach to understanding the ario, submitting that the adoption of the Articles should be seen as a moment that has led to the empowerment of both international organizations and their member States, rather than one which simply makes them accountable for their actions. The regime of international responsibility is thus not only declaratory of power but also constitutive thereof. What is clear for him is that, in accepting that two types of subjects could be held responsible in relation to institutional activities, the ario recognize the flux of power between international organizations and their member States. The ario may have stabilized the international responsibility regime with respect to international organizations and their member States, but nevertheless offer sufficiently dynamic tools to keep pace with fluctuations of powers, thereby making it possible to arbitrate competing claims of responsibility. Tom Dannenbaum concentrates on questions of attribution in cooperative military enterprises involving both member States and international organizations. These enterprises have merged systems of authorization, as a result of which it is not always readily clear which conduct is whose. Observing that such collaborative action should nevertheless not evade scrutiny, he hails the effective control standard laid down in Chapter 7 ario, as it attributes conduct to actors who can take preventive action. Analyzing a number of court decisions regarding responsibility in international military operations, he shows

6

Barros, Ryngaert and Wouters

that there is a welcome tendency to abandon the presumption that conduct is attributable to the authorizing international organization per se, and instead to inquire into specific conduct carried out in the course of the operation. Such an inquiry may lead to a finding of dual attribution of wrongful conduct to both the international organization and the member State, although this is not inevitable. Antonios Tzanakopoulos addresses the shared responsibility of the un and its member States for breaches of the right to fair trial as a result of the application of targeted sanctions against supporters of terrorism. Such sanctions are normatively imposed by the un Security Council, but are implemented by un member States (sometimes united in regional organizations, as in the case of the eu). Courts have seized on this implementation to hold member States responsible for rights-violating sanctions. Tzanakopoulos argues, however, that also the un could and should be held responsible for its member States’ acts, as those States, being bound by un Security Council Resolutions, had little discretionary power. The responsibility of the un could be implemented indirectly through court decisions rendered against member States, as such decisions trigger members to bring pressure to bear on the un to reform its sanctions regime. Esa Paasivirta makes the case for treating the eu and its member States differently from other international organizations when it comes to questions of international responsibility. His first main argument relates to the principle that responsibility should follow competence. As he notes, the eu’s modus operandi is unique and difficult to square with the ario paradigm, in that the practical application and management of the eu’s legislative and regulatory activity is largely carried out by the national authorities of member States, rather than through the eu’s own organs. The eu, where competence lies, should thus normally be held responsible, while member State responsibility constitutes the exception. The second differentiating factor relates to the practice of ‘mixed agreements’, in which both the eu and its member States are parties. As Paasivirta suggests, these agreements bring about a duty of communication on the part of the eu and its members towards third parties, in view of the need to protect their interests. A failure to do so would lead to the establishment of joint and several responsibility, which the author contends is the default form of responsibility in these cases. Francesco Messineo turns our attention to mechanisms for invoking the responsibility of member States before national and international courts.

Member States, International Organizations

7

Starting from the premise that for every breach of the law a remedy should exist, he observes that litigating member State responsibility is nonetheless not self-evident due to procedural restrictions. He sees merit in suing the respondent State before its own courts, but notes that few domestic courts, with the notable exception of Dutch courts, have been open to such politicallysensitive litigation. In order to expand the range of remedies available to victims, he calls on domestic courts to revise their non-justiciability doctrines, as well as on the international community to allow international organizations to be sued through international dispute-settlement mechanisms. Paolo Palchetti further develops one of the procedural obstacles that could wreck litigation against member States, namely the ‘Monetary Gold” principle, by virtue of which a court cannot exercise its jurisdiction if deciding a case against a party may cause it also to determine the legal position of an indispensable third party. Palchetti notes that the application of this doctrine is not entirely fanciful in litigation against member States, notably in ario Part V scenarios in which the attribution of responsibility to member States may amount to deciding on the responsibility of the international organization as well. Alive to the reality that victims of institutional action have few remedies available, he proposes to limit the application of the doctrine to scenarios in which derived member State responsibility requires a finding of international wrongfulness by the international organization, and even to exclude it altogether where (international) tribunals have no jurisdiction over international organizations. Cedric Ryngaert concludes the special forum by integrating its various themes within the overall dialectic inherent in the establishment of member State and international organization responsibility. Conscious of the lack of remedies against international organizations, he notes that the solution does not lie in holding member States responsible by virtue of their mere membership. Institutional autonomy is to be preserved, and the rules of international (member State) responsibility, in offering clear attribution criteria, are fundamental in this respect. At the end of the day, victims of institutional action should obtain redress for any harm endured, and member States must not only improve the quality of remedies at the level of the international organization, but also remove the remaining obstacles to litigation concerning the responsibility of member States in domestic courts.

chapter 2

Identities of States in International Organizations Ramses A. Wessel and Ige F. Dekker 1 Introduction One of the key questions flowing from the recent debates on the responsibility of international organizations and their member States is how to distinguish States from member States. In relation to the allocation of responsibilities, and recent case law on the responsibility of States for acts performed in the framework of or by international organizations, this question, in particular, is gaining importance. This essay aims to clarify the different identities States can have in relation to international organizations. It thus serves as a general introduction – or amuse perhaps – to the theme of this special forum: the responsibilities of member States of international organizations. The distinction between an international organization and its member States is a classic and recurring theme in the law of international organizations. Recently, the 2011 Articles on the Responsibilities of International Organizations (‘ario’)1 in particular triggered renewed debates on the different legal position of international organizations and their member States under international law.2 The identity of ‘member State’, however, is just one of the possible positions States can have in relation to international organizations. And even the qualification as ‘member State’ hides several different identities. This contribution aims to map these different positions/roles and the connected identities States may have as creators of international organizations, members of international organizations, former members of international organizations, legal partners of international organizations or possible accountable back-ups for international organizations. In addition, it will address the tension States may experience between being a State and a member State at the same time. This tension is particularly visible in the European Union — where member States’ obligations under eu law increasingly collide with general obligations those States may have under international law — but 1 Report on the Work of its Sixty-Third Session, un Doc. A/66/10 (2011). The set of 67 draft articles were adopted by the ilc on 3 June 2011, and the commentaries were adopted on 5 August 2011 (‘ario and Commentaries’). 2 See especially (2012) 9(1) International Organizations Law Journal, containing various contributions analysing the ario.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_003

Identities Of States In International Organizations

9

also become apparent in other international ‘integration’ organizations as well. In short, the aim of this contribution is to shed light on the distinction between States and member States in their relations with international organizations. We realize that much more can be said about any of the identities we include in our mapping exercise. In that sense, this chapter should be seen as a preliminary overview. Nevertheless, the various contributions to this special forum highlight the importance of the distinction between the international organization and (member) States. Thus, d’Aspremont points to the notion that “the ario make international organizations powerful entities”, in that they “construct the possibility of international organizations aiding, coercing, or directing (member) States”.3 At the same time States, acting in the capacity as members, are also empowered by the rule on international responsibility. In fact, as argued by d’Aspremont, “[i]n recognizing that States can exercise power within the framework of international organizations, the ario make it possible for power to fluctuate between organizations and their member States”; and, as we will argue in the present contribution, the different identities States may have in relation to the organization will affect the powers they can exercise in certain situations. These identities are perhaps most visible in relation to military operations conducted within the framework of an international organization. As shown by Dannenbaum, cooperative military enterprises (‘cmes’) reveal that “[t]roop contributing States and one or more organizations or lead States each take on some fraction of the functions that would ordinarily be held by a single authority”.4 As we will see below, the fact that troop contributing countries retain for instance disciplinary authority, criminal jurisdiction, troop appointment and promotion authority, and training responsibilities highlights their status as ‘States’, arguably leading to a different assessment of their responsibilities. The terms used in Article 7 of the ario — troops ‘at the disposal’ of an international organization, and ‘effective control’ exercised by either the organization or the State — again underline that it may be difficult to distinguish between the different identities of States in all circumstances. More generally, “the identification of the ‘proper respondent’” is a crucial element in the law of international responsibility.5 The question is often 3 See Jean d’Aspremont’s contribution to this special forum, ‘International Responsibility and the Constitution of Power: International Organizations Bolstered’. 4 See Tom Dannenbaum’s contribution to this special forum, ‘Dual Attribution in the Context of Military Operations’. 5 See Paolo Palchetti’s contribution to this special forum, ‘Litigating Member State Responsibility: the Monetary Gold Principle and the Protection of Absent Organizations’.

10

Wessel and Dekker

whether (member) State conduct can be assessed independently of the decision taken by an international organization empowering the State to act. Palchetti points to the necessary distinction that must be drawn between different situations in this respect: First, the position of the member State may be strictly intertwined with that of the organization because the conduct complained of can be simultaneously attributed to both subjects .… Secondly, an organization may contribute to the wrongful conduct of a member State, for instance by aiding and assisting, or directing and controlling, the member in the commission of the wrongful conduct, or by adopting a decision binding a member State to pursue such conduct. Finally, there are situations in which a member State incurs responsibility for conduct which is to be attributed to the organization.6 These situations again trigger the need to be able to establish the capacity in which a State acted and, in a way, reveal different identities of States, or, to be more precise, of ‘member States’. Indeed, as underlined by Blokker: “The issue is the responsibility of States in their capacity as member States of international organizations. In this sentence, the word member is fundamental.”7 It is exactly this point that the present contribution aims to develop further. While the distinction between ‘State’ and ‘member State’ identities is crucial in establishing international responsibilities, the same may hold true for the distinction between the different dimensions of ‘membership’. 2

Perspectives on the Position of (Member) States in Relation to (Their) International Organizations

The role of many international institutions has developed well beyond a ‘facilitation forum’ and underlines their autonomous position in the global legal order.8 In those cases, decision-making takes place not only on the basis of 6 Ibid, p. 471. 7 See Niels Blokker’s contribution to this special forum, ‘Member State Responsibility for Wrongdoings of International Organizations: Beacon of Hope or Delusion?’, p. 321. 8 See generally Richard Collins and Nigel D. White (eds.), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (Routledge, London, New York, 2011). See also Ramses A. Wessel, ‘International Governmental Organizations as Non-State Actors’, in M. Noortmann, A. Reinisch and C. Ryngaert (eds.), Non-State Actors in International Law (Hart Publishing, Oxford, 2015) pp. 185–203.

Identities Of States In International Organizations

11

well-defined procedures with an involvement of institutional actors other than States, but also on the basis of a sometimes dynamic interpretation of the original mandate of the organization.9 Indeed, the outcome comes closer to a decision of an international organization than to an international agreement concluded between States. In fact, it could be argued that this is what ‘institutional law-making’ is all about: it is law-making by international institutions (be it formal international organizations or other international bodies) and less about law-making through international institutions.10 Yet, the distinction is not always easy to make. In some cases, the degree of institutionalization of the organization is ‘light’, and it serves as an ad hoc vehicle for a multilateral diplomatic process. Thus, the 3rd un Conference of the Law of the Sea led to unclos iii, and, at the 1998 Rome Conference, States adopted the Statute of the International Criminal Court. In these cases, the conferences were indeed not much more than meeting points which facilitated the conclusion of treaties by States.11 Similar processes also take place within more permanent structures, including formal international organizations. Obvious examples include the un General Assembly12 and the un specialized agencies.13 In these cases an important function of international organizations is to reveal State practice

9

10

11

12 13

Jan Wouters and Philip De Man, ‘International Organizations as Law-Makers’, in J. Klabbers and Å. Wallendahl (eds.), Research Handbook on the Law of International Organizations (Edward Elgar Publishing, Cheltenham, 2011) p. 192: “It is possible … that the treaty provisions pertaining to the law-making powers of the organization will be construed in a different way than was originally intended by the drafting nations, as it proves very difficult to draft an instrument in such a manner as to effectively preclude any other possible interpretation”. Ramses A. Wessel, ‘Institutional Law-Making: The Emergence of a Global Normative Web’, in C. Bröllman and Y. Radi (eds.), Handbook on the Theory and Practice of International Law-Making (Edward Elgar Publishing, Cheltenham, 2016) (forthcoming). See on these two dimensions of international organizations J. Klabbers, ‘Two Concepts of International Organization’, (2005) 2 International Organizations Law Review pp. 277–293; as well as his ‘Contending Approaches to International Organizations: Between Functionalism and Constitutionalism’, in J. Klabbers and Å. Wallendahl, supra note 8, pp. 3–30. Wouters and De Man, supra note 8, at p. 205, have argued that in these cases international organizations “merely act as agents, since they only propose draft conventions through gathering information and offering their expertise, which then may or may not be entered into by the member States”. Following Art. 13 of the un Charter which refers to its responsibility for “encouraging the progressive development of international law and its codification”. See e.g. Alan Boyle and Chirstine Chinkin, The Making of International Law (Oxford University Press, Oxford, 2007), pp. 124–141.

12

Wessel and Dekker

(and opinio juris14) and to allow for the speedy creation of customary law, although one needs to remain aware of the distinction between State practice and the practice of an international organization.15 However, this contribution aims to shed more light on the issue of ‘where the State ends and the member State of an organization begins’ and thus aims to serve as a foundation for the other contributions to this special forum, which focus on the responsibilities of States as members of international organizations. While textbooks present the distinction between the organization and its member States as the basis of international institutional law, specific literature mapping the different identities of States in relation to international organizations is hard to find. Some distinction between the organization and its members is often part of textbook definitions of international organizations. Thus, the well-known description given by Schermers and Blokker of an international organization being a forms of cooperation “(1) founded on an international agreement; (2) having at least one organ with a will of its own; and (3) established under international law”,16 contains the criterion that the organization should have ‘a will of its own’. To what extent is this criterion helpful in identifying the different positions States may have in relation to the ‘autonomous’ international organizations?17 Usually the ‘volonté distincte’, is reflected in the fact that organizations have organs (or indeed ‘at least one organ’) with a limited composition and procedures that allow for decisions to be taken in ways other than by consensus. In the variety of organs making up international organizations, the so-called ‘Boards’ or ‘Councils’ perhaps best represent the distinctive position of the

14 Cf. Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, International Court of Justice, Advisory Opinion, [1996] icj Reports p. 226, at p. 240, para. 70: “General Assembly resolutions […] can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule”. 15 Wouters and De Man, supra note 9, pp. 207–208. Once consensus has been reached within an international organization, it will be difficult for States to deny their acceptance of a norm and to be recognised as a ‘persistent objector’. 16 Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity (Martinus Nijhoff Publishers, Leiden-Boston, 2011), p. 37. 17 Collins and White, supra note 8.

Identities Of States In International Organizations

13

organization vis-à-vis its member States.18 Alongside a central congress (in the form of an ‘Assembly’) and a Secretariat, the Board completes the ‘elementary triad’19 forming the basis of the institutional structure of most international organizations. Whereas the plenary general congress is usually the reflection of the ‘agora’ function20 of an international organization, and the Secretariat has mainly administrative functions, Boards were created to allow organizations to act more effectively through a non-plenary organ that would meet more frequently than the general congress or which would even be in session on a ‘permanent’ basis. The fact that not all members of the organization are represented in the Board, and that members may be selected on the basis of the knowledge of the field, turns this organ into the part of the institutional structure of the organization that perhaps best represents the latter’s distinctive position. While there are good reasons also to view general congresses as also being ‘true’ organs of the organization (in which the participating States obtain a new identity as ‘member State’, following the rules and procedures of the organization and taking decisions that can be accredited to the organization), the fact that Boards are non-plenary organs strengthens the autonomy international organizations may enjoy from their member States (see further below).21 Yet, the idea of the ‘volonté distincte’ of international organizations has also been criticized. Klabbers, in his textbook, pointed to the fact that it is perhaps too easy to be used in distinguishing international organizations from their members.22 Their relationship is far more complex (as we will also see below) and the popular view that there is a constant struggle between the organization and its members (or vice versa) — resulting in the so-called Frankenstein problem23 — does not do justice to the legal-political reality. At the same time, 18

19 20 21 22

23

See more extensively on the function of Boards Ramses A. Wessel, ‘Executive Boards and Councils’, in J. Cogan, I. Hurd and I. Johnston (eds.), Oxford Handbook of International Organizations (Oxford University Press, Oxford, 2015) (forthcoming). Schermers and Blokker, supra note 16, p. 293. Jan Klabbers, ‘Two Concepts of International Organization’, and ‘Contending Approaches to International Organizations’, supra note 10. See in general also Collins and White, supra note 8. Jan Klabbers, An Introduction to International Institutional Law (2nd ed.) (Cambridge University Press, Cambridge, 2009) pp. 308–311. Occasionally we refer to this 2nd edition, as some of its parts did not recur in the 3rd edition. Obviously, this problem relates to the idea that the entity created by the States may have a tendency to develop its own competences and may even turn against its creators. See Andrew Guzman, ‘International Organizations and the Frankenstein Problem’ (2013) 24(4) European Journal of International Law p. 999; cf. also the leading quote from Mary Shelly in

14

Wessel and Dekker

the relationship between international organizations and their members should not be seen as a zero-sum game. As argued by Klabbers: I do not think that the law of international organizations should only be analyzed in terms of a zero-sum game between the organizations and its members, where powers exercised by the members on Monday may be transferred to the organization on Tuesday only to flow back again to the members on Wednesday, and so on and so forth. Neither is it a zero-sum game in the more fluid sense of saying that whenever an organization loses power, it can only be to the benefit of States, whereas when States lose power it only benefits organizations.24 Despite the fact that we are not aware of too many publications that present the relationship between the organization and its members as a zero-sum game, the point made here is clear. As we will see in the subsequent section, it is not so much the powers but rather the identities of States that are shifting; and they are not shifting from day to day but on a constant basis, and they may even overlap. Apart from the composition and functions of the organs, academic literature pointed to the fact that by becoming a ‘member State’, States do not lose their identity as a ‘State’. This dual identity perhaps becomes most visible in the context of an international organization that is of the opinion that its members are first and foremost ‘member States’ and that their ‘State’ identity has become more or less supplementary: the European Union. Indeed, recent case law underlines that the principle of sincere cooperation is believed to influence international law obligations in the sense that member States may be forced to renegotiate or withdraw from existing international agreements.25

24 25

Jan Klabbers, An Introduction to International Institutional Law (3rd ed,) (Cambridge University Press, Cambridge, 2015), p. v: “You are my creator, but I am your master; obey!” Jan Klabbers, An Introduction to International Institutional Law (2nd ed.), supra note 22, p. 309. Examples include the Open Skies cases (e.g. Commission v. Finland, 5 November 2002, European Court of Justice, Case C-469/98, [2002] I-09627), bits cases (Commission v. Austria, 3 March 2009, European Court of Justice, Case C-205/06, [2009] ecr I-1301; Commission v. Sweden, 3 March 2009, European Court of Justice, Case C-249/06, [2009] ecr I-1335; Commission v. Finland, 19 November 2009, European Court of Justice, Case C-118/07, [2009] ecr I-10889), or the pfos case (Commission v. Sweden, 20 April 2010, European Court of Justice, Case 246/07, [2010] ecr 1–3317). From a more constitutional point of view, similar arguments that international law should be applied in a way that would not harm the constitutional principles of the eu legal order were made in the Kadi

Identities Of States In International Organizations

15

While for eu member States (and most eu legal scholars) these may be logical consequences of a dynamic division of competences, third States (and most public international law scholars) would remind us of the rule of pacta tertiis nec nocent nec prosunt: third States are in principle not bound by the eu Treaty as to them it is an agreement between others.26 From a legal perspective they should not be concerned with a complex division of competences that is part of a deal between the eu and its own member States.27 This implies that eu member States will have to square their eu obligations with the occasionally conflicting obligations they have under international law (or, in the terminology of the current paper, square their identities of ‘State’ and ‘member State’). A recent example is provided by the shift of the competence to conclude international investment treaties from the member States to the Union, causing the member States to try and get rid of the over 1000 Bilateral Investment Treaties (‘bits’) they had concluded with third States.28 Other examples of combinations of identities can be found in the position eu member States have in other international organizations, where they often have to combine their political preferences as a State with being loyal to an eu common position, or where they may even have to act on behalf of the eu once the latter is (exclusively) competent in a particular area but does not have a standing in the related international organization (e.g. the ilo).

26

27

28

case (Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 3 September 2008, European Court of Justice, Joined cases C-402/05 P and C-415/05, [2008] ecr I-6351). While cases on the duty of cooperation in relation to existing international obligations (Art. 351 Treaty on the Functioning of the eu) typically point to a need to reconcile eu and international obligations, it may be argued that the Kadi cases go beyond that and may ultimately lead member States to violate international law obligations. This rule is laid down in Art. 34 of the 1969 Vienna Convention on the Law of Treaties (‘vclt’): “A treaty does not create either obligations or rights for a third State without its consent”. See, more extensively, Christina Eckes and Ramses A. Wessel, ‘The European Union: An International Perspective’, in T. Tridimas and R. Schütze (eds.), The Oxford Principles of European Union Law − Volume 1: The European Union Legal Order (Oxford University Press, Oxford, 2016) (forthcoming). Angelos Dimopoulos, eu Foreign Investment Law (Oxford University Press, Oxford, 2011); Thomas Eilmansberger, ‘Bilateral Investment Treaties and eu Law’ (2009) 2 Common Market Law Review pp. 383–429.

16 3

Wessel and Dekker

Qualities of States in Relation to International Organizations

3.1 States as Creators of International Organizations The situation in which there can be no confusion about the State/member State dichotomy is when the international organization does not yet exist. International organizations are based on international agreements between States (or other international organizations)29 and obviously States can only become a member of the new entity once that agreement has entered into force and the organization starts functioning. This implies that, during all preparatory work, States remain having the single status as ‘State’, irrespective of procedures that may have been agreed upon during the negotiation process. Also, in terms of responsibility, it is clear that, in this situation, States are the relevant actors. The negotiations about the establishment of an international organization are regularly concluded with the determination of the text of the treaty by the signing of the constitutive document by the participants. As signatories, States become, in principle, ‘future’ member States; and, as such, have a distinct legal status. As signatories of a constitutive treaty, they are bound by the minimum obligation to refrain from any acts or behaviour that may jeopardize the realization of the object and purpose of the organization.30 Normally, States will only bear this quality temporarily because they will become full members after they have ratified the treaty and the treaty has entered into force. However, there is nothing automatic about becoming a member simply through becoming a signatory, nor is there any obligation to become a member. States can even free themselves from this minimum obligation by making their intention clear that they will not ratify the treaty and thus will not become a member of the organization.31 States that participated in the negotiations leading to the conclusion of the constitutive treaty of an organization become the ‘original’ or ‘founding’ members of the organization. However, such a qualification, if it is part of the constitutive treaty,32 does not normally entail a privileged position as to the 29 Cf. Schermers and Blokker, supra note 16, p. 37. 30 Compare vclt, Art. 8. Although treaties establishing international organizations form a special category, also in the light of the vclt, this provision seems also applicable to such treaties. One could say that this is a requirement of ‘good faith’. See Klabbers, supra note 20, pp. 90–91. 31 Also, to prevent legal consequences from such a minimum obligation, the United States and Israel informed the un in 2002 that they no longer intended to become a party to the International Criminal Court and Stated explicitly that they have no legal obligations arising from their signature of the Rome Statute two years earlier. See Digest of us Practice in International Law (2002), p. 148. 32 See, e.g., Art. 3 of the un Charter.

Identities Of States In International Organizations

17

position of States who, after the start of the functioning of the organization, are admitted as members, although sometimes the founding members are given a certain distinct legal status. The quite recently concluded treaty on the establishment of the Asian Infrastructure Investment Bank (‘aiib’) does give founding members a basic amount of votes and a privileged position as to the designation of the Directors of the Bank and the members of its Board.33 A State with a special position in relation to an international organization is the host State of the organization. Usually, the host State is one of the founding member States, although there are some remarkable exceptions, such as Austria becoming the host State of the Organization of Petroleum Exporting Countries (‘opec’) and of Switzerland hosting the United Nations since its establishment (only joining the organization in 2002). The rules governing the relationship between the host State and the organization are laid down in headquarters or seat agreements between both parties, often complemented by other special agreements.34 Host States bear special responsibilities for the proper functioning of the international organization, concerning, for instance, the admittance of representatives of member States and the protection of the (functional) immunity of the organization from domestic legal processes. At the same time, the organization and its staff are required to respect the law of the host State. In practice, the implementation of rights and duties of the actors involved often leads to diplomatic and judicial conflicts raising a wide range of questions about the responsibility of the host State vis-à-vis the organization and its staff, as well as of other member States.35 Finally, some treaties do not entail the establishment of an international organization, but rather a cooperation framework. Nevertheless, there still seems to be some distinction between the States and the framework they established. A clear example is formed by agreements including a Conference of Parties (‘cops’) or Meeting of Parties (‘mops’). However, while these conferences may perhaps not qualify as international organizations, “the fact remains

33

34

35

See Articles of Agreement of the Asian Infrastructure Investment Bank, 2015, Articles 3(1b), 28, and 25(1), Schedule B. The Agreement was opened for signature on 29 June 2015. For the text of the Agreement, see: . See, for other examples, Schermers and Blokker, supra note 16, pp. 67–68. See Sam Muller, International Organizations and Their Host States, Aspects of Their Legal Relationship (Brill; Nijhoff, The Hague, 1995); Schermers and Blokker, supra note 16, pp. 1072–1075. See, generally, Phillipe Sands and Pierre Klein, Bowett’s Law of International Institutions (5th ed.) (Sweet & Maxwell, London, 2001) pp. 486–512.

18

Wessel and Dekker

that at the same time cops/mops have been endowed with the competence to adopt binding decisions”.36 Or, as another observer held: Like treaties, they comprise a specific normative framework of prescriptions that are particularly suitable to organizing internationally coordinated behaviour within a limited issue-area. Like international organizations, they provide a permanent mechanism for changing these normative prescriptions.37 In other words, in some cases ‘decisions’ can be taken (rather than ‘agreements’ being concluded), which may hint at a distinctive position of the cops/mops in relation to the participating States. 3.2 States as Members of International Organizations Overall, States will obtain the status of ‘member State’ of an international organization once they have expressed their consent to be bound by the constitutive treaty (or treaties) and when all other conditions for the entry into force of the treaty (or treaties) are fulfilled. One of those conditions usually is a minimum number of State ratifications. As members of an international organization, States’ legal responsibilities are substantially expanded. Basically, members “have to behave as good members, a duty which can be seen as part of a modern general principle of law: the duty to cooperate”.38 At the same time, member States have rights. In particular, they have the right to be represented in at least one decision-making organ of the organization — for example, the un General Assembly — and, to some extent, in other organs. Not surprisingly, the ‘member’ element is particularly clear in relation to the decision-making procedures in international organizations. Decision-making procedures need to be followed and, upon taking their seat, member States are part of the international organization. Often, a distinction is made between different voting procedures. Thus, in situations of unanimous voting, member States would have retained their ‘State’ identity more than when decisions are taken by majority voting. Yet, we would argue that this distinction is far less relevant than is often assumed. Decision-making takes 36

Nikolaos Lavranos, Legal Interaction between Decisions of International Organizations and European Law (Europa Law Publishing, Groningen, 2004) p. 81. 37 Thomas Gehring, ‘International Environmental Regimes: Dynamic Sectoral Legal Systems’, (1990) 1 Yearbook of International Environmental Law pp. 54–55. 38 Schermers and Blokker, supra note 16, p. 118. As these authors rightly mention, Art. 3 of the un Charter makes this duty explicit.

Identities Of States In International Organizations

19

place on the basis of the rules of the organization and the ‘member State’ identity reveals itself through the participation in that decision-making. In the previous section we argued that Boards — as the non-plenary organs of an organization — particularly strengthen the autonomy international organizations may enjoy from their member States. Precisely because of their non-plenary nature, these Boards rely less on difficult compromises among a large number of member States, and are better able to focus on the institutional objectives rather than on individual national political preferences. Yet again, the situation is not black and white, and the autonomy of an organization may, for instance, be mitigated by the fact that national interests continue to play a (crucial) role even in non-plenary organs (the un Security Council providing a prime example). Furthermore, it has been noted that, even with regard to non-plenary bodies deciding on behalf of the whole membership, the issue of the dual identity of ‘member States’ is present. As held by some observers, on the Boards of international financial institutions for instance, the dichotomy inherent in the role of the Executive Directors — the members of these Boards — is clearly noticeable. In a 2008 report prepared by the Independent Evaluation Office of the imf analyzing governance issues in that institution, the self-perception of Board members was described as follows: More than half of Board members reported that they occasionally face a conflict between their role as representatives of their authorities and their role in upholding the Fund’s institutional interests … while in practice all Directors clearly understand their representational role, their status as officers of the Fund is less clear.39 In a similar vein, the famous independence of the members of the eu’s Commission must be seen in relative terms. It has been argued that since members are “(c)hosen because of distinguished and well-connected prior careers, they have a list of professional and political contacts, with over twothirds chosen from a party in government at the time of appointment”.40 39

Ana Sofia Barros and Cedric Ryngaert, ‘The Position of Member States in (Autonomous) Institutional Decision-Making: Implications for the Establishment of Responsibility’, (2014) 11(1) International Organziations Law Review pp. 53–82. See also Independent Evaluation Office of the imf, Report ‘Governance of the imf: An Evaluation’ (2008) p. 16, available at: . 40 Arndt Wonka, ‘Technocratic and Independent? The Appointment of European Commissioners and its Policy Implications’ (2007) 14(2) Journal of European Public Policy p. 169, at p. 178.

20

Wessel and Dekker

It is not uncommon for the plenary general congress or assembly to be viewed as representing the more ‘intergovernmental’ dimension of an international organization, with the non-plenary board reflecting a ‘supranational’ element. Political scientists in particular, would perhaps emphasise the ‘conference’ idea of a plenary organ, in which negotiations take place under the constant shadow of power play. Lawyers would generally have a tendency to point to the rules of the game that have to be followed and underline the fact that even plenary bodies are organs of an international organization in which States function as ‘members’ once they occupy a ‘seat’. Indeed, the existence of elements such as ‘organ’, ‘membership’ or ‘decision’ all imply a distinction between the participating States and the international entity. In fact, there is a strong inter-linkage between these elements. Organs act on behalf of the international entity, and are not to be equated with the (collectivity of) States, in which case the term ‘conference’ would be more appropriate. The notion of ‘membership’ underlines a similar distinctiveness of the international entity (one can only be a member of something else). This seems to allow for the conclusion that for an international entity to be regarded as existing separately from its member States, the entity must have a decision-making organ that is able to produce a ‘corporate’ will, as opposed to a mere ‘aggregate’ of the wills of the member States. The outcomes of collective decision-making processes must allow for their ascription to an international organ rather than to the collectivity of the participants.41 Yet, it remains difficult to neglect the Janus-faced nature of international organizations, and it has been duly noted in doctrine that “[a]lthough the separate personality of an international organization ‘establishes the will of the organization as a whole’, this does not mean that the various ‘member State

41

Cf. Jan Klabbers, ‘Presumptive Personality: The European Union in International Law’, in M. Koskenniemi (ed.), International Law Aspects of the European Union (Kluwer Law International, The Hague, 1998), pp. 231–253, p. 243; Esa Paasivirta, ‘The European Union: From an Aggregate of States to a Legal Person?’ (1997) 2 Hofstra Law & Policy Symposium, pp. 37–59; and Manuel Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’, (1997) 44 British Yearbook of International Law p. 145: “It is the existence of organs which makes it possible to distinguish international organizations from other looser associations of States like, for example the British Commonwealth”. On the distinction between States and member States and also the importance of ‘legal personality’ in that respect, see Ramses A. Wessel, ‘Revisiting the International Legal Status of the eu’ (2000) 5(4) European Foreign Affairs Review pp. 507–537.

Identities Of States In International Organizations

21

wills’ that led to it lose their relevance”.42 The relationship between States and international organizations certainly is complex. When using its veto right in the un Security Council, the Russian representative clearly acts on behalf of its State; yet, in that particular setting, it is perhaps first and foremost a member State, who’s veto right is based on the rules of the organization. It is, therefore, not so easy to distinguish the different identities of States; and they may even coincide in certain situations. Yet States are certainly aware of their different identities. The moment the member States of the eu realize that their organization is not competent to decide on a certain issue and they nevertheless feel the need for that discussion, the particular decision is not taken by the Council of the European Union, but they may adopt a “Decision of the Heads of State or Government, meeting within the European Council”, as recently shown again in relation to the ‘Brexit’-deal with the UK (discussed in Stefani Weiss and Steven Blockmans, ‘The EU deal to avoid Brexit: Take it or leave’, CEPS Special Report, No. 131 / February 2016). The member States’ representatives do not leave the room, but for those particular items on the agenda one may argue that their identity changed. 3.3 States as Former Members of International Organizations Just like with the creation of international organizations, the status of States is clear once they are no longer a member State. In the context of the eu this issue is particularly topical with the debates on a possible ‘Grexit’ or ‘Brexit’. Yet, the question is whether former member States immediately lose their ‘member’ obligations and rights upon leaving the organization. This will certainly depend on the ‘exit agreement’ concluded between the organization and the member State, but in general one could foresee situations in which the State will be bound to some rules in the same way as its former fellow member States. This will particularly be the case during a transition phase in which third parties (including businesses, individuals) should be able to rely on previous arrangements. At the same time, leaving an organization may not be that easy. One may not simply disregard its ‘membership’ and act like a sovereign State only. This again has to do with the fact that the constitutive agreements of international organizations are not merely to be seen as a contractual relationship between 42

Barros and Ryngaert, supra note 39; cf. also Jan Klabbers, ‘Autonomy, Constitutionalism and Virtue in International Institutional Law’, in R. Collins and N. White (eds.), supra note 8, p. 121: “there is always an element of artificiality in making a distinction between organizations and their members”. See also Niels Blokker, ‘International Organizations and their Members’ (2004) 1 International Organizations Law Review pp. 139–161.

22

Wessel and Dekker

States, but as a ‘treaty +’: an agreement that at the same time created a new international legal entity. A prime example is given by the eu, which prior to the 2009 Lisbon Treaty, did not contain a provision dealing with members leaving the organization. Conceptually, the treaty modification is interesting. Before the Lisbon Treaty, the Treaty needed to be changed to allow a member State to leave (as member States are mentioned by name in the eu-Treaty). This could only be done by an Intergovernmental Conference of States (hence, by taking a step outside the organization). These days, Article 50 of the euTreaty provides for the possibility of an agreement, not between the States, but between the eu and the departing member State.43 This underlines that the ‘contract’ these days is no longer (merely) with the fellow member State, but rather with the organization. A similar situation may occur in the case of a dissolution of the international organization altogether. While this hardly happens, as in most cases functions of international organizations are simply transferred to another or new organization,44 it is clear that, once an organization ceases to exist, there is no sense in speaking of ‘membership’. Yet again, the situation may not be clear-cut: as we have seen, one of the traditional criteria to establish whether or not an international entity could be regarded an international organization is that it should be established by an international agreement. Hence, one could argue that the dissolution and succession of international agreements is a question to be settled by the general rules of treaty law with ‘States’ as the main actors. Indeed, the law of treaties may still play a role when conflicts  between the contracting parties arise with regard to, for instance, the possibility of terminating or suspending a treaty.45 In practice, however, in almost all cases of dissolution and succession, arguments are drawn from the constitutive document of the organization or from ‘international institutional law’, the body of rules and principles representing the ‘unity in diversity’46 of the law of international organizations. Thus, Amerasinghe, for instance, argues that “there is a general principle of international institutional law that an organization may be dissolved by the decision of its highest representative 43 44

45

46

See more extensively Adam Łazowski, ‘Withdrawal from the European Union and Alternatives to Membership’, (2012) 37(5) European Law Review pp. 523–540. Ramses A. Wessel, ‘Dissolution and Succession: The Transmigration of the Soul of International Organizations’, in J. Klabbers and Å. Wallendahl (eds.), supra note 10, pp. 342–362. Cf. e.g. Art. 59 (1) of the vclt on the ‘Termination and suspension of a treaty implied by conclusion of a later treaty’; or the possible application of the ’clausula rebus sic stantibus’ (Art. 62). The subtitle of Schermers and Blokker, supra note 16.

Identities Of States In International Organizations

23

body (the general congress), when there are no provisions governing dissolution”.47 4

Functions of (Member) States in Exercising the Tasks of International Organizations

4.1 Law-Making The idea that there is a difference between law-making through international organizations and law-making by international organizations is far from new and reveals the identities member States may have in this respect as international co-legislator.48 While we would maintain that States act as ‘member States’ in both situations, as far as the establishment and formulation of the principles and rules are concerned, conceptually, their roles are slightly different (1) when they allow the organization to take ‘decisions’, and (2) when using the international organization as a ‘framework’ to negotiate and establish new international norms, often in the form of ‘agreements’ or ‘conventions’. 4.1.1 Allowing the Organization to Take Law-Making Decisions While many international organizations were set-up as frameworks to allow States to institutionalize cooperation in a specific field, decisions of international organizations are increasingly considered a source of international law.49 Indeed, this seems to lie behind the term institutional law-making.50 Yet, traditionally, law-making is not seen as a key-function of international organizations.51 The reason is that most international organizations have not been 47 48

49

50 51

Chittharanjan Felix Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press, Cambridge, 2005) p. 568. See for a recent classification Roberto Virzo, ‘The Proliferation of Institutional Acts of International Organizations: A Proposal for Their Classification’, in R. Virzo and I. Ingravallo (eds.), Evolutions in the Law of International Organizations (Brill Nijhoff, Leiden-Boston, 2015), pp. 293–323. For a theoretical perspective, see also Ige F. Dekker and Ramses A. Wessel, ‘Governance by International Organizations: Rethinking the Source and Normative Force of International Decisions’, in I. F. Dekker and W. G. Werner (eds.), Governance and International Legal Theory (Martinus Nijhoff Publishers, Leiden-Boston, 2004) pp. 215–236. See, for a further development of this notion, R.A. Wessel, supra note 10. Not even of the United Nations. See Oscar Schachter, ‘The un Legal Order: An Overview’ in C. Joyner (ed.), The United Nations and International Law (Cambridge University Press, Cambridge, 1997) p. 3: “Neither the United Nations nor any of its specialised agencies was conceived as a legislative body”.

24

Wessel and Dekker

granted the power to issue binding decisions, as States were believed not to have transferred any sovereignty. Nevertheless, these days it is undisputed that many organizations do ‘exercise sovereign powers’ in the sense that they not only contribute to law-making by providing a framework for negotiation but also take decisions that legally bind — or otherwise exert legal force on — their member States.52 Organizations with some competence to take legally binding decisions which go beyond a mere application of the law include the eu, the un, the World Health Assembly of the who, the Council of the icao, the oas, the weu, nato, oecd, upu, wmo and imf.53 In addition, as Alvarez’s survey reveals,54 it includes standard setting by the imo, the fao, the icao, the ilo, the iaea, unep, the World Bank, and the imf. This reveals the complexity of institutional law-making; it is not just about clearly legally binding decisions of international organizations. Institutional law-making may be more subtle in the sense that States have no choice to accept (often technical) rules and standards to be able to play along. There are the well-known and still important resolutions of the un General Assembly as the 1948 Universal Declaration of Human Rights and the 1970 Declaration on Principles of International Law, the oecd Guidelines for Multinational Enterprises,55 and the — probably less well known, but also legally important — Core Principles for Effective Banking Supervision of the Basel Committee.56 4.1.2

Using the International Organization as a Framework for Law-Making International organizations are used by their member States to develop international law through the more traditional forms, in particular conventions and agreements. As the first phase in the process of international law-making, the organization often adopts a resolution in which general norms are formulated 52 53

54 55

56

Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford University Press, Oxford, 2005). Cf. Schermers and Blokker, supra note 16, pp. 822–832; Amerasinghe, supra note 47, pp. 172–175; Nigel D. White, The Law of International Organizations (2nd ed.) (Manchester up, Manchester, 2005) pp. 161–168. José E. Alvarez, International Organizations as Law-Makers (Oxford University Press, Oxford, 2006) p. 218. Originally the Guidelines were adopted in 1976, but were later revised and updated several times. See for the latest version, oecd Guidelines for Multinational Enterprises, oecd 2011, available at: mneguidelines.oecd.org/text. See Joost Pauwelyn, Jan Wouters and Ramses A. Wessel (eds.), Informal International LawMaking (Oxford University Press, Oxford, 2012).

Identities Of States In International Organizations

25

with respect to a specific topic, which are subsequently elaborated upon in an international convention. The drafting of the convention can then be done by a standing or ad hoc commission of the organization, while the final negotiations and adoption of the text of the convention takes place at a conference, convened and organized by the international organization. Examples include the numerous un declarations and conventions on human rights and the un declaration and convention on the law of the sea or on outer space. Of course, a lot of conventions are established within international organizations without preceding resolutions: for example, the work of the International Law Commission of the un on the law of treaties and international responsibility. Apart from the un, other international organizations assist their member States in drafting conventions — with different success rates — such as the World Trade Organization or the Council of Europe. For the most part, during these law-making processes, States act in their capa­city as member States. Not only in drafting and adopting the r­ esolutions — which are clearly legal acts adopted by the organization, on the basis of strictly defined procedures and often without the need for consensus — but also in drafting and adopting the text of the convention. However, in the final phase of the process the agreements or conventions are often still in need of approval via national procedures and ratification, which in the end renders the ‘State’ identity decisive. In that respect, the situation differs from the one discussed in the previous sub-section, where decisions are adopted by an organ of an international organization (irrespective of the voting modalities) and States act as member States throughout the process of law-making. In a way, using the organization as a framework for law-making to some extent may come quite close to the cops and mops we described above. 4.2 Realization of Legal Acts Member States also play a crucial role in the process of the realization of the legal acts of international organizations. Again we can point to (at least two) different roles: (1) member States as ‘implementers’ of legal acts to effectuate them, and (2) member States as ‘agents’ of an organization. 4.2.1 Member States as ‘Implementers’ In many cases, the realization of legal acts in social practice often depends primarily on the transfer of the act, one way or the other, into national legislative or administrative measures. Member States are in control of those transformation processes. It depends on the legal force of the legal act whether member States have an obligation or ‘only’ have to consider in good faith to implement the act in their national legal system; the legal consequences for States

26

Wessel and Dekker

will differ if they refrain from implementing the decision of the organization. While in the implementation of the acts the ‘State’ identity is clear (as it will involve national legislative/constitutional procedures), the obligation as such flows from the fact that the particular State is a member of the international organization. Again, identities overlap, although one could distinguish the identities on the basis of different stages in the process of implementation. Examples include the implementation of sanctions. Thus, the famous Security Council Resolution 1267 (1999) on the situation in Afghanistan provides that all the States must, in particular: freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need (para. 4b). Other organizations use similar ways of calling upon the members to implement a sanctions regime. Thus, in relation to the Russian invasion of Crimea, the eu ordered its member States to “prevent the entry into … their territories of the natural persons responsible for actions which undermine … the territorial integrity … of Ukraine, and of natural persons associated with them, as listed in the Annex”.57 Yet examples go beyond sanctions and are in fact numerous. In many cases, international organizations ‘call upon States to implement’ a certain decision and adapt their domestic laws accordingly. A special situation is formed by eu Directives. The core of the legal character of this form of decisions of international organizations — which are binding as to the result to be achieved — is the transposition in national law, with, in most cases, the aim to largely harmonize the legal systems of the eu member States in a certain area.58

57

58

Council decision of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (2014/145/cfsp). See Art. 288 of the Treaty on the Functioning of the eu.

Identities Of States In International Organizations

27

4.2.2 Member States as ‘Agents’ of the Organization Member States may — and sometimes must — assist the organization in the realization of certain operational activities on which the organization has decided. The difference with the aforementioned identity is that, in this case, it is not primarily located in the legal world, but is directly connected to tasks in social reality. In other words: there is simply a defined result. Thus, the organization may call on member States because, for instance, it lacks the financial or substantial means to perform the activities itself. A prime example is formed by a un authorization to employ a peacekeeping or peace-enforcement operation.59 One could argue that in these situations member States (or even nonmembers or regional organizations or arrangements) act as ‘agents’ of the organizations. In a way, they adopt the identity of the organization which itself lacks the ability or the means to implement a decision. This role of a military agent is one of the most important and controversial legal identities of member States in the framework of the responsibility of international organizations – extensive analyses of which are also in this special forum.60 The above-­ mentioned example of eu member States stepping in at international organiza­tions of which the eu itself cannot become a member despite the fact of its exclusive competences in that area also fits the notion of member States acting as ‘agents’ of the organization. 4.3 The Settlement of Disputes The settlement of disputes is generally seen as a key function of international organizations.61 In fact, one of the reasons for this is that, as ‘member States’, it is not very helpful when States have to settle their disputes related to the work or the objectives of the organization elsewhere. As phrased by Klabbers: “within an organization made up of a relatively small number of States, strict judicial settlement is somehow incongruous: if those States embark on a common project, it may not be a particularly good idea to have them meet in court on a regular basis”.62 59

Cf. Niels M. Blokker, ‘Is Authorization Authorized? Powers and Practice of the un Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing”’ (2000) 11(3) European Journal of International Law pp. 541–568. 60 See further the contributions to this special forum by Blokker, d’Aspremont, Dannenbaum and Tzanakopoulos. 61 See for a more extensive overview Elisa Tino, ‘Settlement of Disputes by International Courts and Tribunals of Regional International Organizations’, in R. Virzo and I. Ingravallo (eds.), supra note 49, pp. 468–508. 62 Klabbers, supra note 22, p. 229.

28

Wessel and Dekker

Again we can discover (at least) two identities of States: (1) member States as a party to a dispute with other member States or with (an organ of) the organization, and (2) member States as mediators for the resolution of disputes between other member States (or within another member State) upon a request of their international organization. 4.3.1 Member States as Parties to a Dispute First of all, international organizations may have established mechanisms to settle disputes between their members. Prominent examples include the International Court of Justice (‘icj’) and the wto Dispute Settlement Body. Although the parties in nearly all cases before the icj are members of the United Nations, they act, we would argue, only as members in disputes about the interpretation or application of the un Charter or related instruments. So, for instance, in cases about the use of force or other military activities, the parties are primarily to be seen in their identity as un members, even, we would say, in cases where the Court cannot apply the un Charter as such but has to judge on the basis of international customary law on the use of force.63 Other examples can be found with regard to the wto Dispute Settlement Body and most other international judicial organs, including the European Court of Justice.64 Their jurisdiction is primarily based on the constitutive treaty or related instruments of the organization, and often exclusively aims to give authoritative interpretations of the law of the organization concerned, or to decide on the application of those rules. Again, we would argue that the parties in these cases are first and foremost acting as ‘member States’. After all, the only reason that the procedures apply to them is because they are a member of the organization. Yet again, identities may shift. In many cases, the dispute starts as one between ‘States’. Think for instance about a trade dispute between China and the United States. In most cases, the dispute is triggered by measures that are unilaterally taken by a State which, in the trade partner’s view, is violating certain trade rules. The idea that it all starts with States is underlined by the fact that these States sometimes engage in forum shopping to find the regime that fits their goals best. Thus, in the so-called ‘swordfish dispute’ between the eu and Chile, the dispute was brought before both a wto panel and the International Tribunal

63 64

See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 27 June 1986, International Court of Justice, [1986] icj Reports p. 14. But cases between eu member States before the ecj on the basis of Art. 259 of the Treaty on the Functioning of the eu are rare. See Paul Craig, Garcia De Burca, eu Law (5th ed.) (Oxford University Press, Oxford, 2011) p. 432.

Identities Of States In International Organizations

29

for the Law of the Sea (‘itlos’),65 but in the end it was resolved on the basis of an amicable settlement between the two parties.66 Interestingly enough, related to the question of responsibilities is the fact that when eu member States violate wto-rules they are usually ‘substituted’ by the eu in the settlement of a dispute. Indeed, in these cases the international organization takes over from its member States; or one may even argue from the member States of another organization, the wto. In the vast majority of cases, a dispute is not about the constitutive instrument of the organization (e.g. the un Charter) but about the interpretation and application of other treaties and/or rules of international customary law, such as the law of the sea, the genocide convention, diplomatic and consular relations law, etc. In these cases the parties are primarily acting as ‘States’. Sometimes the situation is mixed. The Lockerbie case, for instance, was brought before the icj by Libya as a dispute about the interpretation and application of the Montreal Convention on the suppression of unlawful acts against the safety of civil aviation, but, at least indirectly, the main underlying legal question concerned the competence of the Court to review the powers of the un Security Council.67 Apart from disputes between States inter se, States may also end up in proceedings against the international organization. Within the legal system of the eu, member States are allowed to challenge the legal acts adopted by the Institutions of the Union before the European Court of Justice, and if the challenge is well founded, the Court can declare the act concerned void.68 In other international organizations, member States do not have this far-reaching possibility. However, in the United Nations, and in most of the Specialized Agencies, member States can try to convince a majority in one of the organs of the organization to ask the icj for an advisory opinion on a disputed legal

65

66 67

68

Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union), 2000–2009, International Tribunal for Law of the Sea, Case No. 7, available at: . See EU Press Release: . See Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom/United States of America), 27 February 1998, Preliminary Objections, International Court of Justice, [1998] icj Reports p. 9, at p. 115. See further, Nigel White, ‘To Review or Not to Review: The Lockerbie Cases before the World Court’ (1999) 12 Leiden Journal of International Law p. 401. See Art. 263 and 264 of the Treaty on the Functioning of the eu.

30

Wessel and Dekker

question.69 In the consequent proceedings before the Court, member States then have the opportunity to present their views on the question, both in writing and orally. The Court has adopted a broad interpretation of its jurisdiction in such matters and has, on this basis, delivered quite a few important opinions including, for instance, the legal personality of the United Nations,70 the legal basis for peace-keeping operations,71 the illegality of racial discrimination and colonialism72 and the legal consequences of the wall built by Israel in Palestine.73 Although the advice of the Court is not always followed by the member States (or the organization for that matter), member States are reluctant to make use of the option to request for an opinion.74 We would argue that, in these proceedings, the primary identity of States is the one of ‘member State’. The simple fact is that the procedures are usually open to organs of the organization and that States can only participate in their capacity as a ‘member State’. In addition, the questions raised in most cases primarily relate to the functions of the organization in relation to its members. Yet again, there may be a situation in which the ‘State’ identity is more prominent. This would arguably be the case when the organization has (presumably) acted ultra vires. But, as Klabbers has noted, “there is fairly little legal protection against acts adopted ultra vires, precisely because many acts which might be, on the face of it, ultra vires, are nonetheless accepted by the organization’s membership”.75 4.3.2 Member States as Mediators for the Resolution of Disputes The first step in the resolution of disputes between member States inter se, between member States and their international organization, or within a member State is via traditional means of negotiation. In general, these negotiations can take place at the premises of the organization, assisted by the 69 70

See Art. 96 of the un Charter. Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, International Court of Justice, Advisory Opinion, [1949] icj Reports p. 174. 71 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), 20 July 1962, International Court of Justice, Advisory Opinion, [1962] icj Reports p. 151. 72 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970), 21 June 1971, International Court of Justice, Advisory Opinion, [1971] icj Reports 1971 p. 16. 73 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, International Court of Justice, Advisory Opinion, [2004] icj Reports p. 136. 74 Since 1945, the Court has delivered a total of 26 advisory opinions, of which 11 were delivered in the first 15 years. 75 Klabbers, supra note 20, p. 186.

Identities Of States In International Organizations

31

organization’s secretariat. But sometimes a member State, on the explicit or tacit request of the international organization, will host the parties to the dispute and/or make an offer to the parties to mediate in the conflict. This is a more or less constant factor in all attempts to solve the conflict in the Middle East but it has, for example, also occurred with regard to the peace negotiations between the Colombian government and the farc, and the negotiations between Iran and the permanent members of the Security Council, Germany and the eu about an Iranian nuclear non-proliferation regime and the simultaneous lifting of the sanctions against Iran. Another phenomenon is formed by the international tribunals, through which a member State facilitates an international organization in fulfilling one of its tasks. This will usually entail more than just providing for the premises and involves all kinds of jurisdictional facilities. The Netherlands has extensive experience in this area, not only with the permanent judicial bodies as the icj and the International Criminal Court, but also with several ad hoc tribunals, including the International Criminal Tribunal for the former Yugoslavia, the Iran-United States Claims Tribunal, and the Scottish court for the Lockerbie trial. In particular in relation to those issues, the ‘State’ identity becomes more visible as jurisdictional questions often directly relate to Statehood. 4.4 Member States as ‘Law Enforcers’ International organizations are often blamed for their weak enforcement measures. Indeed, in most cases, States have been willing to establish an international organization to facilitate their cooperation and yet have been reluctant to endow the organization with mechanisms to force them to live up to their obligations. Not only do (member) States play a central role in the realization of the decisions of international organizations but they also play an almost exclusive role in the enforcement of the law of the organization. Perhaps ironically, a prime example is formed by the most ‘supranational’ organization: the eu. Even for the enforcement of perhaps the most supranational part of European law, eu competition law, the European Commission has only a small office at its disposal and depends heavily on the efforts of its member States to enforce eu law.76 5 Conclusion In the debates on the responsibility of member States of international organizations, the different identities of States play a crucial role. At the same time, it 76

See Craig & De Burca, eu Law, supra note 65, pp. 1005–1010 (with further references).

32

Wessel and Dekker

remains not only difficult to clearly separate the ‘State’ and ‘member State’ identities in all situations but also to distinguish between the different roles of member States. This is, of course, nothing new and flows from the famous Janus-faced nature of international organizations. It has been duly noted by Ryngaert and Barros, for instance, that “[a]lthough the separate personality of an international organization ‘establishes the will of the organization as a whole’, this does not mean that the various ‘member State wills’ that led to it lose their relevance.’77 We should also keep in mind the warning by Condorelli and Cassese that: Although the limits to the sovereignty of States are increasingly growing in quantity and depth, partly in consequence of delegations of authority to supranational institutions and agencies, it remains true in substance that those growing limits still ultimately arise from the choice of the States: the choice to bind themselves, the sovereign choice to accept limits to their sovereignty.78 Thus, as Gazzini rightfully pointed out, “the question of international legal personality calls for a yes or no answer .… The question of the autonomy of international organizations from their membership, on the contrary, is a matter of degree”.79 Yet, these observations — true as they may be — mainly relate to the distinction between States and member States. If there is one thing that is evidenced by our short analysis of the different identities, it is that, even in their identity of ‘member State’, States have different roles and functions. More importantly, in the context of this special forum, the relationship they have   with the organization may differ. Indeed, this is not very helpful when it comes  to establishing their possible responsibility. As the subsequent contributions will reveal, the rules on the international responsibility of 77

78

79

Barros and Ryngaert, supra note 39. Cf also Jan Klabbers, ‘Autonomy, Constitutionalism and Virtue in International Institutional Law’, in R. Collins and N. White (eds.), supra note 8, p. 121: “there is always an element of artificiality in making a distinction between organizations and their members”. Luigi Condorelli and Antonio Cassese, ‘Is Leviathan Still Holding Sway over International Dealings’, in A. Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford University Press, Oxford, 2012) p. 14; in the same volume, José E. Alvarez, ‘State Sovereignty is Not Withering Away: A Few Lessons for the Future’, p. 26. Tarcisio Gazzini, ‘The Relationship between International Legal Personality and the Autonomy of International Organizations’, in R. Collins and N. White (eds.), supra note 8, pp. 207–208.

Identities Of States In International Organizations

33

international organizations take account of the possible responsibility of their members. We would argue, however, that it is important to clearly distinguish between the different identities States may have in different settings, and hope that the short identification presented in this contribution may be helpful in that respect.

chapter 3

Member State Responsibility for Wrongdoings of International Organizations Beacon of Hope or Delusion? Niels Blokker 1 Introduction This contribution will analyze the theme of this special forum against the background of the relationship between international organizations and their members. This relationship is a fundamental theme in the law of international organizations. It is also fundamental in the area of the responsibility of international organizations because it should be clear whether the organizations themselves or their members (or both) are responsible for internationally wrongful acts of organizations. The question of whether members can be responsible for wrongdoings of ‘their’ organization — and if so, under what conditions — is not only important in itself, but also in view of the risk that at the end of the day neither the organization nor its members may want to accept responsibility, leaving those who suffer from these wrongdoings with empty hands. This ‘passing the buck problem’ (to put it colloquially) is well-known in life in general: if things go wrong, there is often a tendency to blame others, rightly or wrongly. This may not only happen in human affairs, but also in international relations. For example, when (in 2000) Gadaf Behrami (born in 1988) was killed and his younger brother Bekir Behrami (born in 1990) was seriously injured in the municipality of Mitrovica (Kosovo) following the detonation of a cluster bomb unit that was left after the 1999 nato air strikes, neither France, nor nato, nor the un accepted responsibility for the failure to carry out necessary de-mining activities.1 In view of the risk for third parties that it may be difficult or 1 In the subsequent proceedings before the European Court of Human Rights, the Court concluded that the ‘impugned inaction’ was in principle attributable to the un (Joined cases Behrami and Behrami v. France, 2 May 2007, European Court of Human Rights, App No. 71412/01 and Saramati v. France, Germany and Norway, 2 May 2007, European Court of Human Rights, App No. no. 78166/01). The Court therefore rejected the view of the un (in its submissions in these cases, the un had concluded that “the impugned inaction could not be attributed to unmik” (the un Mission in Kosovo), “in the absence of the necessary location information from kfor” (para. 120)). Since the un is not a party to the European Convention © koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_004

Member State Responsibility for Wrongdoings

35

impossible to hold international organizations responsible for their own wrongdoings, some have argued in favour of emphasizing a responsibility of the members for such wrongdoings.2 However, it will be argued in this ­contribution that the emphasis should instead be on the responsibility of international organizations themselves. The ‘passing the buck problem’ and the fundamental nature of the relationship between organizations and their members are part of the reason why it is important that the Articles on Responsibility of International Organizations (‘ario’) are now available, in spite of all the criticism of them. They also explain the substance of some of these articles, in particular those that do not have corresponding provisions in the Articles on State Responsibility (such as Articles 17 and 61 on circumvention). The next section of this contribution will focus on one word in the title of this special forum, the word ‘Member’, and will indicate what this implies. Section 3 will look at the risks involved in opening the door too wide in relation to member State responsibility when international organizations commit internationally wrongful acts. Section 4 will briefly discuss the need to remedy the current institutional deficiency in this area of the responsibility of international organizations in the common interest of international organizations and their member States. 2

Member State Responsibility and International Organizations

The title of this special forum is not: ‘State responsibility and international organizations’. It is: ‘Member State responsibility and international organizations’. The issue is the responsibility of states in their capacity as member states of international organizations. In this sentence, the word member is fundamental. If this is not taken seriously, international organizations are not taken on Human Rights, the Court declared the complaints incompatible ratione personae with the provisions of this Convention. This illustrates that the issue of member state responsibility for wrongdoing of an international organization not only has implications for injured parties but also for the remedies that such parties may or may not have before international courts. 2 E.g., Ian Brownlie, ‘The Responsibility of States for the Acts of International Organizations’, in M. Ragazzi (ed.), International Responsibility Today – Essays in Memory of Oscar Schachter (Brill, Nijhoff, 2005) pp. 355–362. Brownlie concludes (at p 362): “The approach which appears to give centrality to the creation of an intergovernmental organization is analytically flawed and unattractive in other ways. It is illogical to suppose that a group of States can manufacture an immunity from responsibility toward third States by the creation of an international legal personality.”

36

Blokker

seriously because the autonomous role that they play would be overlooked and their capacity to perform their functions effectively would dwindle. This would be wrong in a world full of cross-border and global issues, and problems such as, in recent years, Ebola and the fight against is(il), with which no single state can deal alone and for which institutionalized international cooperation is in the common interest. The topic of this special forum must therefore be seen in this larger context. International organizations are created in a particular field because there is some international problem that cannot be solved at the national level alone. There is a virtually endless variety of purposes for which international organizations are established. From the Universal Postal Union and the International Renewable Energy Agency to the United Nations, from nato to the eu, but also from the Association of South East Asian Nations to the Union of South American Nations and from the Cooperation Council of Turkic Speaking States to the European Stability Mechanism and the International Commission on Missing Persons. There are many organizations that essentially serve as fora for regular policy consultations amongst the members. A number of international organizations fulfil standard-setting activities, from one of the earliest organizations, the International Bureau of Weights and Measures (‘bipm’), to the International Labour Organization and the Codex Alimentarius Commission to the International Organization of Vine and Wine. There are also a number of organizations that perform projects (such as the World Bank) or activities such as peacekeeping or enforcement operations. In all these international organizations, which perform widely diverging functions, the relationship between members and the organization is essential, even existential. Without their founders, international organizations would not exist; without international organizations, their members would not be able to properly deal with many cross-border issues and problems. It is mostly the members who decide to use their organizations to meet presentday challenges, but this can only be effective if these organizations enjoy the  necessary autonomy. Concrete recent examples are the decisions of the un  Security Council that the Ebola outbreak in Africa3 and isil terrorism

3 un Security Council Resolution 2177 (2014), un Doc S/res/2177 (on the outbreak of the Ebola virus in, and its impact on, West Africa,). In it, the Security Council determined “that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security” (preamble). See also Security Council Resolution 2170 (2014), un Doc S/res/2170 (on threats to international peace and security caused by terrorist acts by Al-Qaida).

Member State Responsibility for Wrongdoings

37

constitute a threat to international peace and security.4 The measures taken by the Security Council can only be effective if the un enjoys the necessary ­autonomy, if the measures taken are indeed un measures and if they are seen as such, rather than measures by some individual states. Since the 1980s and 1990s, it has become more clear, not only in theory but also in practice, that the activities of certain organizations, in particular those that perform projects or activities such as peacekeeping or enforcement operations, may result in harm. Banks and tin brokers suffered from the collapse of the Tin Council; and the un could not prevent the genocide that was committed in Srebrenica. While in 1963 Roberto Ago could still state within the ilc that it was “questionable whether [international] organizations had the capacity to commit international wrongful acts”,5 this statement is now long out of date. Therefore, it is to be welcomed that the International Law Commission (‘ilc’) has, in 2011, adopted the ario. These articles have been much criticized.6 However, it is submitted that most of the criticism is unfounded. To the extent that this criticism is justified, it is outweighed by the most important advantage of the ario: it provides a set of rules that has been prepared thoroughly in a multilateral process, within the ilc and the General Assembly of the un. Without the ario, national and international courts would not have a 4 un Security Council Resolution 2178 (2014), un Doc S/res/2178 (on threats to international peace and security caused by foreign terrorist fighters). In Resolution 2178, the Security Council reaffirmed that “terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security” (preamble) and took measures against Al Qaida, isis and the Al-Nusrah Front. In the Security Council meeting in which Resolution 2177 was adopted, the un Secretary-General stated: “The Ebola crisis has evolved into a complex emergency with significant political, social, economic, humanitarian and security dimensions. The suffering and spill-over effects in the region and beyond demand the attention of the entire world. Ebola matters to us all … the spread of the disease is outpacing the response. No single Government can manage the crisis on its own. The United Nations cannot do it alone”: Report of the un Security Council on its 7268th meeting on Peace and Security in Africa – Ebola, un Doc S/pv.7268 (2014), pp. 2–3. In the Council meeting in which Resolution 2178 was adopted, us President Obama stated: “if there was ever a challenge in our interconnected world that cannot be met by one nation alone, it is this one – terrorists crossing borders and threatening to unleash unspeakable violence”: Report of the un Security Council on its 7272nd meeting on Threats to International Peace and Security Caused by Terrorist Acts, un Doc S/pv.7272 (2014). 5 International Law Commission, Report of the International Law Commission Covering the Work of its Fifteenth Session, 6 May–12 July 1963, with Annexes: (1963) 2 Yearbook of the International Law Commission p. 229, at p. 234. 6 See e.g. some of the contributions to a special edition of this journal devoted to the ario: (2012) 9 International Organizations Law Review pp. 1–85.

38

Blokker

proper legal framework in cases of claims against international organizations and their members. Without the ario, these courts would only have the State responsibility articles as a legal framework applicable to the conduct of States for their own conduct, not for their conduct as member states of an international organization nor for the conduct of the organization itself. They would perhaps have applied mutatis mutandis the State responsibility articles or customary international law. But the outcome of such a scenario would have been more uncertain and more fragmented than the current reality, in which national and international courts can apply the ario. Even though these articles are not binding and are only partly a codification of customary law, they provide at least a common ‘quasi legislative’ framework that now has to develop further in practice. The un has produced the ario (the General Assembly has ‘taken note’ of the articles as adopted by the ilc). It is now for international organizations and their members, and for courts in member states as well as international courts and tribunals, to apply these rules. It is a fundamental principle that international organizations are responsible for their own wrongdoings. A key provision of the ario is therefore Article 3: “Every internationally wrongful act of an international organization entails the international responsibility of that organization”.7 However, who determines whether an organization has committed an internationally wrongful act for which it is responsible? It is particularly in such an instance that the institutional deficiency of the present international legal order is tangible. There are responsibility rules — the ario — but hardly any responsibility institutions, as will be further discussed in Section 4 below. Normally, the organization itself determines whether or not it has committed an internationally wrongful act for which it is responsible. In doing so, behind the organization’s veil, members may play an important role, directly or indirectly. Their role is also visible whenever an organization would decide that it is responsible and that it must make reparation for the injury caused by its internationally wrongful act. According to Article 40(2) of the ario, the members of the organization need to ‘provide the necessary funds’ to enable the organization to make such reparation. 3

Don’t Throw the Baby Out with the Bathwater

Against this general background, this section will analyze, more specifically, the main risk involved in opening the door too much to member state 7 Emphasis added.

Member State Responsibility for Wrongdoings

39

responsibility when international organizations commit internationally wrongful acts. The main risk is, essentially, that the baby is thrown out with the bathwater. Who is the baby? What is the risk? Twenty years ago, Rosalyn Higgins defined this as follows: if member States know that they are potentially responsible for acts of an international organization, “they will necessarily intervene in virtually all decision making” by international organizations, and the latter’s “independent personality would be likely to become increasingly a sham”.8 The very idea behind the creation of an international organization is to cooperate not purely on an ad hoc basis, as States, but rather on a more permanent basis, as member States of a newly created separate legal entity. Powers are attributed to organs of the organization that take decisions expressing a volonté distincte. By renouncing some of their sovereignty in this way, member States are better able to deal with cross-border issues and problems. However, this also implies that the members cannot and must not control each and every single decision taken by the organization. If they became ‘control freaks’, this would paralyze the organization. If member states were to be responsible for internationally wrongful acts committed by international organizations, they would want to control more directly the operation and decision-making of those organizations. In short, the independent personality of international organizations would “become increasingly a sham”, and so would the capacity of the organization and its members to deal with a growing number of cross-border issues and problems. This fundamental concern is recognized in the ario which, as mentioned, states in Article 3: “Every internationally wrongful act of an international organization entails the international responsibility of that organization”, not “of its members” (italics added). This fundamental rule must be taken seriously and should not be undermined. In the relationship between the responsibility of international organizations and the responsibility of their members, the responsibility of the organization is the rule, and member State responsibility is the exception. In his fourth report for the ilc, Special Rapporteur Gaja gave an overview of the relevant practice and views in literature which led him “to the conclusion that only in exceptional cases could a State that is a member of an international organization incur responsibility for the internationally wrongful act of that organization”.9 More specifically, in its ario commentary, 8 Rosalyn Higgins, ‘The Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations toward Third Parties’, (1995) 66(1) Annuaire de l’Institut de Droit International (Session of Lisbonne) p. 419. 9 un Doc. A/cn.4/564 and Add. 1–2 (2006), para. 96 (reproduced in (2006) 2 Yearbook of the International Law Commission, Part One, quotation p. 124).

40

Blokker

the ilc states: “membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act”.10 Only in Part Five of the ario are a few exceptional situations listed in which members can be responsible for wrongful acts of the organization.11 These are not only theoretical considerations; they may also lead to practical problems. To illustrate this, two examples will be mentioned. The first examples are the judgments by Dutch courts related to the 1995 Srebrenica genocide. In different cases, the Dutch Supreme Court (6 September 2013) and the District Court of The Hague (16 July 2014) decided that the Netherlands was responsible for several specific Dutchbat acts and omissions related to the Srebrenica tragedy.12 In the case before the Supreme Court, the Netherlands government argued that Dutch courts should show restraint in evaluating and reviewing the conduct of Dutchbat. The Supreme Court rejected this argument, stating that there is no basis for judicial restraint under international law.13 More specifically, the Netherlands government argued that being held 10

11

12

13

ario Commentary to Art. 62, para. 2 (emphasis added). In para. 5 of this Commentary, the ilc refers to a resolution adopted in 1995 by the Institut de Droit International, in which the Institut took the position that: “Save as specified in article 5, 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”. Aid or assistance by a state in the commission of an internationally wrongful act by an international organization (Art. 58), direction and control exercised by a state over the commission of an internationally wrongful act by an international organization (Art. 59), coercion of an international organization by a state (Art. 60), circumvention of international obligations of a state member of an international organization (Art. 61), cases in which a member state has accepted responsibility for an internationally wrongful act of an international organization towards the injured party, or in which it has led the injured party to rely on its responsibility (Art. 62). Of these provisions, Art. 61 is the most controversial; for an analysis of this provision, see Odette Murray, ‘Piercing the Corporate Veil: The Responsibility of Member States of an International Organization’ (2011) 8(2) International Organizations Law Review pp. 291–347. Judgments of the Supreme Court of the Netherlands in the case of The State of the Netherlands v. Hasan Nuhanović, bz9225, and in the case of The State of the Netherlands v. Mustafić, bz9228, 6 September 2013, available at: (references below are to the Nuhanović judgment (the Mustafić judgment contains identical paragraphs on the relevant substance)); judgment of the Hague District Court in the case of the Mothers of Srebrenica v. The State of the Netherlands, 16 July 2014, ecli:nl:rbdha:2014:8748, available at: (appeal pending). Nuhanović Judgment, ibid, para. 3.18.3.

Member State Responsibility for Wrongdoings

41

responsible would have “an adverse effect on the implementation of peacekeeping operations by the United Nations, in particular on the willingness of member states to provide troops for such operations”.14 The Supreme Court rejected this argument, stating that “this should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent”.15 Perhaps — the Supreme Court did not say so explicitly — this should be seen against the background of its judgment of 2012 in the Srebrenica case against the un, in which the Supreme Court did not see any room for such judicial assessment since the un enjoyed absolute immunity.16 In such cases, national courts are in an uneasy position: normally they cannot review the acts of international organizations as these organizations enjoy immunity, but neither can the member State(s) be held responsible because the acts concerned have to be attributed to the organization. In these situations it is understandable that, generally, national courts try to avoid being caught in such a ‘sandwich dilemma’, leaving the victims without any remedy. However, in the long run, there may be three disadvantages of the acceptance of membership responsibility in such cases. First, as the Dutch government argued before the Supreme Court,17 this may have an adverse effect on the willingness of member states to provide troops for un operations, certainly in a context such as in Srebrenica, where almost no un member was willing to send troops, and where it was extremely difficult to carry out the mandate. Secondly, more member state responsibility is likely to lead to more member State control, making unified control by the un over the operation more difficult. It would make it more difficult for the un to carry out the overall operation effectively. This is of particular importance in military operations, which have to operate as one and not as a collection of national operations (cf. the Dutch expression ‘de gelederen moeten gesloten zijn’ and the Belgian national motto ‘l’union fait la force’). A third disadvantage is fragmentation. While Dutch courts in some of the Srebrenica cases decided that the Netherlands was responsible for certain specific acts, it is far from certain that a similar result would be obtained if victims of 14 15 16

17

Ibid. Ibid. Stichting Mothers of Srebrenica et al. v. United Nations, 13 April 2012, Case No. 10/04437, available at: . Nuhanović Judgment, supra note 13, para. 3.18.3.

42

Blokker

the cholera epidemic in Haiti (allegedly spread by Nepalese peacekeepers participating in minustah, the un mission in Haiti) were to go to the courts of Nepal. It is therefore uncertain if member State responsibility would help the victims: this would depend on the courts of the troop contributing country concerned. In view of these three disadvantages, international responsibility problems need, first of all, international, not national, responsibility solutions not only for reasons of principle (discussed above) but also for practical reasons. A second example is offered by the International Civil Aviation Organization (‘icao’). icao uses the principle of ‘ultimate State responsibility’. According to icao rules, its member States are responsible for the implementation of icao Standards and Recommended Practices (‘sarps’). Member States may give this power to a regional organization: however, as the icao rules say, “the State retains the responsibility under its duties of sovereignty”.18 In the area of safety oversight, the applicable icao Manual explicitly provides that “only the State has responsibility for safety oversight”,19 “regardless of the level of authority delegated to the rsoo” (Regional Safety Oversight Organization).20 This triggers the question of whether member States would be willing to attribute powers to regional organizations in the area of civil aviation at all if they were to lose control but nevertheless remain ultimately responsible. It is therefore not surprising that research in this field has demonstrated that “[t]he principle of ultimate State responsibility under the Chicago Convention probably contributes to an overall reluctance of States in establishing Regional Aviation Safety Organizations with far reaching regulatory and oversight competences”.21 In view of the need of regional cooperation in this area, in many parts of the world, it seems unavoidable that icao will need to modify its principle of ultimate State responsibility, or at least give it a very narrow interpretation (from which it would be clear that normally the regional organization concerned is responsible for its own acts, in the areas in which States have transferred powers to this organization).22 18

icao, Safety Oversight Manual, Part B (The Establishment and Management of a Regional Safety Oversight Organization), Doc. 9734 (2011), p. xii, available at: (quoted in Mikołaj Ratajczyk, ‘Regional Aviation Safety Organizations’, (dissertation defended at Leiden University, 20 November 2014) p. 216). 19 Ibid., para. 2.1.8. 20 Ibid., para. 4.1.35. 21 Ratajczyk, supra note 18, p. 219. 22 When the ilc prepared the ario, icao, together with a number of other organizations, sent a number of observations to the ilc regarding the text of the draft articles (see e.g.

Member State Responsibility for Wrongdoings

43

These two examples illustrate why it is a serious risk to open the door too wide in respect of member State responsibility. It is in the long-term interest of the member States, the organization, and possible victims to stick to the rule that international organizations themselves are responsible for their own wrongful acts. Member State responsibility cannot be fully excluded, but should be admitted only in the exceptional cases mentioned in Part Five of the ario. However, if organizations lack accountability mechanisms, where such mechanisms are required in view of the activities carried out and in view of real or potential victims and their due process rights, the pressure on national courts may increase to ‘bridge the accountability gap’ and to provide a ‘last resort remedy’.23 It is therefore in the interest of the relevant organizations and their members to have accountability mechanisms in place where necessary. This will be briefly discussed in the final part of this contribution. 4

How to Improve the Current Institutional Deficiency in This Area of the Responsibility of International Organizations?

The conclusion above — that, as a rule, not the member States but the international organizations themselves must be responsible whenever they commit internationally wrongful acts — is of course not the end of the discussion. When victims of such wrongful acts, no matter whether they are individuals, states or other entities, bring a claim against an international organization, it may happen that the organization denies the wrongful act or its responsibility for it. Even if the organization accepts its responsibility and makes reparation for the injury, a dispute may arise about such reparation, for example about the quantum of any compensation awarded. How are such disputes resolved? A distinction must be made between rules and institutions for specific international organizations and general rules and institutions. First of all, it is important to take into account that there are currently hundreds of international organizations, of which only a limited number carry out activities themselves that may result in harm. The impression is sometimes given — in particular, but not only, in the media and in public

23

ilc, Report on the Responsibility of International Organizations, un Doc A/cn.4/637). However, these observations did not relate to the issues discussed here. Cf. for a similar view in the context of the immunity of international organizations: August Reinisch, ‘To What Extent Can and Should National Courts “Fill the Accountability Gap”?’ (2014) 10(2) International Organizations Law Review pp. 572–587.

44

Blokker

debate — that activities of international organizations in general cause or may cause harm, that they often deny responsibility if claims are brought against them and subsequently claim immunity before a national court. This is a popular stereotype. Something similar happened a few years ago, when the Security Council started to impose financial sanctions on individuals without any proper remedies. The impression was given, at times, that this heralded the beginning of a new era in which decisions of international organizations would often directly affect individuals without any remedies being available for these individuals. However, we need to look at the facts. “Facts kick”, as Gunnar Myrdal has written.24 According to the facts, there are hundreds of international organizations that cannot take decisions directly affecting individuals and that cannot directly create harm. What is true, however, is that there are a limited number of important organizations where this  may happen. When the European Communities were created, this was foreseen from the outset and provision was made for proper legal remedies. The same happened to some extent in the case of some other regional ­organizations, such as the Andean Community and the East African Com­ munity. In a limited number of other cases, for example the World Bank and the Security Council, this happened later, long after they were established. But overall the current situation is not one in which we are witnessing a major new general development. However, secondly, in the cases in which specific international organizations do carry out activities that may result in harm, how can disputes that may arise be resolved? In my view, this should happen first and foremost within these organizations themselves: they should provide their own specific, tailormade remedies. Examples are the World Bank Inspection Panel (an independent complaints mechanism for people and communities claiming to be adversely affected by a World Bank project) and the un Ombuds-person (an independent institution reviewing requests to be removed from the Al-Qaida sanctions list of the Security Council’s Al-Qaida Sanctions Committee). The approach should be to create smart, targeted accountability mechanisms where and when this is necessary. If such mechanisms do not yet exist, it may be a problem, in practice, that members are reluctant to create them and engage in what they may see as costly institutional acrobatics. However, the creation and development of the un Ombudsperson has demonstrated that there are at least two reasons why this reluctance may be overcome. First, the organ that is taking decisions affecting individuals may lose its legitimacy and credibility if there are no checks and balances, no remedies. Secondly, and 24

Gunnar Myrdal, Objectivity in Social Research (Random House Trade Paperbacks, 1969) p. 40.

Member State Responsibility for Wrongdoings

45

probably decisively in practice, the organ concerned may no longer be able to perform the relevant functions effectively in the absence of some remedy because national or international court judgments may impede the implementation of the decisions concerned. So, in the end, accountability mechanisms may have to be created for reasons of functional necessity. Nevertheless, thirdly, even though this concerns only a specific number of international organizations, it would seem useful if, in addition to these specific, tailor-made accountability mechanisms, a general mechanism were to be available as a ‘fall-back’ facility to improve the current institutional deficiency in this area. It is important to have in place not only rules but also institutions, not only for specific organizations but also more generally. As far as rules are concerned, the adoption of the ario by the ilc in 2011 satisfied the need for a general framework of rules on the responsibility of international organizations. What are still lacking, however, are institutions. If third parties have claims against or disputes with international organizations, usually the only way to settle it is by ad hoc arbitration. The icj may only provide relief in a limited way by giving an advisory opinion in disputes relating to the immunity of the un.25 International organizations have no locus standi before the icj (and this situation is unlikely to change within the foreseeable future), they normally enjoy immunity before national courts, and most of them do not have their own courts. One way in which this situation could be improved would be to make available a more centralized system for arbitration for responsibility disputes between claimants and international organizations. Actually, such a system is already available: this function could be performed by the Permanent Court of Arbitration (‘pca’). Under its current arbitration rules, the pca is open not only to States but also to international organizations and private parties. Moreover, the pca has some experience in dealing with disputes involving international organizations.26 The pca could provide a forum for claims against international organizations, no matter whether such claims are brought by States, other international organizations or private parties. Its 2012 arbitration rules have a broad scope of application: they cover disputes “in respect of a defined legal relationship, whether contractual, treaty-based, or

25 26

1946 Convention on the Privileges and Immunities of the United Nations, 1 unts p. 15, section 30. For example, Polis Fondi Immobliare di Banche Popolare S.G.R.p.A v. International Fund for Agricultural Development (ifad), Permanent Court of Arbitration, Case No. 2010–8, available at: .

46

Blokker

otherwise”.27 A system is therefore available. Next, it would be for international organizations and third parties to use it for their disputes, rather than using ad hoc arbitration. The disputes would probably mostly concern contracts or other disputes of a private law nature, but other disputes could be covered as well. The main reason why this has not happened so far is probably that the number of claims against international organizations has only started to increase in more recent years. However, it may also be that both organizations and their member States are afraid to introduce a ‘claims culture’ in the organization, and are therefore somewhat reluctant to ‘advertise’ the possibility to bring claims. They prefer to settle disputes by negotiation and, if necessary, by ad hoc arbitration. However, a centralized institution in this area, if well positioned, would not necessarily stimulate claims: on the contrary, it could deter frivolous claims. Moreover, it would help to neutralize the criticism that international organizations are ‘not accountable’, and are unwilling to have their acts and activities reviewed. Therefore, it would appear to be in the long-term interest of both international organizations and their member States. 5

In Conclusion

Against the background of the institutional deficiency discussed above, it is understandable that national courts of member States (and also the eu Court and the European Court of Human Rights) are beacons of hope for third parties suffering from acts and activities of international organizations and claiming that the member States concerned are responsible for such acts and activities. However, it was the aim of this contribution to demonstrate why there is, and should be, only a secondary, rather limited, role for member State responsibility in case of wrongdoings by international organizations. Member State responsibility for internationally wrongful acts of international organizations is more of a delusion than a beacon of hope. It is not — and cannot be — a substitute for remedial mechanisms at the international level. However, in the absence of such mechanisms, national courts may decide to ‘bridge the accountability gap’ and provide ‘access to justice’, depending on the  facts and circumstances of a particular case. While this may, or may not,  provide a remedy to victims, in the long run this could also make it more  difficult for international organizations to perform their functions, as it would force the member States to increase their control over the work of 27

For these 2012 Arbitration Rules, see the pca website, available at: .

Member State Responsibility for Wrongdoings

47

international organizations, which would affect their necessary autonomy. It is, therefore, of fundamental importance that international organizations are responsible for their own internationally wrongful acts. This is, for good reasons, a key rule of the ario. If this key rule is not taken seriously, it would be more difficult for the relevant international organizations to perform their functions effectively. It is, therefore, in the long-term interest of both international organizations and their member States to create and develop appropriate, tailor-made accountability mechanisms, where necessary.

chapter 4

Member States and the International Legal (Dis)order Accounting for the Notion of Responsible Governance Ana Sofia Barros 1 Introduction States’ engagement in institutionalized forms of international cooperation is premised on the existence of a common interest that is perceived as being best attained collectively. As participants in international organizations, they become ‘new’ actors in the realm of global governance,1 and should in that capacity be judged as to the way in which their actions serve the common good. There is, however, a need to better conceptualize in legal terms the role of member States as governors of international organizations. Notably, a need to better frame their governance functions within the current regime of international responsibility, so that the interests of those affected by institutional operations are effectively accounted for. If the aim of global governance is to achieve

1 Political scientists have explored at length the shifting role of States in the global order by noting the transition from a world of ‘Government’ to one of ‘Governance’. Various ‘theories of the State’ have been advanced to describe this phenomenon, notably, that of ‘governance as the hollowing out of the State’; ‘degovernancing’; ‘state-centred governance’; and ‘big governance’, which is marked by the notion of the regulatory State. According to the latter two perspectives, States still play a leading role in global governance without however monopolizing authority, which is the understanding embraced in this paper. See David Levi-Faur, ‘From “Big Government” to “Big Governance”’, in D. Levi-Faur (ed.), Oxford Handbook on Governance (Oxford University Press, Oxford, 2012) pp. 10–14. Yet, an important distinction must be made between the role that States assume at the global level in a unilateral fashion (think of the exercise of universal jurisdiction under Articles 5 and 7 of the un Convention Against Torture) and their role in multilateral settings, which include their participation in international organizations. The latter form of international cooperation can be said to bring about a ‘new’ role for States, as the terms in which their subjectivity is to be defined for international law purposes necessarily rely on their relationship with the international organization wherein they operate – and thus, unavoidably differ from the clear-cut instances where they act as sovereigns, such as in the context of a Conference of the Parties to an environmental treaty. As shall be clarified, with (member) States’ ‘new’ role, come ‘new’ responsibilities.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_005

Member States and the International Legal (Dis)order

49

‘normatively laden political goals when handling common problems’,2 and if the exercise of public power, including at the global level, carries with it certain constitutional conditions,3 then it should be asked whether there are fundamental norms governing the performance, by member States, of governmental functions through international organizations, as well as the relationship between member States and the individuals affected by institutional operations.4 The present contribution will attempt to answer this question from a victim-centred perspective, out of concern for the protection of the individuals whose interests the aforementioned cooperative endeavours are meant to serve; concern, in particular, that States participating in institutional undertakings do not directly turn to those affected when sustaining their decisions, and that the latter are not provided with appropriate mechanisms to both question the impact of these decisions and hold their authors to account. In view of such a two-stage legitimation process5 an analysis will therefore be undertaken of how to frame and constrain member State governance through a constitutionalist approach to international law. In exploring how said legitimacy concerns are to be accommodated by international law, the present paper recuperates an old-time disquietude which refers, in essence, to the question of how to make sense of an international legal system that is in order.6 Notably, an international legal regime which – drawing inspiration from the domestic rule of law tradition – is able to 2 Michael Zürn, ‘Global Governance as Multi-Level Governance’, in D. Levi-Faur (ed.), supra note 1, p. 731. 3 Philip Allott, ‘Intergovernmental Societies and the Idea of Constitutionalism’, in J. M. Coicaud and V. Heiskanen (eds.), The Legitimacy of International organizations (un University Press, Tokyo, 2001) pp. 91, 92. 4 Recognizably, the large majority of legal writings espousing a constitutional approach to international institutional law rather concentrate on the foundational treaties of inter­ national organizations and the constraints arising therefrom to the exercise of sovereign ­powers by the latter. 5 Zürn, supra note 2, at pp. 736, 737. 6 Whatever brings order into law has of course been perceived differently across time. As synthesized by Foqué, since the end of the eleventh century, the legal order found its justification in the theological and metaphysical emanation of natural law. An important shift was brought about by the Peace of Westphalia, as it introduced religious and philosophical pluralism. A new order of international relationships thereby arose, based on the mutual recognition of ideological identities and spheres of influence between sovereign nation-states. As contended by the author, in the current era of global governance, human rights and general principles of law play a major role in intertwining government and the rule of law in the global public realm. See René Foqué, ‘Global Governance and the Rule of Law: Human Rights

50

Barros

constrain public power as it is exercised by governments participating in international organizations, and thereby ensure that when States create international organizations they do not leave their international obligations behind. Before specifically addressing the main question posed, the paper advances in Section  2 the notion that sovereign powers, rather than being inexorably transferred to international organizations, are instead ‘shared’ between the latter and their member States. It justifies this by noting how the pursuit of national interests constitutes a defining element of State adherence to international organizations (Section 2.1.). It then moves on to conclude that the power retained by member States ultimately assumes the crucial function of steering their oversight and ‘authority management’ duties over institutional operations (Section 2.2.). Against this background, Section 3 explores how member State governance is to be framed and tamed by the international legal order for responsibility purposes. It first invokes constitutionalist approaches to international law, and insights from human rights law, to crystalize the understanding that the principles of representativeness and responsiveness must inform  member State conduct as creators and participants in institutional undertakings (Section 3.1.). The procedural implications of these principles are subsequently explored in Section 3.2., by resorting to due diligence as a standard to evaluate member State behaviour in institutional settings and thereby implement member State responsibility. 2

The Transfer of the Exercise of Sovereign Powers to International Organizations: A Process in ‘Continuum’

In order to grasp how the regime of international responsibility can better serve the interests of the individuals affected by institutional operations, it is first and foremost essential to clarify who (and in what terms), between the international organization and its member States, exercises the powers that are to be subjected to legal scrutiny. This section provides an ontological account of member State power, by underlining how its configuration is inextricably linked to the pursuit of national interests, and explores the implications thereof for the understanding of the relationship between member States and international organizations. In so doing, it yields the contextual basis upon which to evaluate States’ participation in institutional settings from a rule of law perspective. and General Principles of Good Global Governance’, in K. Wellens (ed.) International Law: Theory and Practice (Martinus Nijhoff Publishers, Leiden, 1998) pp. 25–44.

Member States and the International Legal (Dis)order

51

Preliminary Remarks on the Impact of State Adherence to International Organizations in Domestic Legal Systems Constitutions worldwide envisage the transfer of the exercise of sovereign powers to international organizations for the benefit of international cooperation.7 In contrast with the lenience of international law,8 however, constitutional texts may provide for this competence in significantly more limited terms:9 for example, the approval of Guatemala’s adherence to international organizations is subjected to the procedural condition of a qualified parliamentary majority;10 and Japan is not constitutionally allowed to contribute troops to an international military operation conducted under the auspices of an international organization.11 Aside from these limited examples, constitutions tend to be general and anticipatory, and thus, do not say much about the precise impact of membership of international organizations in domestic legal systems. Constitutional endorsement, notwithstanding, does have something to say about how the position of member States vis-à-vis international organizations is perceived domestically: inasmuch as it allows the legislative and the judicial powers to exert some kind of control over the executive’s activity on foreign affairs (to begin with, to examine whether the constitutional conditions for the transfer of competences have been met) it shows that State participation in 2.1

7

8 9

10

11

See, for European examples, Section 93, Chapter 3 of the Spanish Constitution, Article 11 of the Italian Constitution and Article 79 of the Russian Constitution; for Asian examples, Article 7 of the Singaporean Constitution and Article 14 of the Vietnamese Constitution; for African examples, Article 110 of the Zairean Constitution and Article xxviii(ii) of the Ugandan Constitution; and for Central and South American examples, Article 12(j) of the Cuban Constitution, Articles 20 and 21 of the Honduran Constitution and Article 3 of the Ecuadorian Constitution. In principle, States may grant the exercise of virtually any power to international organizations. In analyzing several constitutional provisions envisaging the transfer of powers to international organizations, Martin Martinez identifies three types of conditions for such a transfer to occur: procedural conditions to validate the act of transfer, such as, parliamentary approval by a qualified majority; conditions to be fulfilled by the organization to which powers are being transferred, such as, the pursuit of specific goals; and conditions to be fulfilled by all the other future members, for instance, equal treatment within the organization. See Magdalena Martin Martinez, National Sovereignty and International Organizations (Kluwer Law International, The Hague, 1996) pp. 15–61, 67, 68. Article 172 of the Guatemalan Constitution. Other examples include: Article 133 of the Croatian Constitution; Article 121(4) of the Costa Rican Constitution; and Article 58 (fourth para.) of the Iraqi Constitution. See Article 9 of the Japanese Constitution.

52

Barros

international organizations constitutes legally relevant conduct in its own right, and can thereby be subjected to the scrutiny of competent national authorities. The transfer of the exercise of sovereign powers to international organizations can be said to unfold in a ‘continuum’, i.e., as a dynamic (rather than static) process, which, ‘starts once the authorizations to transfer State’s power on behalf of international institutions are put into practice’ and ‘is accomplished by means of the day-to-day effective application of the powers and functions attributed to i.o.’s in their constitutive treaties.’12 Ultimately, this has important repercussions on the legal systems of member States – not only as participants in international organizations, but also as executors of their decisions. At the very least, an obvious implication of State adherence to international organizations relates to the development of a government apparatus responsible for formulating – in more or less detail – the national positions that are to be pursued by State representatives in institutional undertakings.13 A fundamental element underlying the notion of ‘continued transfer’ is that national interests are permanently engaged when it comes to the participation of Government representatives in institutional settings. In this connection, it is interesting to note how, in some countries, such notion has been translated into different forms of domestic control over governmental action – parliamentary oversight constituting a case in point. Indeed, conceptions of ‘vertical’ democracy call for the enhanced involvement of citizens, through their parliamentary assemblies, in intergovernmental law-making and decisionmaking processes.14 While it is true that a democratic deficit may be inevitable

12 13

14

Martin Martinez, supra note 9, p. 2. In capital-based coordination systems, the main actors are the ministries of foreign affairs (or, in the case of the international financial institutions, the ministries of finance or the ministries for economic and development cooperation), whereas in mission-based coordination systems the major part of national decisions are formulated by diplomats dealing with the negotiation in question, as explained by Diana Panke, ‘Getting Ready to Negotiate in International Organizations? On the Importance of the Domestic Construction of National Positions’ (2013) 4(2) Journal of International Organizations Studies pp. 25–38. Jan Wouters, Bart De Meester and Cedric Ryngaert, ‘Democracy and International Law’ (2003) 34 Netherlands Yearbook of International Law pp. 177–179. Interestingly, there are at least sixty seven inter-State organizations of parliamentarians of States, created at the global, regional and interregional levels, as a means to counteract the dominance of governments in conducting the foreign relations of their States. See Chadwick F. Alger and Kent J. Kille, ‘How Are, and Should, Parliamentarians of States

Member States and the International Legal (Dis)order

53

in institutional settings,15 it is also worth mentioning examples such as that of the eu, whose founding treaty specifically acknowledges that ‘Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.’16 As a consequence, all eu member States’ parliaments include bodies specializing in community affairs.17 Apart from the eu, a variety of other examples of parliamentary oversight could be given, including with regard to State participation in multilateral development banks. Notably, the us Congress has the ultimate authority over the criteria that govern us participation in these institutions, the level of us financial commitments and the general framework for us policy;18 in the uk, both State representatives and the Government’s Department for International Development (‘dfid’) are subjected to monitoring by internal and external scrutiny bodies;19 in other parts of the world, such as in Angola or Brazil, national Parliaments are also sometimes engaged, but only with regard to a limited amount of affairs, usually through informal inquiries. Next to parliamentary control, the formulation of government positions on action within international organizations can be assessed by national courts for its conformity with domestic legislation.20 Considering us practice as a member of international organizations, for example, it is striking

15

16 17 18

19

20

Be Involved in Global Governance?’ (2014) 5(2) Journal of International Organizations Studies pp. 71–84. Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 American Journal of International Law pp. 490–493. See also pp. 524, 525 and 531 on the possibility of exercising control over international organizations via national parliaments, with a particular focus on eu institutions. Article 10(2) of the Consolidated Version of The Treaty on European Union, oj c 83/13, 30 March 2010 (emphasis added). For a list of these bodies, see: . Rebecca M. Nelson and Martin A. Weiss, ‘Multilateral Development Banks: How the United States Makes and Implements Policy’, Congressional Research Service Report (29 April 2014) p. 1. See the recent publication of the Independent Commission for Aid Impact (‘icai’) — which reports directly to Parliament through the House of Commons International Development Committee — evaluating the work of dfid with regard to multilateral organizations: ‘How dfid works with multilateral agencies to achieve impact’, Report 44 (June 2015). Domestic legislation cannot, of course, govern international organizations nor any of their organs, as institutional operations could otherwise be hindered by entanglements in

54

Barros

how far domestic legal documents (reflecting national preferences) have the potential to affect its behaviour in institutional contexts – an illustration of this being the Government’s withdrawal of membership dues to unesco on the basis of legislation prohibiting the provision of funds to the un or a Specialized Agency that accorded ‘the Palestine Liberation Organization the same standing as member sates’, which unesco did in 31 October 2011;21 or the us’s ‘institutionalized’ practice within the World Bank of not supporting loans to Iran, on the basis of domestic legislation imposing sanctions on the latter.22 From the above account it follows that what States do within institutional contexts constitutes a matter of concern in domestic legal systems. The checks and balances obtained through legislative and judicial powers reinforce the notion that the pursuit of national interests constitutes a defining element of States’ engagement in international cooperative undertakings. From an international law perspective, then, there may be less reasons to be fearful of the transfer of the exercise of sovereign powers to international organizations as an inexorable ‘erosion’ of State sovereignty.23 Rather, and as the following section will further explore, the fact that member States partake in the exercise of the powers that were transferred to international organizations features prominently in the relationship between both international legal subjects, and constitutes an essential element in the determination of specific cases in which the international responsibility of (member) States may be triggered.

21

22

23

domestic laws and judgements. See, inter alia, the decision of the World Bank Administrative Tribunal Aida Shekib, Decision No. 358 (2007), para. 27. See Public Law 101–246, Title iv, 104 Stat. 70, 1990, and also Public Law 103–236, Title iv, 108 Stat. 488–490, 1994, referred to by Christiane Ahlborn, ‘unesco Approves Palestinian Membership Bid – A Case for us Countermeasures Against the Organization?’, in Blog of the European Journal of International Law (8 November 2011), available at: < http://www .ejiltalk.org/unesco-approves-palestinian-membership-bid-%E2%80%93-a-case-for -us-countermeasures-against-the-organization/>. See Sec. 10 of S. 970, the Iran Counter Proliferation Act of 2007, and Sec. 12 of S.3227 Iran Sanctions Act of 2008. See also Martin A. Weiss and Jonathan E. Sanford, ‘The World Bank and Iran’, Congressional Research Service Report (28 January 2008), reporting on the us’s systematic objection to the provision of World Bank loans to Iran, including for the purposes of emergency assistance. See Andrew T. Guzman and Jennifer Landsidle, ‘The Myth of International Delegation’ (2008) 96(6) California Law Review pp. 1694, 1695. Interestingly, some constitutional texts specifically use such type of wording to express the phenomenon of State adherence to international organizations. See, inter alia, Article 11 of the Italian Constitution and Article 110 of the Zairean Constitution.

Member States and the International Legal (Dis)order

55

2.2 The Power of Member States vis-à-vis International Organizations In scrutinizing State adherence to international organizations, authors such as Seidl-Hohenveldern have rejected the idea of a real transfer of sovereign rights, positing that these are instead retained by States, but remain ‘dormant’ and temporarily suspended.24 Others, as noted by Cassese, perceive conferrals of powers as ‘limitations on State freedom’, noting that sovereignty can only truly be transferred whenever, in addition to legislative and judicial powers, international organizations are vested with executive powers.25 More recently, Sarooshi suggested that conferrals of powers may take three different forms — and thereby assume different consequences for the purposes of member State responsibility — depending on their degree. Notably, they may give rise to an agency relationship, to the delegation of powers and, to a deeper extent, to the transfer of powers to international organizations proper.26 Irrespective of the extent of the powers conferred, Sarooshi notes that the contestations of sovereignty occurring within States are often “the very same contestations that are now taking place within international organizations. They are about the central problem of sovereignty: what are powers reserved to government; who exercises which of them, and how should they be exercised?”27 Accordingly, this is largely the reason why “domestic arms of government seek to engage in the contestation of sovereignty within international organizations that exercise governmental powers.”28 That States contest sovereignty in institutional contexts is tantamount to  claiming that States exert some sort of control over the organization’s exercise of powers. It is enough to underline that, regardless of the model of 24

Ignaz Seidl-Hohenveldern, Corporations in and under International Law (Cambridge University Press, Cambridge, 1987) pp. 70–72. 25 Antonio Cassese, ‘Modern Constitutions and International Law’, (1985) 192 rcadi p. 416. 26 Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford University Press, Oxford, 2005) pp. 28–32. For an overview of doctrinal proposals attempting to explain the question of conferrals of powers to international organizations see the literature referred in: Guzman and Landsidle, supra note 23, pp. 1697 and 1698. 27 Sarooshi, supra note 26, pp. 7, 8. 28 Ibid. In the same vein, Plantey contends that “[e]ven when not deployed in the service of the States which, alone or together, dominate an international organization, the cohesion of its bureaucracy cannot fail to provoke a reaction on the part of governments anxious to maintain their freedom of political choice. States lose no opportunity to assert their authority over a system with a tendency to free itself from their control and set itself up as an independent technical or diplomatic power”: Alain Plantey, International Negotiation in the Twenty-First Century, translated by Frances Meadows, (Routledge-Cavendish, Oxon-New York, 2007) p. 220 (emphazis in original).

56

Barros

institutional design adopted, there always remains a considerable margin for member States to exert influence over decision-making processes, even if informally.29 According to Sarooshi, such a control becomes less visible (outside the confines of the organization’s decision-making processes) the greater the degree of the conferral.30 To De Schutter, the control that States are allowed to exert is contingent upon the terms in which powers were transferred to international organizations. Writing from the viewpoint of human rights protection, the author proposes a logic of ‘sliding scales’, whereby the more member States retain the power to decisively influence decision-making processes or, at least, to refuse to comply with the implementation of the organization’s decisions, the more acceptable it becomes to transfer extensive powers to international organizations.31 In addition, any assessment of member State responsibility should also take into consideration whether accountability mechanisms have been set up to ensure an effective human rights protection.32 Significant to retain from both accounts is the notion that the transfer of the exercise of powers to international organizations cannot be dissociated with different manifestations of control (i.e. influence) over such an exercise by member States. Whether this control – in the form of contestation – is more or less permissible is in the eye of the beholder, in that it depends on the types of preference and legal values that are prioritized:33 on the one hand, the preservation of the functional autonomy of international organizations,34 and, on 29

See, inter alia, Ana Sofia Barros and Cedric Ryngaert, ‘The Position of Member States in (Autonomous) Institutional Decision-Making: Implications for the Establishment of Responsibility’ (2014) 11(1) International Organizations Law Review pp. 61–67. 30 Sarooshi, supra note 26, p. 121. 31 Olivier De Schutter, ‘Human Rights and the Rise of International Organizations: The Logic of Sliding Scales in the Law of International Responsibility’, in J. Wouters, E. Brems, S. Smis and P. Schmitt (eds.), Accountability for Human Rights Violations by International Organizations (Intersentia, Antwerp, 2010) pp. 77–103 and 123–125. 32 Ibid. 33 As is possibly the case whenever different legal regimes, with their own vocabulary, interests and preferences, are confronted with a view to their application to the same set of circumstances. See Martti Koskenniemi, ‘The Politics of International Law – 20 Years Later’, (2009) 20(1) The European Journal of International Law pp. 10–12. 34 Policy considerations on the efficient and independent functioning of international organizations have been given considerable weight in numerous texts addressing the question of member State responsibility — so much that they have obtained almost axiomatic status, as observed by Stumer. See Andrew Stumer, ‘Liability of Member States for Acts of International Organizations: Reconsidering the Policy Objections’ (2007) 48(2) Harvard International Law Journal p. 554.

Member States and the International Legal (Dis)order

57

the other hand, the preservation of the international legal obligations that were binding upon States prior to their adherence to international organizations. Be that as it may, member States’ control necessarily affects the outcome of institutional operations and must therefore be taken into account when assessing international responsibility for the injurious impacts of institutional activities upon individuals. When it comes to ‘transfers of powers’ to international organizations (to use Sarooshi’s terminology), however — a prominent example of which would be the eu — other commentators may not outright embrace the views presented above. As has been vocally put forward, the notion of conferral of competences is key to the understanding of responsibility (and attribution) issues within the eu context. Accordingly, as long as the eu has competence to act in a certain field, and to be the bearer of international obligations, State control over the exercise of competences by the eu or the implementation of eu decisions is not a matter susceptible to controversy, as responsibility for the breach of any such obligation will in principle lie with the eu.35 Yet, this understanding is questionable,36 in that it seems to regard ‘transfers of powers’ as irreversible phenomena, wherein there is no margin left to consider the extent to which member States were involved in the operationalization of those powers. Indeed, such State involvement cannot simply be bypassed on competence grounds and is instead of utmost importance when discussing international responsibility questions. Notably, member States’ role as creators of international organizations is echoed in various critical aspects: they finance and provide material support for the operations of international 35

36

See, inter alia, Pieter J. Kuijper and Esa Paasivirta, ‘eu International Responsibility and its Attribution: From the Inside Looking Out’, in M. Evans and P. Koutrakos (eds.), The International Responsibility of the European Union: European and International Perspectives (Hart Publishing, Oxford, 2013), pp. 54–63; and Frank Hoffmeister, ‘Litigating against the European Union and its Member States — Who responds under the ilc’s Draft Articles on International Responsibility of International Organizations?’ (2010) 21(3) European Journal of International Law pp. 743–745. See also the contribution of Esa Paasivirta in this special forum ‘The Responsibility of Member States of International Organizations: A Special Case for the European Union?’. That the understanding of the eu as a special case in the law of international responsibility is controversial finds its greatest expression in the fact that the ilc barely took into account the views expressed by the eu throughout the discussions preceding the adoption of the ario: see, specifically on attribution, unga Fifty-sixth Session, ‘Responsibility of International Organizations: Comments and Observations Received from international Organizations’, un Doc a/cn 4/545 (25 June 2004) pp. 28–32. Admittedly, the lex specialis rule laid down in Article 64 of the ario does not dispel the controversy either.

58

Barros

organizations; they second their nationals to the latter’s organs; they control the accession procedure of new members;37 they participate in institutional decision-making processes;38 and they implement institutional decisions. In addition, provided that certain conditions are met, States can ultimately withdraw, or threaten to withdraw, from the organization in case they disagree with the way in which it is exercising its powers.39 To some, these are reasons enough to regard conferrals of powers as a natural extension of member States’ rights, and thus, as means to enhance the ability of States to exercise their sovereignty.40 And yet, the above observations should not be interpreted as supporting the idea that international organizations are ultimately mere tools in the hands of their member States (particularly the most powerful ones), as realists would generally argue.41 Indeed, State adherence to international organizations necessarily implies a voluntary limitation of freedom of action, to give way to the autonomous life of the new actor thus created. The thread of this section is rather to emphasize the notion that the transfer of the exercise of sovereign powers, instead of freezing at the moment of adoption of the organization’s constituent instrument, brings about a process of interaction between international organizations and their members that unfolds in a ‘continuum’.42 This enables the capturing of diverse sorts of action throughout the exercise of sovereign powers — either performed by the international organization or its member States, or both, as subjects of international law — each of which may be legally relevant for responsibility purposes. In this dynamic, it is imperative to recall that, as creators (or subsequent adherents), States remain to a considerable extent the ‘owners’ of the powers 37

38 39

40 41 42

See Konstantinos D. Magliveras, ‘Membership in International Organizations’, in J. Klabbers and Å. Wallendahl (eds.), Research Handbook on the Law of International Organizations (Edward Elgar, Cheltenham, 2011) pp. 84–107, particularly at pp. 85–90. On the participation of member States in institutional decision-making processes as conduct attributable to the State, see Barros and Ryngaert, supra note 29, esp. at pp. 70–80. Some cases of withdrawal from membership are presented in Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity Within Diversity (Martinus Nijhoff Publishers, Leiden, 2011) pp. 99–110. See David Epstein and Sharyn O’Halloran, ‘Sovereignty and Delegation in International Organizations’, (2007) 71 Law and Contemporary Problems pp. 77–92, particularly at p. 91. See, inter alia: John J. Mearsheimer, The Tragedy of Great Power Politics (W. W. Norton, New York, 2001) pp. 363–366. Whenever, for example, member State representatives seating at the board of an international financial institution approve a loan, they can be said to be somehow transferring to this institution the capacity to act upon such an approval.

Member States and the International Legal (Dis)order

59

whose exercise was transferred,43 and should thereby have a say on how these powers are being, or are to be, exercised within a given institutional context. This is so, for the simple reason that States carry with them international law obligations once they adhere to international organizations — obligations which do not obviously fade away upon such adherence (see below). In this vein, the most important manifestation of member States’ (remaining) power comes forth in their role as ‘authority mangers’.44 Some authors have noted how member States have a vital interest in policing the public authority exercised within international organizations45 and that, as a matter of fact, their oversight role is built into the heart of the founding treaties of multiple international organizations.46 Still, the argument can be stretched  further, to make way for the claim that managing authority constitutes an obligation inherent in member States’ role as creators of, and participants in, international organizations. Indeed, if member States, acting as international legal subjects, and the organizations they create affect (or determine)47 individuals, the former must make sure that this impact does not occur to the detriment of the international law obligations they are bound to observe. (Member State) power thus assumes, in this context, the function of shaping the law that determines in which cases, which forms of power trigger responsibility.48 43 44 45

46

47

48

However, the issue of ‘mission-creep’ cannot be ignored. The expression is used in Zürn, supra note 2, p. 735, to generally characterize the role played by States in global governance. This is so if one adopts an approach based on the sovereign equality of States, as held by Erika De Wet, ‘Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review’, in A. V. Bogdandy, R. Wolfrum, J. V. Bernstorff, P. Dann and M. Goldmann (eds.), The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Springer, Heidelberg, 2009) pp. 857, 858. De Wet differentiates between vertical, intermediate and horizontal oversight mechanisms, noting that member States play a central role in relation to the first ones (see pp. 863–868). Jan A. Scholte, ‘Global governance, accountability and civil society’, in J. A. Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge University Press, Cambridge, 2011) pp. 25–28, even if acknowledging important limitations in this regard. Armin V. Bogdandy, Philipp Dann and Matthias Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, in A. V. Bogdandy, R. Wolfrum, J. V. Bernstorff, P. Dann and M. Goldmann (eds.), supra note 45, p. 11, define authority as the ‘legal capacity to determine others and to reduce their freedom, i.e., to unilaterally shape their legal or factual situation’ (emphasis in original). André Nollkaemper, ‘Power and Responsibility’, shares Research Paper 42 (2014), acil 2014–22, p. 19.

60

Barros

The following section will explore how member States’ particular position of power vis-à-vis international organizations is to be accommodated by the international legal order. 3

Translating Member State Power into Responsible Governance

Without negating that international organizations themselves exercise sovereign power,49 the current section rather draws on the margin that is left for member States to partake in said exercise. It adopts a victim-centred perspective to explore the limits imposed thereof by international law, and thus gives  pride of place to the constitutional principles of representativeness and responsiveness. In adopting a constitutionalist approach to member State governance, it attempts to shed light on the process of (re-)organization and (re-)allocation of competence among the subjects of the international legal order.50 As will be shown, the performance by member States of their oversight duties, both in their role as creators and as participants in institutional settings, is of utmost importance in this scheme, and may lead to a finding of member State responsibility if it does not comply with due diligence requirements. A Constitutionalist Reading of State Adherence to International Organizations As highlighted in Section  1.1., the conduct performed by States in international organizations is conditioned by domestic legal restraints, and is thereby liable — to a higher or lower degree — to domestic checks and balances. On a fundamental level, to recall that State adherence to international organizations is framed by domestic constitutions, is to recuperate the notion that governmental action, including in foreign affairs, must be undertaken within the limits of law and the requirements of political legitimacy. From an international law perspective, the question thus arises of how these notions are to be carried over, in some form, to the realm of global governance, and in

3.1

49

50

See, inter alia, Michael Barnett and Martha Finnemore, ‘The Politics, Power, and Pathologies of International Organizations’ (1999) 53(4) International Organization pp. 699–732. Erika De Wet, ‘The International Constitutional Order’ (2006) 55 International And Comparative Law Quarterly p. 51.

Member States and the International Legal (Dis)order

61

particular, to the exercise by States of public powers in institutional settings.51 When those experiencing the effects of State conduct lie beyond its borders, what requirements does the international legal order prescribe towards their protection, under which constitutional principles, and how can responsibility be invoked? The query is not so much about devising the contours of a core international value system against which the conduct of member States may be judged – even if it is assumed that human rights norms integrate such a system (see below). The present section will rather draw on the purpose and functions of governance along the lines of ‘functionalist constitutionalism’,52 by exploring the terms in which the exercise of public authority by member States is to be disciplined in order to comply with rule of law prescriptions. Directly connected to this is of course the notion that ‘power breeds responsibility’,53 or, more generically, that governance breeds accountability.54 And if different types of power trigger different types of responsibility in different situations,55 an appraisal is definitely warranted as to the terms in which member States’ conduct performed as creators and participants in institutional settings is to be legally constrained. As rightly noted by Lukes, any assessment of an agent’s power entails two judgements about what is significant to the assessment, namely, judgements about the scope of the concept of power 51

The proposed transposition is to be read in generic terms, in that otherwise one would run the risk of ‘mythologizing’ national democratic governance as a model for international governance, as put by De Wet, ibid. pp. 71–74. For one, the notion of reflexive identity that is inherent in any constituent power does not apply at the global level, as the individuals affected by member States’ actions, performed in plenary and non-plenary organs, do not normally correspond to those that put them in power. On the concept of reflexive identity and self-constitution, see Hans Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’, in M. Loughlin and N. Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, Oxford, 2008) pp. 9–24. 52 The term is used by Klabbers, drawing inspiration from Martin Loughlin’s work on ‘The Functionalist Style in International Law’. See Jan Klabbers, ‘Setting the Scene’, in J. Klabbers, A. Peters and G. Ulfstein (eds.), The Constitutionalization of International Law (Oxford University Press, Oxford, 2009) pp. 9, 10, 26, 27. 53 The expression is owed to Clyde Eagleton and is further explored by Nollkaemper, supra note 48, in the intricate context of shared responsibility. As seen in Section 1, the exercise of sovereign powers is shared between international organizations and their member States, which means that in many situations it may not be straightforward to determine who exactly held enough power to trigger responsibility (see pp. 2, 3, 14–18). 54 E.g. Scholte, supra note 46, pp. 15–32. 55 Nollkaemper, supra note 48, pp. 3–5.

62

Barros

that is being used and judgements about the relevance of the outcomes the agents are capable of effecting.56 For present purposes, inasmuch as our main concern regards the legal contours of member State oversight of institutional operations (what was above called ‘authority management’), the concept of power will be used in the sense of influence, and not so much of control or coercion.57 The point to be made is simple and is based on an understanding of constitutionalism, which, along with Waldron and Peters, places individuals (i.e. their  well-being, interests, needs and rights) as the ultimate unit of legal concern58 – and, thereby, as the main reference point to determine how member State governance is to be constrained in constitutionalist terms. In this vein, it is contented (if not recalled) that in exercising their power, member States must account for the interests of the beneficiaries of international cooperation, and thus, that the international legal order has to somehow frame and tame this power in terms that are protective of such interests. This means, in essence, that in performing their oversight duties, member States must ensure that exercises of power are both representative of, and responsive to, said interests through some form of institutionalized protection. The understanding that the exercise of power in the global realm must be representative and responsive to the interests of individuals has been commonly advanced by authors endorsing a constitutionalist approach to international law.59 Often, the discussion unfolds through a proceduralist lens, by invoking rule of law-based procedural standards, guarantees of fair trail, and mechanisms of review.60 Ultimately, it is assumed, proceduralization increases the likelihood of fair and acceptable outcomes.61 Here, the resonance with writings of Global Administrative Law (‘gal’) scholars becomes apparent. This comes as no surprise, as they too emphasize the need to discipline the exercise of public power through constitution-like principles such as accountability, 56 57

58

59 60

61

Steven Lukes, Power: A Radical View (Palgrave Macmillan, London, 2005) p. 72. See Arts. 8, 17 and 18 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission (Vol. ii) (2001), Part Two. Jeremy Waldron, ‘The Rule of International Law’ (2008) 30 Harvard Journal of Law & Public Policy p. 25; and Anne Peters, ‘Membership in the Global Constitutional Community’, in J. Klabbers, A. Peters and G. Ulfstein (eds.), supra note 52, pp. 155, 179. See Klabbers, supra note 52, pp. 26, 27. See the observations made by Peters on the discussions led by academics and practitioners surrounding the un Security Council practice of listing and delisting terrorism suspects in Peters, supra note 58, pp. 164, 165. Ibid., pp. 177, 178.

Member States and the International Legal (Dis)order

63

participation and transparency.62 As synthetized by Cassese, gal ascribes two fundamental rights to citizens, notably, the right to participation and the right to defense – the former consisting of the chance to intervene in the course of a global administrative proceeding; the latter implying a citizen’s right to appeal to a global judicial authority for the review of global decisions.63 Doctrinal attempts to introduce elements of the rule of law-tradition in international institutional contexts mainly draw on the exercise of governmental authority by international organizations. To illustrate this, mention could be made to the 2004 ila Report on the ‘Accountability of International Organizations’, which applies a set of procedural principles to international organizations, such as that of stating the reasons for decisions and the principle of participatory decision-making, with the aim of constitutionalizing their operations.64 Still, to the extent that member States share the exercise of sovereign powers with international organizations, such as in the context of institutional decision-making processes (see above), it can only be apposite to apply this sort of procedural rules to member States as well.65 Undoubtedly, the values of representation and responsiveness permeate human rights law, which presents obvious constitutional traits.66 Here too, procedural concerns take up a fundamental role, to ensure that human rights are duly respected and protected by States. Mention should be made, for instance, to the due process guarantees contained in Articles 8 and 10 of the Universal Declaration of Human Rights; Articles 2(3) and 14 of the International Covenant on Civil and Political Rights; Articles 8 and 25 of the American 62

For an application of these broadly defined principles to international organizations, see Benedict Kingsbury and Lorenzo Casini, ‘Global Administrative Law Dimensions of International Organizations Law’ (2009) 6 International Organizations Law Review pp. 325, 333 et seq. 63 Sabino Cassese ‘Administrative Law without the State? The Challenge of Global Regulation’ (2006) 37 International Law and Politics p. 663, at p. 685. 64 International Law Association, ‘Accountability of International Organizations’, Final Report of the International Law Association, Berlin Conference (2004), pp. 8–15. 65 As warned by Bogdandy, an equal application of general principles of public international law to all exercises of public power is hardly conceivable. See Armin V. Bogdandy, ‘General Principles of International Public Authority: Sketching a Research Field’, in A. V. Bogdandy, R. Wolfrum, J. V. Bernstorff, P. Dann and M. Goldmann (eds.), supra note 45, p. 747. 66 De Wet, for instance, espouses the existence of an international value system informed by human rights norms. According to the author, this system is a layered one, wherein jus cogens norms assume a normatively superior character, followed by erga omnes human rights obligations of a customary character, and a third layer of erga omnes norms with increased — but not unanimous — recognition in international law. See De Wet, supra note 50, pp. 57–63.

64

Barros

Convention on Human Rights; Articles 6 and 13 of the European Convention on Human Rights; Article 7 of the African Charter on Human and Peoples’ Rights; and Article 9 of the Arab Charter on Human Rights.67 Based on an analysis of these provisions, together with constitutional and statutory rules and practices common to a great variety of States (conducted for the purposes of a study commissioned by the un Office of Legal Affairs on ‘Targeted Sanctions and Due Process’), Fassbender defined ‘fair and clear procedures’ as requiring a number of minimum standards including the right to be informed, the right to be heard and the right to an effective review mechanism.68 Importantly, for international responsibility to be invoked, the exact scope and intensity of these rights must be determined in accordance with the specific circumstances of the situation at stake.69 Hence, States’ corresponding legal obligations, as members of international organizations, necessarily acquire particular configurations whenever they act as creators or as participants in the operations of the latter. Human rights bodies have not provided for comprehensive normative guidance on how the human rights obligations of States apply in institutional contexts, but have consistently advanced the fundamental notion that State adherence to international organizations implies the setting-up of procedural guarantees to ensure an effective human rights protection. While such guarantees of protection can easily be seen to derive from the rights enunciated above (such as the right to an effective remedy), they have also been considered as integral components of human rights in general, through extensive interpretations of the latter. Accordingly, in the European context, the European Court of Human Rights (hereinafter ecthr), held in the well-known Matthews case70 that the European Convention “does not exclude the transfer of competences to international organizations provided that Convention rights continue to be ‘secured’. 67

68

69 70

It has moreover been contended that, beyond the human rights regime, it is possible to argue for the existence of universal principles of procedural due process (even if accepting that there may be well-founded arguments against such a universalist perspective). See Giacinto della Cananea, ‘Procedural Due Process of Law Beyond the State’, in A. V. Bogdandy, R. Wolfrum, J. V. Bernstorff, P. Dann and M. Goldmann (eds.), supra note 45, pp. 965–999. Bardo Fassbender ‘Targeted Sanctions Imposed by the un Security Council and Due Process Rights: A Study Commissioned by the un Office of Legal Affairs and Follow-Up Action by the United Nations’, reprinted in (2006) 3 International Organizations Law Review pp. 437–485. Ibid., pp. 447, 476. Mathews v. the United Kingdom, 18 February 1999, European Court of Human Rights, App. No. 24833/94, echr Reports 1999–i, p. 12–13.

Member States and the International Legal (Dis)order

65

Member States’ responsibility therefore continues even after such a transfer.”71 In that case, the responsibility of the uk was at stake, for not having ensured that within the legal system of the then European Community, laws would not be passed that were incompatible with the State’s obligations under the Convention. A fairly adequate criteria has been developed by the ecthr whereby States’ action taken in compliance with their obligations flowing from membership of an international organization is justified provided that the organization is seen to protect fundamental rights in a “manner which can be considered at least equivalent to that for which the Convention provides.”72 What the jurisprudence of the ecthr suggests is that member States are bound by a duty of due diligence, under which they are required to ensure that while entrusting an international organization with certain competences, they will still have at their disposal sufficient tools to oversee the impacts of the organization’s activities on human rights.73 In a similar vein, the un Committee on Economic Social and Cultural Rights (‘cescr’) has asserted that State participation in international organizations should be exercised in conformity with human rights norms.74 Accordingly, the cescr has advised several State parties that as a ‘member of international organizations … to do all it can to ensure that the policies and decisions of those organizations are in conformity with the obligations of States parties under 71 72 73

74

Ibid., para. 32. See also the earlier case M. & Co. v. Germany, 9 February 1990, European Commission of Human Rights, App. No. 13258/87, Decisions and Reports Vol. 64, p. 145 Bosphorus Hava Yollari Turzim Ve Ticaret Anonim Sirketi v. Ireland, 30 June 2005, European Court of Human Rights, App. No. 45036/98, echr Reports 2005-vi, para. 155. Cf. Pierre Klein, ‘The Attribution of Acts to International Organizations’, in J. Crawford, A. Pellet and S. Olleson (eds.), The Law of International Responsibility (Oxford University Press, Oxford, 2010) pp. 298–301. The ila Report referred above envisages the principle of due diligence and suggests that member States have a duty to exercise adequate supervision of international organizations, to ensure that they operate in a responsible manner so as to protect the interests of third parties (see ila Report, supra note 65, p. 15). See cescr, General Comment No. 19 on the Right to Social Security, un Doc. e/c.12/gc/19 (2008), para. 58: ‘States parties should ensure that their actions as members of international organizations take due account of the right to social security. Accordingly, States parties that are members of international financial institutions … should take steps to ensure that the right to social security is taken into account in their lending policies, credit agreements and other international measures.’ See also, in the same line: General Comment No. 18 on the Right to Work, un Doc e/c.12/gc/18 (2005), para. 30; General Comment No. 15 on the Right to Water, un Doc e/c.12/2002/11 (2002), para. 36; and General Comment No. 14 on the Right to the Highest Attainable Standard of Health, un Doc e/c.12/2000/4 (2000), para. 39.

66

Barros

the Covenant’.75 This means that State Parties to the Covenant are required to ‘take due account’ of the rights prescribed therein, and to proactively ‘ensure’ that the operations of international organizations ‘promote and do not interfere with’ those rights.76 Importantly, the cescr’s interpretations assume the extraterritorial reach of the rights contained in the Covenant,77 and conflate them with the notion of diligent State conduct, by highlighting the role of States as guarantors of the human rights conformity of the policies and practices of international organizations. The question therefore relates to how (member) States ‘manage authority’, in other words, use their power or capacity to influence the behaviour of international organizations, and therefrom, the impact of institutional operations in peoples’ lives. The following section will briefly explore how these notions can be translated into a responsibility framework that determines, more specifically, the legal contours of member State governance. Operationalizing the Notion of Responsible Member State Governance through Due Diligence The framework devised by the ilc in its 2011 Articles on the Responsibility of International Organizations78 does not quite capture States’ exercises of power

3.2

75

76 77 78

See, among others: Concluding Observations of the cescr on the Fourth Report of the uk, un Doc e/c.12/1/Add.79, 5 June 2002, para. 26; Concluding observations of the cescr on the Second Periodic Report of France, un Doc e/c.12/1/Add.72, 30 November 2001, para. 32. (emphasis added). It is noteworthy that these observations have all been made between 2000 and 2002, followed by a long absence in reiterating such concerns. However, in the latest version of the cescr Guidelines for Reporting (Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 Of the International Covenant on Economic, Social and Cultural Rights, un Doc E/C.12/2008/2, Annex, 24 March 2009), States are explicitly requested to indicate: ‘Mechanisms in place to ensure that a State party’s obligations under the Covenant are fully taken into account in its actions as a member of international organizations … in order to ensure that economic, social and cultural rights, particularly of the most disadvantaged and marginalized groups, are not undermined.’ (para. 3(c)). See Malcom Langford, Fons Coomans, Felipe Gómez Isa, ‘Extraterritorial Duties in International Law’, in M. Langford, W. Vandenhole, M. Scheinin, W. V. Genugten (eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law, (Cambridge University Press, Cambridge, 2013) pp. 103, 104. General Comment No. 19 on the Right to Social Security, supra note 75. On the understanding that power is reflected in several dimensions of the concept of responsibility, including that of jurisdiction, see Nollkaemper, supra note 48, pp. 8, 9. International Law Commission, Report of the International Law Commission on Its SixtyThird Session, un Doc a/66/10 (2011) Chapter v(E) (‘Text of the Draft Articles on the Responsibility of International Organizations’).

Member States and the International Legal (Dis)order

67

in the terms described above. The only provision moderately connected to the notion that States cannot create international organizations to perform conduct that would be wrongful if performed by the former — and that States must therefore supervise the activity of international organizations — is Article 61 addressing ‘Circumvention’. However, as explained in the commentaries to this chapter, the term circumvention implies an intentional act by the member State to avoid compliance,79 whereas the issues herein discussed raise the question of whether or not the member State’s conduct was a negligent one, in the sense of entailing a failure to exercise its powers diligently with regard to the activities of the international organization. The constitutionalist and human rights insights from the previous section highlighted how the proceduralization of human rights is essential to guaranteeing their protection within institutional frameworks. The due diligence standard, with its emphasis on capacity to influence, completes the picture. It not only constitutes a useful means of simultaneously detailing and limiting the jurisdictional scope of States’ human rights obligations, but also emerges as an allocation principle.80 Notably, the obligation is imposed upon States precisely owing to the particular position of power they assume within a given institutional setting. For responsibility to be triggered, an assessment is required of the member State’s capacity in concreto to influence effectively the activity of the international organization, and whether it “was aware, or should normally have been aware” of the human rights risks thereby created, as can be derived from the icj’s assertions in the Genocide case regarding the duty to prevent.81 Hence, the requirement that States ensure the protection of the interests of individuals (through guarantees of representativeness and responsiveness) must inform their conduct in whichever form of institutional design and accountability mechanisms they set up, in the policy framework they devise, and in their participation in the day-to-day operations of international organizations, particularly in decision-making processes. Seen from this perspective, 79 80 81

Ibid., para. 2 of the commentaries to Article 61. See Riccardo P. Mazzeschi, “Due Diligence” e Responsabilità Internazionale Degli Stati (Milano – Dott. A. Giuffrè Editore, Milano, 1989) pp. 402–404. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, International Court of Justice, [2007] icj Reports p. 43, paras. 430 and 432. The requirement of ‘factual capability’ also derives from the icj’s decision in United States Diplomatic and Consular Staff in Tehran (us v. Iran), 24 May 1980, International Court of Justice, [1980] icj Reports p. 3, where the Court determined the Iranian authorities’ responsibility on the basis of various elements including the fact that they “had the means at their disposal to perform their obligations” (at para. 68).

68

Barros

there is more to discuss about the World Bank’s lending practices or the un Security Council targeted sanctions regime, to name but a few examples, than just the responsibility of these entities for alleged human rights violations. When it comes to World Bank operations, any evaluation of representativeness should pay attention to the unfolding of decision-making processes within the Bank. A fundamental component of these processes relates to the preparatory work and project-specific information that is gathered by the Bank’s staff, which then feeds into the Executive Directors’ decision to approve or reject a proposal for a loan. For instance, the Bank’s Operational Policy 4.01 on Environmental Assessment requires an evaluation of the environmental impacts of projects proposed for Bank financing82 and, when it comes to projects entailing a higher magnitude of potential environmental impacts, the borrower is requested to consult project-affected groups and local ngos and to take their views into account.83 This and other policies84 (even if currently under revision)85 show that there is a non-negligible human rights dimension inherent in the Bank’s policies that must be catered for prior to the approval of a loan. While it might be unreasonable to require member States to undertake such environmental and social assessments themselves, it is clear that, at the very minimum, State representatives must satisfy themselves that the Bank’s own policy prescriptions, interpreted in light of the human rights regime, have been met throughout the identification, preparation and appraisal phases of projects and programmes.86 Essentially, this means that prior to taking a decision, Executive Directors must be well informed about the environmental and human rights impacts of the project subject to their approval87 and must make 82

See para. 1 of op 4.01 on Environmental Assessment, from January 1999 and revised on April 2013. 83 Ibid., para. 14, read in conjunction with para. 8 (a)(b). 84 See, inter alia, paras. 9–11 of op 4.10 on Indigenous Peoples, adopted in 2005 and revised in 2013, regarding free, prior and informed consultation. 85 For detailed information on the World Bank's environmental and social safeguard review process, see . 86 Margot E. Salomon, ‘International Economic Governance and Human Rights Accountability’, in M. Salomon, A. Tostensen and W. Vandenhole (eds.), Casting the Net Wider: Human Rights, Development and New Duty-Bearers (Intersentia, Antwerp, 2007) p. 181. 87 In the Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20 April 2010, International Court of Justice, [2010] icj Reports p. 14, the icj asserted that the practice of carrying out environmental impact assessments has in recent years “gained so much acceptance among States that it may now be considered a requirement under general international law”, provided that the activity at stake presents a risk of producing

Member States and the International Legal (Dis)order

69

sure that the latter will not result in a disproportional interference with the enjoyment of human rights in the borrowing country. Where injurious interference is unavoidable, Executive Directors must confirm that mitigation measures have been envisaged, such as compensation to victims and other sorts of ‘safety nets’.88 As for responsiveness, it is doubtful whether this principle has been dully accounted for in the Bank’s institutional framework: despite the member States’ commendable initiative of setting up an Inspection Panel,89 this internal accountability mechanism only has recommendatory powers, it does not  apply human rights law and does not offer reparation to victims; while project-related grievances may be addressed through project-level grievance mechanisms and the Grievance Redress Service (website available at: www. worldbank.org/grs) — recently established to fill several gaps in the Bank's responsiveness — these mechanisms too fall short in applying human rights law; and finally, external mechanisms (i.e. domestic courts) cannot but grapple  with issues of immunity. The inexistence of an independent system — both within the Bank and external to it — for the settlement of disputes, able to effectively protect individuals under the requirements of the human rights regime, has direct implications for member States. It may imply that the  organization’s immunity from the domestic jurisdiction of member States be rejected or, in alternative, that other dispute settlement mechanisms, such as arbitration, are duly ensured.90 According to the jurisprudence so far

88 89 90

significant adverse environmental impacts (at para. 204). The icj moreover asserted that the failure to undertake an environmental impact assessment in such context would constitute a violation of “due diligence, and the duty of vigilance and prevention which it implies” (ibid.). While it is true that human rights impact assessments are less well-established, it is noteworthy that in recent years a growing interest in their use has emerged. For example, various un human rights mechanisms and several un Special Rapporteurs have put forward the need to undertake human rights impact assessments, as described in a report prepared by the Nordic Trust Fund: World Bank, Study on Human Rights Impact Assessments: A Review of the Literature, Differences with other Forms of Assessments and Relevance for Development (February 2013) pp. 4–6. Sigrun Skogly, The Human Rights Obligations of the World Bank and the imf (Wolf Legal Publishers, Oisterwijk, 2003) p. 51. See the World Bank Executive Directors’ Resolution No. ibrd 93–10 and Resolution No. ida 93–6, ‘The World Bank Inspection Panel’, adopted on 22 September 1993. Rutsel J. Martha, ‘International Financial Institutions and Claims of Private Parties: Immunity Obliges’, in The World Bank Legal Review: International Financial Institutions and Global Legal Governance (2012), pp. 92–131.

70

Barros

developed by the ecthr, this is so required by the duty of State Parties to the European Convention to respect the right to a fair trial.91 Similar arguments could be made with regard to the un Security Council sanctions regime. Member State responsibility for the implementation of un Security Council resolutions in this context is already addressed elsewhere in this special forum.92 For present purposes, it suffices to note that following intense debates surrounding the Kadi cases,93 an independent and impartial mechanism in the form of the ‘Office of the Ombudsperson’ was set up to assess delisting requests from individuals.94 The recommendations to delist made by the Ombudsperson to the Sanctions Committee can be reversed by a consensual decision of the latter and, in the absence of consensus, the power to decide on delisting ultimately lies with the Security Council, which steps in upon referral by the Sanctions Committee.95 Within this framework, the case for member State responsibility for failure to exercise due diligence in securing due process guarantees could be made with regard to the terms in which the sanctions regime was set up; to their own listing submissions to the Sanctions Committee;96 or to their participation in un Security Council decisions to delist or prevent delisting.97 With regard to the latter, member States are required to diligently ensure that their own decision to reverse the recommendation of the Ombudsperson is human rights-compliant, and also, that the recommendation made by the Ombudsperson itself satisfies such a requirement. In all such hypotheses, it should be emphasized that it is not the conduct of the international organization that is attributed to the State, but it is rather the States’ own omission to exercise due diligence in the fulfillment of its human 91

See Waite and Kennedy v. Germany, 18 February 1999, European Court of Human Rights, App. No. 26083/94, echr Reports 1999–i, para. 67, where the ecthr held that: “where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organizations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights” (emphasis added). 92 See the contribution of Antonios Tzanakopoulos to this special forum, ‘Sharing Responsibility for un Targeted Sanctions’. 93 See, inter alia, the joined Cases C-402/05 P and C-415/05 P, Kadi et al. v. Council, 3 September 2008, European Court of Justice (Grand Chamber) ecr i-6351 (‘Kadi I’). 94 In un Security Council Resolution 1904 (17 December 2009) un Doc s/res/1904. 95 See clause 27 of un Security Council Resolution 1989 (17 June 2011), un Doc s/res/1989, and clause 43 of un Security Council Resolution 2161 (17 June 2014) un Doc. s/res/2161. 96 See clauses 12–15 of un Security Council Resolution 1989, supra note 95. 97 See, inter alia, Pasquale De Sena and Maria Chiara Vitucci, ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values’ (2009) 20 The European Journal of International Law p. 227, at p. 228.

Member States and the International Legal (Dis)order

71

rights obligations that is directly attributable to it.98 In this vein, due diligence assumes an important preventive role which, when applied to member State conduct, brings to mind the important message that also when they act in institutional frameworks, States must be proactive in securing the rights of individuals. 4 Conclusion The present contribution delved into the legal setting within which member States operate at the global level and inquired whether the constraining character of the international legal order is sufficiently developed so as to be brought to bear when it comes to the governance functions they perform within international organizations. By acknowledging that States still exercise sovereign powers after adhering to international organizations, the paper explored the terms in which that particular form of member States’ (remaining) power triggers responsibility. Essentially, it was asserted that, in view of their oversight and ‘authority management’ duties, member States are required to ensure that exercises of power are both representative of, and responsive to, the interests of those affected by institutional operations. Such guaranteeing obligations come into being with the design of the international organization’s operational framework, and endure throughout the States’ participation in the endeavours of the organization, as required by due diligence prescriptions. With these insights the paper serves as a reminder that constitutional approaches in international institutional law should not only dwell upon the exercise of sovereign powers by international organizations but also upon the margin that is left for member States to partake in such an exercise — in that, as was seen, member States affect institutional outcomes, and thereby impact (even if indirectly) the lives of individuals. In a global governance scheme wherein international organizations are embraced as international legal subjects, with their own responsibilities, (member) States are, and will remain, the ultimate source of responsibility for governance. With member States’ ‘new’ governance role come ‘new’ responsibilities, and international law cannot be deemed in order if it does not sufficiently accommodate, and constrain, member State power accordingly. 98

As asserted by the icj in the Genocide case, supra note 81, para. 432, the breach of due diligence results from a “failure to adopt and implement suitable measures to prevent”, and the “violation of the obligation to prevent results from omission”.

chapter 5

Member States and International Legal Responsibility Developments of the Institutional Veil Catherine Brölmann 1 Introduction As forms of political organization vary and levels of governance multiply, the subject of international organizations as legal creatures is topical as ever. Part of that topicality is related to scenarios of legal responsibility: traditionally the hallmark of fully-fledged participation in a legal system. Actions of the United Nations in Haiti,1 or in Srebrenica,2 and of Euratom3 or the European Patent Office4 in the Netherlands, have raised high profile questions regarding the legal accountability of international organizations. In the commentary to an early version of the Articles on Responsibility of States for internationally wrongful acts (‘ars’) the International Law Commission (‘ilc’) stated: ‘it must not be forgotten that, by their very nature, international organizations normally  behave in such a manner as not to commit internationally wrongful acts’.5 By now, organizations have come of age as independent legal actors, as 1 Center for Economic and Policy Research, ‘Ban Ki-moon Explains to Congress Why the un Won’t be Held Accountable for Cholera in Haiti’ (27 February 2015), available at: . 2 See notes 58 and 66 below and the accompanying text. 3 Greenpeace Nederland and Procurator General at the Supreme Court of the Netherlands (intervening) v. Euratom, 13 November 2007, Supreme Court, ildc 838 (nl 2007); and see also the comment on this case by C. Brölmann available at . 4 E.g. at the time of writing, the most recent decision was Staff Union of the European Patent Office v. The European Patent Office, 17 February 2015, District Court The Hague, Case No. 200.141.812/01. 5 ilc, ‘Text of articles 10 to 15 and commentaries thereto as adopted by the Commission at its twenty-seventh session’, [1975] 2 Yearbook of the International Law Commission, former draft Art. 13, p. 87 para. 3 (emphasis added). Both the Article and the commentary were adopted without change in 1996 (see un Doc a/51/10 and Corr. l, p. 66).

* The author is grateful to Janne Nijman and to the reviewers of this special forum for their helpful comments on an earlier draft.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_006

Member States and International Legal Responsibility

73

is epitomized by the adoption in 2011 of the ilc Articles on the Responsibility of International Organizations (‘ario’).6 A complicating factor in any legal scenario involving international organizations is the dimension of the member States. These are unlike the component elements of any other legal actor, including of the State itself. Prominent international legal persons in their own right, member States bring in an additional layer, which however lies behind the legal shell that clothes the international organization as a legal entity. This also constitutes a separation between the institutional legal order of the organization and general international law, which has existed ever since organizations were attributed a separate legal identity,7 but was not always named as the conceptual linchpin that it arguably is. The metaphor of the ‘institutional veil’ is used to make this tangible (in Section 2). The growing prominence in our time of international organizations as international actors brings up the question as to whether the institutional veil, too, has been subject to development. This paper aims to address that question and to examine in semi-broad strokes the position of international organizations’ member States in the context of international legal responsibility, with reference to pertinent provisions in the ario. This leads to the finding that there are four legal contexts in which the institutional veil of an organization has a central role, the first two being the best known, and therefore discussed with more detail: subsidiary responsibility of member States (Section 3); the attribution of conduct to member States (Section 4); the ‘attribution of responsibility’ to member States (Section 5), and the bypassing of the institutional veil to establish independent responsibility of member States based on a material link with the wrongful act of the organization or the injurious circumstances (Section  6). Whereas in the first case the institutional veil seems to have remained consistently impervious, in the other cases the institutional veil in the last 10 years appears to have been contested, engaged with, and pushed to different degrees of transparency. The paper concludes with some considerations regarding the politics of the institutional veil (Section 7).

6 ilc, ilc Report, un Doc a/66/10 (2011) pp. 50–170; see also un General Assembly Resolution 66/100 (9 December 2011), un Doc a/res/66/100. 7 Paul Reuter, Institutions Internationales (Presses Universitaires de France, Paris, 1975), Chapters 1 & 2.

74 2

Brölmann

The Institutional Veil of International Organizations

The metaphor of the ‘institutional veil’ was introduced on an earlier occasion,8 in the context of the law of treaties, for conceptualization of the legal shell that clothes an international organization as a legal entity, in the same way as the ‘sovereign veil’ of the state or the ‘corporate veil’ of a company.9 That legal shell is also the separation between the institutional legal order of the organization and general international law.10 The institutional veil can thus serve as an analytical tool for considering the degree of ‘visibility’ of the internal institutional order of international organizations (‘igos’), which includes the member States. It notably serves to look at the position of member States and their relation with the organization from the outside perspective of general international law, rather than from within the institutional order of the organization (as would be traditionally the angle of the sub-discipline of ‘the law of international organizations’). The outside perspective is increasingly relevant in view of the ever more frequent dealings of organizations with third states. Otherwise, for an external examination of the complex interplay between organizations and their member States, the ‘institutional veil’ seems a more helpful conceptual linchpin than for example the organization’s ‘international legal personality’; the latter being a binary notion, essentially uncontested as a legal feature when it comes to regular international organizations, while in its contemporary meaning of an ex post label the term has little explanatory power.11

8 9

10

11

Catherine Brölmann, The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Hart Publishing, Oxford, 2007). See also Christiane Ahlborn, ‘To Share or Not to Share? The Allocation of Responsibility between International Organizations and their Member States’, shares Research Paper 28 (2013), acil 2013–26, who addresses organizations’ ‘corporate veil’ (but see, on associative confusion, note 47 below); and Cedric Ryngaert and Holly Buchanan, ‘Member State Responsibility for the Acts of International Organizations’ (2011) 7 Utrecht Law Review p. 131, who mention the ‘organizational veil’. This chapter employs the term ‘institutional (legal order)’ in order to steer clear of the debate on the extent to which the rules of the organization qualify as ‘internal’ and to what extent as ‘international’; this part of the legislative history of the ario has been carefully analyzed in Christiane Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’, (2011) 8 International Organizations Law Review pp. 397–482. See e.g. in Henry Schermers and Niels Blokker, International Institutional Law: Unity Within Diversity (5th ed.) (Nijhoff-Brill, Leiden, 2011), para. 44.

Member States and International Legal Responsibility

75

The ‘institutional veil’ has been used in addition to make some theoretical claims that are relevant in the present context of legal personality as well.12 The first proposition is that the institutional veil (unlike the ‘sovereign veil’ of States in its classic manifestation) has a transparent quality. Such due to the particular doctrinal and systemic setup of organizations, coupled with their dual function: as vehicles for States, and as independent actors. Organizations are “institutions of limited and delegated powers, lacking the plenary rights of sovereigns under international law,”13 and established on a functional, rather than territorial basis. The organization’s legal sphere is less all-encompassing and self-contained than that of a State, and already for that reason conceptualized as more legally permeable. The second proposition is that this quality is not static, but that the institutional veil of organizations appears with different degrees of transparency, depending on the context. It means that member States in some cases are legally visible, and in other cases less so. This can be gleaned for example in (the legislative history of) several provisions of the 1986 Convention on the Law of Treaties. (‘vlct’)14 Such legal transparency on the other hand is seldom found in States in relation to the law of treaties: a rare example of lifting of the sovereign veil is the combination of Articles 51 (Coercion of a representative of a State) and 52 (Coercion of a State) of the 1969 Convention on the Law of Treaties. The dual imagery and the varying transparency of the institutional veil thus appear in positive law; but they also come up in the social reality of international life (organizations de facto appear in two roles, as fora for States and as independent actors); in the legal-institutional structure of organizations (for example in the contrast between the functions and powers of an expert body and those of a state representative body); in institutional law and in international law doctrine (for one, because doctrine hinges on the tenet of state sovereignty); and in the minds of lawyers and policy-makers (who may have an interest in addressing member States directly or, on the other hand, not at all). Doctrine is an especially powerful factor, as it is first of all a mind-set, and all the more complex because of the notorious mixture of descriptive and normative arguments. The place of international organizations in the system of international law is often marked by a tension between the push for transparency of the institutional veil on the one hand, and the one-dimensional set-up of the law on the other.

12 13 14

Brölmann (2007), supra note 8. José Alvarez, International Organizations as Law-Makers (oup, Oxford, 2005) p. 15. Elaborated in detail in Brölmann (2007), supra note 8, especially Chapters 1–4 and 11.

76

Brölmann

This is brought out especially clearly in branches of international law such as the law of treaties, which prescribe ‘procedural’ equality and as a consequence onedimensional, unitary legal participants. In such cases ultimately the legal system prevails (as is confirmed by the codification process that led to the vclt, since a legal system of necessity sets the terms for participation of its legal subjects. The typical example is the tortuous history of draft Article 36bis of the vclt on the position of member States with respect to treaties concluded by the organization. The question that occupied the ilc for years was whether member States would be automatically bound to such a treaty, or rather would be regular ‘third States’, or rather would constitute a new, intermediate category. The latter option could not by rules of general international law be accommodated and eventually the draft provision never made it into the Convention.15 This tension, between the transparent and opaque institutional veil (or, in other words: the layered and the one-dimensional legal actor), can also be seen at work in the context of legal responsibility. Even if the law of responsibility poses no systemic obstacle in the same way as the law of treaties to differentiation among legal participants, the challenge remains to formulate a rule of general international law regarding responsibility in relation to member States that holds valid for all international organizations regardless of their institutional setup. Early on, Rosalyn Higgins compared this conundrum to the story of the aforementioned Article 36 bis: ‘in my view the analogy is precise’.16 The institutional veil can be at issue in a rule of positive law that addresses the member States vel non, or in a doctrinal or theoretical construct: in all cases the same spectrum between transparent and opaque is at issue. The transparency of the institutional veil moreover comes up also outside the formal framework of the law of treaties or the law of responsibility: for instance in relation to the exercise of diplomatic protection (in casu in relation to the stockholders of a private company) in the 1970 Barcelona Traction case.17 In a conceptually similar vein, the veil of an organization or one of its organs may be lifted as part of a non-formal process, as for instance in the opening up of the un

15 16 17

Brölmann (2007), supra note 8, pp. 212–225. Rosalyn Higgins, Problems and Process (oup, Oxford, 1994) p. 278 et seq. The Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain), 5 February 1970, International Court of Justice, [1970] icj Reports p. 3, para. 57: “hence, the lifting of the veil is more frequently employed from without”.

Member States and International Legal Responsibility

77

Security Council18 or the General Assembly19 to detect signs of opinio juris of individual States on the basis of voting behaviour. 3

The Institutional Veil and Subsidiary Responsibility of Member States

When an organization incurs responsibility for a wrongful act, but does not comply (whether because it was unable or unwilling) with the obligations stemming from this responsibility, ‘subsidiary’ or ‘secondary’ responsibility is the mechanism by which the member States are then addressed — especially in a financial context often referred to as ‘liability’.20 This is the proverbial ‘piercing of the corporate veil’ as we know it from domestic law, when injured parties actively seek to disband the corporate entity’s legal shell with a view to obtaining their due from the shareholders. International law on this point has been consistently reticent for over thirty years. The question as to whether the member States of an organization may be held responsible in second instance for the wrongful act of an organization came to the fore in a salient manner in the 1980s, in the series of cases on the claims brought by creditors against the member States of the bankrupt Tin Council.21 First of all, the string of decisions and its reception bear out that, by then, doctrine had fully espoused the premise that international organizations are responsible for breaches of obligation in their own right, consistent with the idea that they can be ‘bearers’ of a right or obligation. In addition, the  default rule appeared to be that such responsibility is not coupled with

18

19

20 21

Cf. Walter Schilling, ‘Der Schutz der Menschenrechte gegen Beschlüsse des Sicherheitsrats – Möglichkeiten und Grenzen’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht pp. 343–362. Cf. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), 27 June 1986, International Court of Justice, [1986] icj Reports p. 14, paras. 188, 203, 204. Jan Klabbers, An Introduction to International Organizations Law (cup, Cambridge, 2015), pp. 323–24, on responsibility versus liability and nato. In the present context, most notably Court of Appeal decisions Maclaine Watson & Co. Ltd v. International Tin Council, 26 October 1989, United Kingdom House of Lords, 81 ilr 670; for background facts and analysis see e.g. the commentary by Paolo Palchetti in Cedric Ryngaert (ed-in-chief), I. Dekker, R. Wessel, J. Wouters (eds.), Case Law on International Organizations: Text and Commentary (Oxford University Press, Oxford, 2016) (forthcoming).

78

Brölmann

concurrent responsibility on the part of the member States,22 unless this was provided for in the organization’s constitution.23 Thus, only in second instance obligations stemming from the responsibility would be transferred to the member States, without secondary attribution of conduct. In the oft-cited 1988 Tin Council appeal decisions24 and 1989 decision of the House of Lords,25 the majority of the Court 26 then dismissed the claim of secondary liability on the part of the member States of the Tin Council, inter alia on the ground that there was no indication for the existence of a rule in international law to that effect, although the domestic law analogy according to which legal personality and contracting capacity would automatically entail limited liability was rejected.27 Earlier, the International Chamber of Commerce (‘icc’) in its 1984 interim award on jurisdiction in the Westland Helicopter case had rejected the claim that because the Arab Organization for Industrialization (‘aoi’) had been explicitly granted legal personality, liability on the part of the member States would eo ipso be excluded. The 1984 Award deserves special mention as the reasoning in part constitutes a true secondary piercing of the institutional veil of the aoi (one could say, comparatively workable with four member States). The fact that third parties such as Westland Helicopters Ltd possibly were led to rely on the guarantees given by the members of the aoi, and more generally by a constitutive instrument that especially to Anglo-Saxon readers could 22

23

24

25 26

27

‘Concurrent liability’ in the sense of ‘joint and several liability’ is left out of the account here. The relation between the concepts of ‘liability’ and ‘responsibility’ is complex and ‘concurrent liability’ would not necessarily imply simultaneous attribution of the wrongful act: see also Klabbers, supra note 20. See Schermers and Blokker, supra note 11, para. 1585: a textbook example would be the 1972 Convention on International Liability for Damage Caused by Space Objects which provides for joint and several liability of the organization and its member States in case of damage caused by space activities of the organization (see un Doc Res 2777 (xxvi) (29 November 1971), Art xxii.3). Most notably In re International Tin Council, 27 April 1988, uk Court of Appeal, [1988] 3 wlr 1159, 80 ilr 181, and Maclaine Watson v. International Tin Council, 27 April 1988, uk Court of Appeal, (1988) 80 ilr 191. Maclaine Watson & Co. Ltd v. International Tin Council, 26 October 1989, United Kingdom House of Lords, (1989) 81 ilr 670; see commentary by Paolo Palchetti supra note 21. The two other submissions of the creditors —the liability of the member States due to absence of legal personality of the Tin Council, and liability of the member States due to agency of the organization — were dismissed unanimously (80 ilr (1989), p. 49, at pp. 51–53). As held by the Court of Appeal, as articulated in the judgment of Lord Justice Kerr (1989) 80 ilr p. 49, at pp. 101–110; cf. the House of Lords, esp. the judgment of lj Templeman, (1990) 29 ilm at p. 675.

Member States and International Legal Responsibility

79

seem inconclusive about the limited liability of the member States, were considered special circumstances.28 Five years later, the Swiss Federal Tribunal overturned the Award, holding that the organization’s autonomy in several respects clearly pointed to juridical independence of the aoi, which in turn implied the exclusion of liability of the member States.29 In the Partial Award of 1991, the icc then proceeded to examine the possibility of additional liability on the part of the member States on the basis of the constituent instrument(s) in combination with the intention of each individual member State construed from its behaviour. In casu it found that liability could not be ruled out, primarily because the constituent instrument of the aoi did not contain a clause explicitly excluding member States’ liability.30 Put in general terms, the Westland Helicopter cases reveal a struggle to determine the degree of transparency of the institutional veil of the aoi: this is illustrated by the umpires’ grapple, as was pointed out, with the application of domestic analogies and their search for an idiom fitting to describe the constellation of legal facts.31 The Westland Helicopter arbitrations and the Tin Council cases, each only partly connected to the international legal framework,32 then served as a basis for the conclusions of the Institut de Droit International in 1995:33 these held that in international law there was no residual rule to the effect of either liability for member States or exclusion thereof in the absence of a pertinent treaty provision. Special Rapporteur Higgins, however, did envision an intermediate position for member States on the basis of a principle of institutional law: 28 29 30 31

32

33

(1984) 23 ilm p. 1071. (1989) 28 ilm p. 687, at p. 691 et seq. Para. 56 of the Award, quoted in Schermers and Blokker, supra note 11, para. 1588; and in the Commentary to the ario, supra note 6, Art. 62, p. 98 para. 9. Christiane Ahlborn, ‘Commentaries to Westland Helicopters Ltd v. Arab Organization for Industrialization, United Arab Emirates, Kingdom of Saudi Arabia, State of Qatar, Arab Republic of Egypt and Arab British Helicopter Company, Arbitration’, 5 March 1984, (1984) 80 ilr 600; and to Arab Organization for Industrialization and others v. Westland Helicopters Ltd, Swiss 19 July 1988, Federal Supreme Court (First Civil Court), (1988) 80 ilr 652; each extracted in Ryngaert et al (eds), Case Law, supra note 21. It was pointed out early on how the Westland Helicopters awards are an example of transnational rather than international arbitration, subject to appeal to national courts: see Chittharanjan F. Amerasinghe, ‘Review of “The Responsibility of International Organi­ zations toward Third Parties“’ (1996) 45 International and Comparative Law Quarterly pp. 752–754, at p. 753). Special Rapporteur Rosalyn Higgins, ‘The Legal Consequences for Member States of NonFulfilment by International Organizations of their Obligations towards Third Parties: Provisional Report’, (1995) 66(1) Annuaire de l’Institut de Droit International p. 251.

80

Brölmann

the members have a legal obligation to pay their share of expenses if a failure to pay such ‘extra’ sums would entail a failure of an obligation to a third party (Case of Certain Expenses). But there is no principle of general international law beyond this.34 This rule operates at the institutional level — that is, it prevails between the organization and its members — and at the level of general international law rather serves as a conductor for the principle of good faith. Palchetti35 also proposed a duty of member States to provide the organization with sufficient funds to meet its obligations vis-à-vis third parties, which ultimately found its way into Article 40 of the ario. This is a connecting norm of ‘interstitial’ effect36 — with soft normative force (considering the wording of Article 40) — bridging to some extent the interstice between, in this case, the institutional and the general international legal orders. The question of subsidiary responsibility of member States is addressed by Article 62 of the ario, which follows the strict line that had emerged earlier. It may be taken as an indication of the limited urgency of subsidiary responsibility in international practice that the International Law Commission two decades after the study of the Institut de Droit International relied primarily on the same two strings of cases.37 Scholars have dealt with the institutional veil in different ways, even if secondary responsibility (unlike separate responsibility, see below) was generally not accepted. It is perhaps significant that in 1980 (still the heyday of the functional view of international organizations as transparent vehicles for state action)38 Schermers stated: it is … impossible to create international legal persons in such a way as to limit the responsibility of the individual members. Even though international organizations, as international persons, may be held liable under

34 35

Ibid., pp. 284–285. Paolo Palchetti, ‘Exploring Alternative Routes: the Obligation of Members to Enable the Organization to Make Reparation’ in: Maurizio Ragazzi (ed.), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Nijhoff-Brill, Dordrecht, 2011) pp. 303, 309, 311. 36 Along the lines of the ‘interstitial norms’ coined by Vaughan Lowe, ‘The Politics of LawMaking: Are the Method and Character of Norm Creation Changing?’ in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford, oup, 2000) p. 207, at pp. 212–221. 37 ario with commentary, supra note 6, Art. 62 pp. 96–99. 38 Brölmann, supra note 8, Chapter 3.

Member States and International Legal Responsibility

81

international law for the acts they perform, this cannot exclude the secondary liability of the Member States themselves.39 Blokker in 2004, in contrast, advocated an opaque institutional veil with a view to safeguarding the functionality of the organization: “Denying or restricting responsabilité distincte can in the end sacrifice the volonté distincte which is sought.”40 Likewise, Ryngaert in 2011 contended: “Member States do not, and should not, incur responsibility by reason of their membership alone. Deciding otherwise would invite member State intervention in the affairs of ios and erode the latter’s autonomy.”41 Some authors, especially when proceeding from a human rights perspective, have advocated the settling of what seems a general norm regarding the institutional veil in all contexts, imposing subsidiary responsibility for member States: see, for example, the “holistic approach” proposed by Olivier De Schutter.42 Most likely, a rule stating secondary responsibility for the member States has never existed (even if, after the Tin Council crisis, many commodity agreements were found expressly to exclude liability of member States).43 Practice also shows several examples of constituent treaties and treaties concluded by international organizations containing a clause that explicitly excludes the liability of member States,44 but there is no agreement on the legal consequences of the absence of such a provision.45 39 40

41

42

43 44

45

Henry G. Schermers, International Institutional Law, (Nijhoff, Dordrecht, 1980) p. 780. Niels Blokker, ‘International Organizations and Their Members: “International Organi­ zations Belong to All Members and to None” — Variations on a Theme’, (2004) 1 Inter­ national Organizations Law Review pp. 139–161, at p. 161. Cedric Ryngaert, ‘The Responsibility of Member States in Connection with Acts of International Organizations: Assessing the Recent Case Law of the European Court of Human Rights’ (2011) 60 International and Comparative Law Quarterly pp. 997–1017. Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary (oup, Oxford, 2010), ‘alternatives’ mentioned at pp. 228–233; see also Pierre Schmitt, ‘The Right of Access to Justice for Individual Victims of Human Rights Violations by International Organizations (Doctoral thesis, Catholic University Leuven, Faculteit Rechtsgeleerdheid, October2015),whoislessradical,eventhoughheconcludesthatinpracticeremediesaresparse. A list in Schermers and Blokker, supra note 11, para. 1589, note 127. Cf. e.g. the International Cocoa Agreement of 1986 (1446 unts p. 103), which excludes member States’ liability in Art. 22.5 (the International Cocoa Agreement of 1980 (1245 unts p. 221; 1276 unts p. 520), prior to the tin crisis, is silent on the matter). More examples in Schermers & Blokker, supra note 11, para. 1586. Several international organizations, most often financial institutions, exclude the liability of member States in their constitutions: Amerasinghe, supra note 32, p. 270. E.g., Amerasinghe, supra note 32, p. 272 (the scarce practice with regard to inclusion of such a provision is “as consistent with a belief that the absence of such a clause would

82

Brölmann

4

The Institutional Veil and Attribution of Conduct to Member States

Another scenario that turns on the subtle legal barrier raised by the institutional veil, and which in actual practice is more prominent than the secondary opening of the veil discussed before, is concerned with attribution of the wrongful conduct as such. In the discourse on responsibility of organizations, it seems that attribution of conduct to member States, on the one hand, and for example subsidiary responsibility on the part of member States, on the other, are not always clearly set apart46 even if these are very different legal scenarios. In this case, the institutional veil opens up at an early stage of the process of determining responsibility.47 While the ario do not expressly address the attribution of conduct to member States, they do set out a framework by treating attribution of conduct to international organizations.48 At this point in time, legal scholarship and practice have been animated most by the context of military operations, and this can also be seen in the ilc commentaries. The current article accordingly takes that focus, without prejudice to the fact that organizations in different functional areas, including economic governance or territorial administration, may encounter issues of responsibility. The ario section on attribution of conduct comprises Article 6, which connects attribution to an organ or agent’s organic link with the organization (mirroring Article 4 of the ars); Article 8 on ultra vires acts (mirroring Article 7 of the ars); and Article 9 on ex post acknowledgment and adoption of conduct (mirroring Article 11 of the ars). No lifting of the institutional veil is envisaged in the scenarios covered by these provisions. This seems uncontroversial, as illustrated for instance by the 2009 Galić case, in which the European Court of Human Rights (‘ECtHR’) held the application to be inadmissible on the ground that acts of the International Criminal Tribunal for the Former Yugoslavia, as a subsidiary organ of the United Nations, were to be attributed to the Organization and not to the member State / host State.49

46

47

48 49

entail liability of members […] as with a desire to make clear ex abundanti cautela that members did not assume such liability”). See e.g. the rich account in José Manuel Cortés Martín, ‘The Responsibility of Members Due to Wrongful Acts of International Organizations’, (2013) 12 Chinese Journal of International Law pp. 679–721. This is one reason why the expression ‘corporate veil’ may create associative confusion if it is used to cover the full dynamic between the organization and the member States, and the different ways in which this takes effect in the context of legal responsibility. Arts. 6–9 ario. Galić v. the Netherlands, 9 June 2009, European Court of Human Rights, App. No. 22617/07.

Member States and International Legal Responsibility

83

Of the ario section on attribution of conduct, Article 7 (Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization) has received the most attention. Such attention is in contrast to that shown to the related Article 6 of the ars, which was generally outshone by Articles 4, 5 and 8 on the attribution of conduct to States. On the other hand, in the context of the responsibility of organizations, the provision regarding organs or agents50 placed at the disposal of another is quite prominent, most likely because of the intricate practice of some organizations and troop contributing nations (‘tcns’). A central feature of Article 7 of the ario is the requirement of effective control, which does not play a role for organs and agents of the organization (Article 6 of the ario). This brings forth a number of observations. One is that the standard for deciding whether the institutional veil of the receiving organization also covers the organ provided, or whether on the other hand the veil is made transparent so that the provided organ maintains its own identity for legal responsibility purposes, is an open norm.51 The connection between the organ or agent and the lending tcn remains in place (see below) until the effectiveness or factualness of another link prevails and the organ becomes a part of the receiving organization. The mechanism is no different when an organization is the troop contributor.52 It may be recalled that in the case of organs provided to States (Article 6 of the ARS), ‘control’ is not the deciding factor, but rather the more formal — if essentially contested — qualification of ‘governmental authority’. A second observation is that while military operations in a United Nations framework are a prime context for the application of Article 7, there is a divergence between the approach of the ilc (based on the ‘effective control’ test in the 1986 Nicaragua case and the 2007 Genocide case) and the ‘normative control’ or ‘(operational) command and control’ test used by the un: [i]t has been the long-established position of the United Nations … that forces placed at the disposal of the United Nations are “transformed” into 50

51

52

Art. 7 ario reads “The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.” (emphasis added). See also Kristen E. Boon, ‘Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines’ in (2014) 15(2) Melbourne Journal of International Law pp. 330–377. Cf. e.g. the ecowas military mission afisma that on 1 July 2013 transferred its authority to, and became part of, the United Nations Multidimensional Integrated Stabilization Mission in Mali (minusma); unsc Resolution 2100 (April 2013).

84

Brölmann

a United Nations subsidiary organ and, as such, entail the responsibility of the Organization, just like any other subsidiary organ, regardless of whether the control exercised over all aspects of the operation was, in fact, “effective”.53 The approach taken by the un also appears to have been the point of departure for leading judicial decisions in this area.54 As has been pointed out, while in the ario scheme conduct is attributed to the tcn unless the receiving organization directs the conduct, the Behrami and Saramati55 and Nuhanović cases (see below) “adopt the opposite position, attributing all conduct to the lead organization (unless a contributor overrides its command and directs the conduct).”56 The two strings of cases in Dutch domestic courts following the 1995 tragedy in Srebrenica can be taken as an indication of the state of international law. In the cases brought by the Mothers of Srebrenica Association, conduct of the Dutchbat contingent was consistently attributed to the United Nations (the unfortunate combination with immunity granted to organizations in domestic courts, is addressed in Section 7). The courts held that the 7000 Bosniak men who had fled to the woods outside the compound (and, according to several claimants, had done so on the basis of hand signals by Dutch soldiers), had not been under the effective control of Dutchbat, and the conduct that led to the men’s fate hence was not attributable to the Dutch state.57 The second series of cases were brought by Hasan Nuhanović and by the family of Rizo Mustafić, a un employee ordered by his employers to leave the Potočari base. The bases of the action include allegations, inter alia, that the Dutch State was involved in genocide and violated fundamental human rights 53 54

55

56

57

17 Feb 2011, un Doc. a/cn.4/637/Add.1, p 12. Kjetil Mujezinović Larsen, ‘Attribution of Conduct in Peace Operations: The ‘Ultimate Authority and Control’ Test’, ejil (2008), Vol. 19, pp. 509–531; see also mapping of the debate in Kjetil Mujezinović Larsen, The Human Rights Treaty Obligations of Peacekeepers (cup, Cambridge, 2012) pp. 116–117. In which the European Court of Human Rights found the conduct of unmik and kfor troops in Kosovo to be attributable to the United Nations rather than to France or Norway (App. No. 71412/01 Agim Behrami and Bekir Behrami v. France, and App. No. 78166/01 Ruzhdi Saramati v. France, Germany and Norway, Grand Chamber decision of 2 May 2007, paras. 133 et seq.) See the contribution of Tom Dannenbaum to this special forum, ‘Dual Attribution in the Context of Military Operations’, p. 411, where he gives a detailed analysis of different forms of ‘control’ at issue in relation to possible dual attribution. See for the list of cases infra note 66.

Member States and International Legal Responsibility

85

by handing Mustafić and Nuhanović’s family members over to the BosnianSerb enemy. The District Court then determined that ‘operational command and control’ over the Dutchbat troops had been transferred to the United Nations and that the claimants had not submitted anything pointing to restrictions on this transfer of command. The Court of Appeal of The Hague in 2011, however, held differently. This decision was upheld in 2013 by the Dutch Supreme Court, which confirmed that the Netherlands was responsible in relation to the death of three Bosniak men in Srebrenica, attributing the conduct to the Dutch state.58 Especially relevant in the present context is that the Dutch Supreme Court’s findings turned on the given fact that Dutchbat had effective control59 over the three men who fell victim to the Bosnian-Serb military after they were sent off the compound. Otherwise, the Court opened new doctrinal horizons by recognizing (but not applying) the possibility of multiple attribution.60 In 2014, in a new case brought by the Mothers of Srebrenica Association the District Court of The Hague found the Netherlands responsible for the deaths of 300 Bosniak men who had been — unlike the 7000 victims mentioned before — within the state’s control.61 Again the concept of effective control (which the Court defined as “factual control”)62 was a central element in the Court’s reasoning. The Court also referred to the Nuhanović case to reconfirm that a state and an organization can both have effective control and “hence, potentially, [share] responsibility, despite the un’s presumptive immunity.”63 At the time of writing, the Dutch state has lodged an appeal. Thus, when it comes to attribution of conduct, current doctrine and practice point to an institutional veil that is rather impermeable. This is clear for example from the provisions in the ario, which seems unchallenged by practice. If we look at the specific situation of organizations that make use of provided organs — or, in the example from practice that is used most often, of troops put 58

59 60

61 62 63

See District Court The Hague, 10 Sept 2008, [M. M.-M.], [D. M.] and [A. M.] v The Netherlands; Appeals Court The Hague, 5 July 2011; N. et al v The Netherlands; Dutch Supreme Court, 6 Sept 2013, N. et al v. The Netherlands. Supreme Court case, ibid., para. 3.11.2; see on control and dual attribution Dannenbaum, supra note 56. Cf. Bérénice Boutin, The Role of Control in Allocating International Responsibility in Collaborative Military Operations, Doctoral dissertation (University of Amsterdam, October 2015), chapter 4. ecli:nl:rbdha:2014:8748; see paras. 4.87 – 88. Ibid., para. 4.33. Kristen Boon, Opinio Juris blogpost (http://opiniojuris.org/2014/07/17/mothers-srebrenica -decision-dutch-high-court-holds-netherlands-responsible-300-deaths-1995-massacre/).

86

Brölmann

at an organization’s disposal by another organization or by states — the image is more fuzzy. According to Article 7 of the ario, the organic link established between the receiving organization and the provided organ becomes relevant only with proof of effective control by the receiving organization. In other words, the provided organ moves behind the institutional veil of the receiving (or in this context ‘leading’) organization, to which wrongful conduct would be attributed. The approach of the un, on the other hand, is that contributed troops will automatically move behind the institutional veil of the Organization, unless there is a clear indication of effective control on the part of the state or organization from which the troops originate; in which case, the institutional veil of the receiving state will be permeated and the wrongful conduct attributed to the original state. Even if recent case law on some points seems to concur with the un view, it is safe to say that the jury is out on what the received approach will be, considering the recent date of the ario, the fact that the un focuses on the field of peace operations and does not seem to be aiming for a principled statement on attribution, and the developments in the field of peace operations. In the latter field in particular, the debate concerning the responsibility of organizations and member States is complex, and sometimes mixes questions of the attribution of conduct with questions of immunity from jurisdiction (which would involve the institutional veil, if at all, only indirectly). For one, this goes to show that political and moral stakes are high. The activity of the United Nations in the last decade has made very clear how the attribution of conduct in the context of a military operation to the organization usually coincides with immunity granted to the organization before domestic courts,64 and with a lack of standing of the organization (or lack of jurisdiction ratione personae) before non-domestic courts,65 both of which cause a deplorable gap in the legal protection of individuals.66 64 65

66

Cf. the work by August Reinisch, first in International Organizations before National Courts, Cambridge University Press, 2000. An early analysis, including claims settlement practices of international organizations in Kirsten Schmalenbach, Die Haftung Internationaler Organizationen im Rahmen von Militäreinsätzen und Territorialverwaltungen (Peter Lang, Frankfurt am Main, 2004). The thread of cases brought by the association Mothers of Srebrenica is an example: District Court The Hague, 10 July 2008, Association Mothers of Srebrenica et al v. The Netherlands and the United Nations (… concludes that in international-law practice absolute immunity of the un is the standard and is respected, and that the interpretation of article 105 of the un Charter offers no basis for restriction of the immunity of the un. The court declares it has no competence to hear the action instituted against the un); Appeals Court The Hague, 30 March 2010, Association Mothers of Srebrenica et al v. The Netherlands

Member States and International Legal Responsibility

5

87

The Institutional Veil and the ‘Attribution of Responsibility’ to Member States

An uneasy category generally set apart includes scenarios which give rise to the ‘indirect responsibility’ or the ‘attribution of responsibility’ (rather than attribution of conduct)67 to member States in relation to a wrongful act committed by the organization. By opening up the institutional veil, such a relation can be established. The ilc has also accepted this category. Part v of the ario comprising Articles 58–6268 groups together provisions that are geared towards States,69 but which engage the responsibility of member States “in connection with” wrongful acts of an organization in different ways.70 Part v has been likened to a conceptual hotchpotch for all those situations that did not fit with the binary concept of wrongfulness but which were still deemed sufficiently problematic to be included into the law of international responsibility.71 Indeed, the lens of the institutional veil makes clear that the provisions differ from each other in a fundamental way. The ario includes two provisions that look to a situation which involves one and the same breach of obligation (using the phrase “is internationally responsible for that act”), without there being attribution of conduct. This is along the lines of the ‘indirect responsibility’

67

68 69

70 71

and the United Nations (r.o. 5.14) “The conclusion must be that no unacceptable infringement exists of Articles 6 echr and Art. 14 iccpr if the Dutch Court upholds the immunity from jurisdiction accorded to the United Nations in this case”; upheld in Dutch Supreme Court, 13 April 2012, Association Mothers of Srebrenica et al v. The Netherlands and the United Nations; European Court for Human Rights, 27 June 2013: “the grant of immunity to the un served a legitimate purpose and was not disproportionate.” [para. 169]. See analysis of indirect responsibility (even if that article focuses on the indirect responsibility of organizations) in Nataša Nedeski and André Nollkaemper, ‘Responsibility of International Organizations “in connection with acts of States”’, (2012) 9 International Organizations Law Review, pp. 33–52. Articles 58 to 60 are concerned with both member States and third states, which thus could entail opening up the institutional veil but also could not do so. “In accordance with article 1, paragraph 2, the present draft articles are intended to fill a gap that was deliberately left in the articles on the responsibility of States for internationally wrongful acts….” (Yearbook of the International Law Commission 2011, vol. ii (Part Two), p. 141). See the - purposely flexible - title of Part Two - Chapter iv, and of Part Five of the ario. Set out succinctly in Jean d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility’ (2012) 9 International Organizations Law Review pp. 15–28, at p. 24.

88

Brölmann

envisioned by Roberto Ago:72 Article 59 (Direction and control exercised by a State over the commission of an internationally wrongful act by an international organization) and Article 60 (Coercion of an international organization by a State), which closely follow the text of Articles 17 and 18 of the ars. At this point, no examples from practice seem to exist. Articles 59 and 60 may be taken as a genuine ‘conceptual subterfuge,’73 in the sense of a third way, out of the binary categorization that hinges on the attribution of wrongful conduct. In these cases the institutional veil is permeated to establish whether the member State is directing, controlling or coercing the organization to commit a particular act. The remaining provisions in Part Five in turn fit in different categories, and it could be argued that it is meaningful and analytically helpful to put them there. As has been discussed above, Article 62 does involve responsibility of member States for the wrongful act of the organization, but the scenario is a special — and classic — case of subsidiary ‘piercing’ of the veil (see Section 3). The institutional veil is permeated in second instance (even if that could be agreed beforehand), once it has been established that the organization will not pay its dues to the (in the words of Article 62) “injured party.” Articles 58 and 61, on the other hand, envisage legal responsibility for separate conduct (i.e. not attributed to the organization) coupled with a separate breach of obligation on the part of the member State (see below in Section 6). 6

Bypassing the Institutional Veil and the Material Link to Responsibility of Member States

In some cases the institutional veil ends up being ‘bypassed’ rather than permeated or lifted. These are the scenarios in which a member State technically incurs responsibility for its own, separate conduct, which in turns constitutes a breach of obligation separate from the contested act of the organization. Once the institutional veil has been lifted to assess the situation at the level of the member States, it is bypassed as in a formal- legal sense the State is addressed fully independently. There may then be a material link that connects the State’s conduct to the organization. In some situations this material 72 73

Report of the International Law Commission on the work of its forty-eight session, 1996 (a/51/10), p. 61; see Nedeski and Nollkaemper, supra note 67, p. 37. Jean d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility’ (2012) 9 International Organizations Law Review pp. 15–28.

Member States and International Legal Responsibility

89

link to the wrongful act of the organization or the injurious circumstances has been deemed especially important so as to warrant inclusion in the scheme of the ario. This is the case in relation to Articles 58 and 61, where the material link is “aid and assistance” and “circumvention”, respectively. Other scenarios are simply not covered by the ario. As the ilc said, “[n]ot all the questions that may affect the responsibility of a State in connection with the act of an international organization are examined in the present draft articles .… the [ars] will regulate attribution of conduct to the State.”74 The most attention has been attracted by Article 61,75 which deals with member State(s) making improper use of the organization (and the related Article 17 regarding an organization abusing the member State(s)).76 Unlike the complicity provision in Article 58, the proposed rules on ‘circumvention’ have no equivalent in the articles on State responsibility; it was a marked decision of the ilc to lift the institutional veil of the organization in the conceptualization of this provision. The Commission does not reflect on the insertion of the member State layer in the legal analysis.77 As has been pointed out, that additional layer did bring to light (and, it may be argued, created) certain tensions in the systematique of the law of responsibility.78 As for the circumvention scenario, d’Aspremont has proposed a radical bypassing of the institutional veil in the case of an abuse of rights by member States, through “overwhelming and effective control” by member States of the voting process in a manner not foreseen in constitutional procedures of the organization.79 The discourse of the Federal Republic of Yugoslavia (‘fry’) brought against the member States of nato before the International Court of Justice in 1999 is an example of the bypassing of the institutional veil, in a scenario that is not 74 75

76

77 78 79

Commentary to the ario, supra note 30, Part Five, p. 89, para. 2. Cf. Jean d’Aspremont, “Abuse of the Legal Personality of International Organizations and the Responsibility of Member States” (2007) 4 International Organizations Law Review pp. 91–119, which takes issue with an earlier version of Article 61; and Odette Murray, ‘Piercing the Corporate Veil: The Responsibility of Member States of an International Organization’ (2011) 8 International Organizations Law Review pp. 291–347. See the pertinent un comment in un Doc. a/cn.4/637/Add.1 (17 Feb 2011). Article 17 (about abuse by the organization of the member States) naturally opens up the institutional veil in the same way as Article 61, but as it does not address responsibility of member States, is not discussed here. Commentary to the ario, supra note 30, Articles 17 and 61. Nedeski and Nollkaemper, supra note 67. Jean d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 International Organizations Law Review pp. 91–119, at p. 108; the article takes issue with an earlier version of article 61.

90

Brölmann

covered by the ario. The fry implicitly took an approach of ignoring the separate legal personality of the organization (reminiscent of e.g. the former Soviet Union’s dealings with the erstwhile European Communities), and did not bring up for instance an argument that the member States had to step in on a subsidiary basis considering that the organization as such could not be summoned.80 Interestingly, it seems all parties went along with the deconstruction of nato. As has been pointed out, neither the respondent States (apart from Canada in the Hearings) nor the Court have addressed the legal fact of nato’s separate legal identity.81 In a similar vein, Barros and Ryngaert argue that we “look beneath” the institutional veil so as to enter “a parallel sphere of conduct where acts can be performed that engage the responsibility of the State.”82 An actual example of an organization’s decision-making being analyzed and the (for instance voting) behaviour of a State identified, is found in the 2011 icj decision in the case between the Former Yugoslav Republic of Macedonia (‘fyrom’) and Greece.83 In this decision the Court permeated and in the establishment of responsibility then left aside the institutional veil of nato to examine possible responsibility of Greece for its behaviour within nato in light of Greece’s own obligations. This appears to have been “the first time in which the icj so assertively identified the individual conduct of a State in the process of institutional decisionmaking.”84 The authors give a convincing analysis, which underscores the fact that states are always governed by international law, in casu by the law of state responsibility, also when operating within an organization. In some respects the 80

Cf proceedings instituted by the fry against 8 nato member States on 29 April 1999, with identical claims of breached ‘inter-state obligations’ in its regard - reproduced in the judgments (in identical paragraphs 21), claiming i.a. that the respondent state “acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State;”and “…in breach of its obligation not to intervene in the affairs of another State…”. All judgments were handed down on the same day, e.g. Case Concerning Legality of Use of Force (Serbia and Montenegro v. The Netherlands) 15 December 2004, Judgment (preliminary objections), International Court of Justice. 81 Docs cr 19/16, at p. 15 and cr 19/27, at p. 10 – referred to in Schermers and Blokker, supra note 23, para. 1590. 82 See Ana Sofia Barros and Cedric Ryngaert, ‘The Position of Member States in (Autonomous) Institutional Decision-Making: Implications for the Establishment of Responsibility’, (2014) 11 International Organizations Law Review pp. 53–82. 83 Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v. Greece), 5 December 2011, International Court of Justice, [2011] ICJ Rep. p. 644. 84 Barros and Ryngaert, supra note 82, at p. 75 – see analysis (on holding Greece responsible for a separate obligation) at pp. 75–78.

Member States and International Legal Responsibility

91

approach of ‘looking beneath’ the institutional veil is complementary to approaches that ‘engage with’ the institutional veil, in that the former is not geared to tackle the tension that the institutional veil also indicates. Not in all cases it is fair or feasible to resort to a parallel regulatory realm: for example, there may be an issue of a single act that is to be attributed to either the organization or the member States; there may be damages to be paid either by the organization or the member State; or the institutional veil may have to be permeated to establish whether there should be ‘indirect responsibility’ for a member State. With an exhaustive typology of four scenarios turning on the institutional veil in relation to member State responsibility, the question arises of whether the European Union is a special case. Does its political importance, or its degree of integration, have implications for the susceptibility of the Union to regulation by the rules proposed in the ario? This question is addressed in detail in another article in this special forum.85 In very general terms, while recognizing that the Union is institutionally very different from most organizations, the answer would seem to be no, as long as the European Union continues to identify itself as an ‘international organization’ (and not, for example, as a confederative union). As the Union assumes more competences from its member States, the application of Article 6 of the ario is likely to become less complex.86 However, mixed agreements, concluded with third States or organizations, to which both the European Union and the member States are a party — and where each has independently assumed commitments under general international law — could be a special variant of the scenario in which the institutional veil is bypassed. In principle, both the Union and the member States are independently moving at the international law plane for the part covered by their competence. The complex division of competences between the Union and the member States is oftentimes laid down in a “declaration of competences” which accompanies the treaty conclusion. As these declarations are 85 86

See the contribution of Esa Paasivirta to this special forum, ‘Responsibility of Member State of an International Organization: A Special Case for the European Union?’ See comments of the eu to the dario ilc, Responsibility of International Organizations: Comments and Observations received from international organizations’ (31 March 2008, un Doc. a/cn.4/593), p. 4. Cf. Frank Hoffmeister, ‘Litigating against the European Union and Its Member States – Who Responds under the ilc’s Draft Articles on International Responsibility of International Organizations?’, (2010) 21 European Journal of International Law pp. 723–747; and also Pieter Jan Kuijper and Esa Paasivirta advocating against undue lifting the institutional veil of the European Union for reasons of political viability (‘eu International Responsibility and its Attribution: From the Inside Looking Out’, in Malcolm Evans and Panos Koutrakos (eds.), The International Responsibility of the European Union. European and International Perspectives, (Hart Publishing, Oxford, 2013), pp. 35–71, at p. 68.

92

Brölmann

mostly not updated (if only because this would re-open negotiations between the member States and the Commission on how competences are divided), their value as a source of information to treaty partners is limited.87 Their legal status is generally considered as existing within the institutional order of the Union only, but not at the general international plane vis-à-vis third States. This might raise expectations as to a general rule on the institutional veil, especially in relation to the responsibility for breach of mixed accords. Such a rule of general international law, however, is not in place. Arguments of commentators and claims of treaty partners that eu member States and the organization are jointly and severally responsible for breach of treaty obligations, have not been generally honoured. Arrangements seem to be made on a case by case basis.88 Also a report of the cavv concluded no such general rule of international law exists; it added, however, that the separation between the legal sphere in which the member States and the Union interact, on the one hand, and the general plane of international where legal relation with third states and organizations are maintained, on the other hand, is and should be bridged by application of the good faith principle.89 The proposition made by, among others, Paasivirta is that [s]hould the eu/Member States not fulfil the duty of communication, it would be followed by joint responsibility. …. The possibility … can be seen in a sense as a self-chosen potential external outcome following from internal preference for mixed participation in international treaties.90 7

Concluding Remarks

The institutional veil has different shades, but in all cases it constitutes a separation between the institutional sphere — in which the states qua member 87

88

89 90

Pieter Jan Kuijper, ‘Mixed Agreements Revisited, The eu and its Member States in the World’ in C. Hillion & P. Koutrakos (eds.), International Responsibility for eu Mixed Agreements (Hart Publishing, Oxford-Oregon, 2010), pp. 208–227. As concluded also e.g. in André Nollkaemper, ‘Joint responsibility between the eu and member States for nonperformance of obligations under multilateral environmental agreements’ in Elisa Morgera (ed.), The External Environmental Policy of the European Union (cup, Cambridge, 2012) pp. cavv Advisory Report no. 24 (May 2014) on european union external action and international law (translation), available at http://www.cavv-advies.nl/3bz/home.html. Esa Paasivirta, ‘Responsibility of Member State of an International organization: A Special Case for the European Union?’, in the current special forum.

Member States and International Legal Responsibility

93

States reside — and the sphere of general international law. Authors and commentators have grappled with the institutional veil and have come up with different views, as witnessed by the examples given above. The International Law Commission has acknowledged the transparency of the institutional veil: [T]he internal law of an international organization cannot be sharply differentiated from international law. At least the constituent instrument of the international organization is a treaty or another instrument governed by international law; some further parts of the internal law of the organization may be viewed as belonging to international law….91 But the Special Rapporteur had also recognized its impermeable aspect: “the relations between international law and the internal law of an international organization appear too complex to be expressed in a general principle”.92 For an external international law perspective on legal responsibility of organizations and their member States, the institutional veil is the conceptual linchpin for analysis: the legal shell that clothes the international organization as a legal entity, to varying degrees leaving the member States legally ‘visible’ and engaged with the level of general international law. A cursory view of the law and practice of international legal responsibility through this lens suggests a number of findings. First, this paper identifies four scenarios that play a role in the theory, doctrine and practice, in which the institutional veil is permeated to some extent: the subsidiary responsibility of member States; the attribution of conduct to member States; the ‘attribution of responsibility’ to member States; and the bypassing of the institutional veil to establish independent responsibility of a member State with a material link to the acts of the organization. The institutional veil may be the subject of positive law provisions, but it is also present in the mind of lawyers and policymakers whenever there is room for discretion, discussion, theorization or a normative agenda on the division of legal responsibility between organizations and their member States. Second, when it comes to subsidiary responsibility of member States following the wrongful act of an organization, the institutional veil is, and has been, consistently opaque. Judges, drafters and scholars seem to have been generally in agreement on this ever since the 1980s Tin Council cases.

91 Commentary to the ario, supra note 30, Article 5, para. 2. 92 2003 ilc Report, un Doc a/58/10, at p. 48 (emphasis added).

94

Brölmann

Third, when it comes to other scenarios, especially that of attribution of wrongful conduct to the member States, the institutional veil is (it seems, increasingly) challenged for transparency. A likely factor of inspiration in the intense doctrinal explorations and discussions on this point is the combination of attribution of conduct to an international organization, on the one hand, and the organization’s immunity from process before a domestic court, or lack of standing before an international court, on the other. The resulting lack of legal remedies for individuals may have been also a push factor for considering, as did the Dutch judiciary in the Mustafić-Nuhanović cases,93 the possibility of dual attribution or ‘shared responsibility’; and which in turn trains the discourse towards increased transparency of the institutional veil. In this vein, it has been argued that the concept of dual attribution has played an odd role .… [T]he primary value of its theoretical possibility has been in empowering courts to hear cases they might otherwise have avoided, while failing actually to attribute conduct to two or more entities.94 Fourth, as the institutional veil also constitutes a separation between the organization’s institutional order on the hand and general international law on the other, there is frequently need for interstitial norms to make the connection. The examples of the eu’s declarations of competence, and of the general duty for member States to enable the organization to pay it dues suggest that (rules based on) the principle of good faith could be taking up that function.

93 Supra notes 58 and 59. 94 Dannenbaum, supra note 56.

chapter 6

International Responsibility and the Constitution of Power International Organizations Bolstered Jean d’Aspremont 1 Introduction With an emphasis on the oft-discussed question of the apportionment of responsibility between international organizations and member States, this chapter argues that international responsibility constitutes, rather than constrains, power. In doing so, this chapter contests mainstream accounts of international responsibility and argues that the act of subjecting certain forms of conduct to the regime of international responsibility has a constitutive dimension. It therefore seeks to offer a counter-point to the mainstream studies of international responsibility which all embrace an accountability-based perspective. Simultaneously, it shows that international lawyers are not bound to eternally appraise the law of international responsibility from the vantage point of accountability, and that it is possible to envisage the law of international responsibility from the perspective of the power it constitutes. This chapter starts with some introductory remarks on the extent to which responsibility ought to be understood as a set of formal modes of legal reasoning through which the determination and allocation of the burden of compensation is debated (in Section  2), as well as a few reminders of the political choices that informed the design of its main formal modes of legal reasoning (in Section 3). After showing how the rules on the responsibility of States are constitutive of the power of States (Section 4), the article’s attention turns to the claim that the regime of responsibility of international organizations similarly constitutes the power of international organizations and their member States (Section 5). This articles ends with some remarks on the divergent but similarly constitutive roles of personality and responsibility, as well as on the consequences of a shift in perspective from accountability to power in studies on international responsibility (Section 6).

* The author wishes to thank Julia Wdowin for her assistance.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_007

96

d’Aspremont

A preliminary remark is warranted on the existing accounts of power found in the literature. Because this chapter makes the argument that power is constructed by international responsibility, the sophisticated and abundant accounts of power found in international relations literature1 are not very helpful to understand the functioning of international responsibility. For the sake of the argument made here, power is not already out there and ought not to be deciphered from an external point of view. Rather, power ought to be examined from the vantage point of the very paradigms of responsibility itself. In other words, as responsibility constitutes power in a way that serves some social needs, the latter should be examined from within the regime of legal responsibility and in the light of the choices made by the architects of the law of international responsibility. 2

Prolegomena: Responsibility as a Set of Formal Modes of Legal Reasoning for the Determination and Allocation of the Burden of Compensation

This chapter is premised on the idea that responsibility boils down to a set of formal modes of reasoning through which the battle for the determination and allocation of the burden of compensation for a prior harm is fought. Said differently, according to the understanding defended here, responsibility provides the legal forms along which the determination and allocation of the burden of compensation for a prior harm is debated. Unsurprisingly, most legal systems recognize, in one way or another, responsibility and its formal modes of legal reasoning. What is more, in legal thought, responsibility is often elevated to a constitutive element of the being of legal systems2 or of their effectiveness.3 In most legal systems, the importance of responsibility-based modes of legal reasoning is not contested. The rationale thereof probably lies in the perceptions found in most legal systems that responsibility and its modes of legal reasoning constitute an adequate platform for the performance 1 For a critical review, see A. Nollkaemper, ‘Power and Responsibility in International Law’, in A. Di Stefano (ed), Un Diritto Senza Terra? Funzioni E Limiti de Principio Di Territorialità Nel Diritto Internazionale E Dell’Unione Europea / A Lackland Law? Territory, Effectiveness and Jurisdiction in International and European Law (Giappichelli, Torino, 2015). 2 For a famous account, see H. Hart, The Concept of Law (2nd ed.) (oup, Oxford, 1994) pp. 79–99. 3 J. Crawford, A. Pellet and S. Olleson (eds.), The Law of International Responsibility (oup, Oxford, 2010) p. 3.

International Responsibility and the Constitution of Power

97

of reparatory functions. Such importance can also be traced back to the fact that these formal modes of reasoning inevitably carry history-­writing dimensions.4 Because the act of deploying responsibility-based modes of reasoning boils down to making an authoritative claim about a certain harm and what needs to be compensated, making an argument in terms of responsibility contributes to the writing of the history of such harm and of its cause(s). This explains why such formal modes of legal reasoning are designed, organized and deployed with great care in most legal systems and are the object of immense attention. Responsibility in international law, and the mainstream understanding of it, does not fundamentally depart from such an account.5 Responsibility and its formal modes of legal reasoning are similarly construed as an ex post mechanism to determine and allocate contributions to injury.6 Indeed, the law of international responsibility — that is, for the sake of this chapter, the rules governing the responsibility of States and international organizations — is also geared towards the formalization of the battle for the allocation and determination of the burden to compensate those harms recognized by international law. As far as international responsibility is concerned, such formalization is carried out on two levels: the establishment of responsibility, and the determination of the contents of responsibility. This means that, in international law, the struggle for the determination and allocation of the burden to compensate is made dependent on the deployment of legal constructions pertaining, on the one hand, to the conditions for responsibility to arise, and on the other hand, to the determination of the range of claims that can be made once responsibility has been established. However, as is well-known, responsibility in international law has not been confined to compensation stricto sensu: other — mostly ­restorative  — consequences have been attached to the .

4 H. Hart and T. Honoré, Causation in the Law (2nd ed.) (oup, Oxford, 1985) p. 65: “Very often … to say that someone is responsible for some harm is to assert (inter alia) that he did the harm or caused it”. 5 On the idea that responsibility is at the heart of international law, see P. Reuter, ‘Trois ­observations sur la codification de la responsabilité internationale des Etats pour fait illicite’, in P. Reuter, Le développement de l’ordre juridique international – Ecrits de droit ­international (Economic, Paris, 1995) p. 574. See also A. Pellet, ‘The Definition of Responsibility in International Law’, in Crawford, Pellet, and Olleson (eds), supra note 3, at p. 3. See also W.E. Hall, A Treatise on International Law (4th ed.) (Clarendon, Oxford, 1898) p. 56; Roberto Ago, Third Report of the Special Rapporteur, [1971] 2(1) Yearbook of the International Law Commission pp. 205–206. 6 A. Nollkaemper and D. Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’, (2013) 34 Michigan Journal of International Law p. 359, at p. 365.

98

d’Aspremont

establishment of responsibility.7 In  other words, the reparatory function of international responsibility has been supplemented with restorative functions. As a result of the addition of such restorative functions to the traditional reparatory goals of responsibility, r­esponsibility in international law can also be construed as the formalization of the battle over the exercise of constraints to restore and protect legality. Such inclusion of non-compensatory consequences in international responsibility surely reflects the popularity of this set of formal modes of legal ­reasoning among international lawyers. Bestowing upon responsibility central reactionary mechanisms like counter-measures or the defense of legality8 denotes a great confidence in such a set of formal modes of legal reasoning. There actually is little doubt that most international lawyers look very favorably upon responsibility. And this is why they came to make responsibility play (allegedly vital) functions beyond its original compensatory rationale. This esteem of international lawyers for international responsibility can probably be explained by ­virtue of responsibility’s perceived power-constraining and power-rationalizing role.9 Indeed, responsibility is traditionally construed as a set of noble ­constraints that bridle the exercise of power while simultaneously inviting international actors to act with diligence and care.10 As was mentioned above, this chapter is an attempt to challenge the power-constraining and power-­rationalizing role commonly ascribed by international lawyers to international responsibility. It is submitted here that, contrary to mainstream perceptions, the act of subjecting certain forms of conduct — that is, certain 7

8 9

10

The restorative understanding of legality is usually traced back to Ago. See also R. Ago, ‘Le délit international’, (1939-ii) 69 Collected Courses pp. 426–427 and 429. See also Roberto Ago, Second Report of the Special Rapporteur, [1970] 2 Yearbook of the International Law Commission pp. 178–179. A. Nollkaemper, ‘Constitutionalization and the Unity of the Law of International Responsibility’, (2009) 16 Indiana Journal of Global Legal Studies p. 535. This is usually what informs the traditional and popular idea that “power breeds responsibility”. See C. Eagleton, The Responsibility of States in International Law (New York University Press, New York, 1928) p. 206. See also C. Eagleton, ‘International organizations and the law of responsibility’, (1950) 76 Collected Courses pp. 385–386. For some critical remarks on this assertions and the various types of power which breed responsibility, see Nollkaemper, supra note 1. It should be noted that the constraining and rationalizing of power is certainly not specific to responsibility. Primary obligations can also be understood as seeking to rationalize and constrain power. A common association also holds that responsibility serves the international rule of law. See S. Chesterman, ‘An International Rule of Law’ (2008) 56 American Journal of Comparative Law p. 331; A. Watts, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law p. 15.

International Responsibility and the Constitution of Power

99

exercises of power — to the regime of international responsibility has a constitutive dimension. 3

Architectural and Political Choices in the Design of International Responsibility

The international law of international responsibility — and the formal modes of legal reasoning it puts in place11 — are the result of a protracted architectural work involving a variety of actors dialoguing with one another and struggling to make international responsibility serve their respective agendas.12 However, as is well-known, a handful of legal scholars always kept the upper hand in the process and played a predominant role in making the cognitive and definitional choices that shaped international responsibility and its formal modes of legal reasoning.13 In this context, it is not difficult to understand that the design of the legal forms by virtue of which the establishment of responsibility and the determination of its contents operate is not the result of ‘neutral’ empirical and comparative observations, as it is often presented in the literature14 or in the work of the codifying bodies.15 Instead, it is these architects’ perceptions of the social needs (or of their own interests) that informed the way in which they 11

12

13

14

15

On the contribution of the ilc to the formalization of international law through its work on international responsibility, see O. Corten and P. Klein, ‘La Commission du droit international comme agent de formalisation du droit de la responsabilité’, in Denis Alland, Vincent Chetail, Olivier de Frouville, Jorge E. Viñuales (eds), Unity and Diversity of International Law: Essays in Honour of Professor Pierre-Marie Dupuy (Brill, Netherlands, 2014) pp. 399–420. On the making of the rules on responsibility and the question of their authority, see Fernando Lusa Bordin, ‘Reflections on Customary International Law: The Authority of Codification Conventions and ilc Draft Articles in International Law’ (2014) 63 International and Comparative Law Quarterly pp. 535–567. There is a terrible ambiguity in Ago’s foundational work on responsibility, as he constantly oscillates between his recognition that the stakes of his work are about designing responsibility from scratch and his portrayal of his efforts as being descriptive and comparativist. See R. Ago, ‘Le délit international’, (1939-ii) 69 Collected Courses pp. 420–421, 425, 433, 435–440. Ibid. At p. 433, Ago writes: “Encore une fois, naturellement, c’est l’observation directe des orders juridiques et des règles qui y qualifient certains faits comme illicites qui va nous donner la notion requise”. Roberto Ago, First Report of the Special Rapporteur (21st session), [1969] 2 Yearbook of the International Law Commission pp. 138–139.

100

d’Aspremont

defined harmful power and the consequences attached to it.16 Such choices were more specifically about associating some specific unfavorable consequences with those forms of conduct which are seen as undesirable, and associating more favorable consequences — or less unfavorable consequences — to those behaviors which are seen as desirable or less undesirable.17 The final result of this long confrontational process took the form of two sets of articles famously known as the Articles on Responsibility of States for Internationally Wrongful Acts (‘asr’)18 and the Articles on the Responsibility of International Organizations (‘ario’).19 These two texts, carefully and painstakingly designed over the last six decades, are intended — according to the original intention of Anzilotti, from whom all the architects of the system allegedly borrowed — to be simple, plain and intelligible.20 Following the model that was officially confirmed in 1975,21 wrongfulness — as distinct from non-conformity (or violation) — is built as an interface between the origin of responsibility and its consequences.22 Distinguishing between a violation stricto sensu and wrongfulness, rather than creating equivalence between the two, was meant to limit or exclude the consequences of responsibility when violations are less undesirable or socially harmful.23 The gap between violation and wrongfulness was filled by the notion of circumstances that preclude wrongfulness.24 Furthermore, all subjective elements, like dolus, fault, (un)due

16 17

Hart & Honoré, supra note 4, pp. 66–67. In the same vein, see Ago, supra note 13, at pp. 420–421 where he speaks of behavior which is socially useful (“conduite socialement utile”) and behaviour which is socially harmful (“conduite socialement nuisible”). 18 [2001] 2 Yearbook of the International Law Commission, Part Two. The text reproduced as it appears in the annex to General Assembly Resolution 56/83 of 12 December 2001, and corrected by document un Doc a/56/49(Vol. i)/Corr.4. 19 [2011] 2 Yearbook of the International Law Commission, Part Two. 20 For some critical remarks, see D. Alland, Anzilotti et le Droit International Public (Pedone, Paris, 2012) pp. 123–170. 21 Report of the ilc on the work of its 27th session, [1975] 2 Yearbook of the International Law Commission, para. 56. 22 P. Weil, ‘Le droit international en quête de son identité: Cours général de droit international public’, (1992) 237 Collected Courses p. 334. 23 Ago, supra note 13, at p. 434. 24 On the development of that notion, see H. Aust, ‘Circumstances Precluding Wrongfulness’, in A. Nollkaemper and I. Plakokefalos (eds), Principles of Shared Responsibility in International Law (Cambridge University Press, Cambridge, 2014) p. 169, at pp. 174–177.

International Responsibility and the Constitution of Power

101

diligence,25 were — sometimes artificially and temporarily26 — left out with a view to creating an allegedly uniform and objective standard of determination of responsibility based on wrongfulness that, in the end, is supposed to be easy to wield.27 According to this model, the basic requirements that lead to wrongfulness (and all the consequences associated with responsibility) are nonconformity and attribution to a legal subject of the international legal order.28 In this respect, it should be highlighted that while non-conformity was construed as the centre of gravity of responsibility, attribution was understood as the ‘fishing rod’ of responsibility:29 that is, the main tool by virtue of which factual situations are cognized, constituted and brought into the scope of international responsibility for the weighing of competitive responsibility claims.30 25

For a different understanding of international responsibility which retains the notion of fault, see the views defended by Gaetano Morelli — for a reproduction of some of Morelli’s most important work, see R. Kolb, Notions de Gaetano Morelli (Pedone, Paris, 2013) pp. 255–260. 26 The argument can be made that psychological elements have not been completely obliterated from the system and still pervade many aspects of the regime. It suffices to mention all the hypotheses of attribution of responsibility — already mentioned above — which presuppose that participation is accompanied by the knowledge of the circumstances of the wrongful act. See Arts. 14–19 and 58–63 of the ario. On the oscillation between intention and knowledge of the facts in the concept of complicity, see O. Corten and P. Klein, ‘The Limits of Complicity as a Ground for Responsibility’, in K. Bannelier, T. Christakis and S. Heathcote (eds.), The icj and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge, London, 2012) pp. 315–334. 27 Ago, Second Report, supra note 7, p. 185; J. Crawford and S. Olleson, ‘The Nature and Forms of International Responsibility’, in M. Evans (ed.), International Law (oup, Oxford, 2003) p. 451. On the conceptual ‘revolution’ that such an objectivation may have constituted, see A. Pellet, ‘The ilc’s Articles on State Responsibility’, in Crawford, Pellet and Olleson (eds.), supra note 3, pp. 75–94, at pp. 76–77. 28 For some critical remarks on the two-step establishment of responsibility and the possibility that only the breach matters, see A. Pellet, ‘The Definition of Responsibility in International Law’, in Crawford, Pellet and Olleson (eds.), supra note 3, pp. 3–16, at pp. 8–9. 29 It has been argued elsewhere that attribution also constitutes a form of causation: see J. d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility’ (2012) 9 International Organizations Law Review pp. 15–29. 30 On a study of some of the main rationales behind the current rules of attribution, see D. Caron, ‘The Basis of Responsibility: Attribution and Other Trans-substantive Rules’, in Richard B. Lillich and Daniel B. Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Transnational Publishers, Irvington-onHudson, New York, 1998) p. 109, at p. 127. He writes the following about the restrictive delineating policy behind rules of attribution:

102

d’Aspremont

It is conspicuous that numerous exceptions were made to the abovementioned original binary system of establishment of responsibility. Indeed, its simplicity fell short of providing a sufficiently wide accountability net when applied to the complexity of contemporary relations. In other words, in many situations, the system did not prove adequate to apprehend all the dimensions of non-conforming behaviours — and exercises of power — that were supposed to be subjected to the law of international responsibility. With the awareness that the above-mentioned ‘Anzilottian’ concept of responsibility did not capture all the socially harmful situations which they wanted to subdue,31 the architects of the law of international responsibility came to design a conceptual hotchpotch for all those situations that did not fit comfortably with the binary concept of wrongfulness, but which were still deemed sufficiently problematic to be included in the law of international responsibility.32 This residual subterfuge took the form of the attribution of responsibility (also sometimes called, albeit unconvincingly, indirect responsibility, to differentiate it from the attribution of conduct).33 Other conceptual adjustments were also forged by Roberto Ago and his followers34 who resorted to private

The motivating force for this limitation is rather obvious – it is thought both impractical and undesirable for the State to be responsible for the private acts of its citizens or, even more broadly, all persons or entities within its jurisdiction. If the State were responsible, then it would assume the position of insurer of the victim in a myriad of cases. If the State were responsible, the rule would encourage greater control by the State of persons and entities within its jurisdiction…. 31 Ago, Second Report, supra note 7, p. 186, para. 29. 32 See generally J. Fry, ‘Attribution of Responsibility’, in Nollkaemper and Plakokefalos (eds), supra note 24, pp. 98–133. For a use of that distinction in connection with specific issues of responsibility, see J. d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 International Organizations Law Review pp. 91–119 or J. d’Aspremont, ‘Rebellion and State Responsibility’ (2009) 58 International and Comparative Law Quarterly pp. 427–442. 33 Rather surprisingly, the commentary on the asr provisions on attribution of responsibility indicates that ‘the idea of the implication of one State in the conduct of another is analogous to problems of attribution, dealt with in chapter ii”. See J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, Cambridge, 2002) p. 147. 34 See G. Nolte, ‘From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 13 European Journal of International Law pp. 1083–1098.

International Responsibility and the Constitution of Power

103

law concepts — like injury35 — to make the law of international responsibility perform public law functions36 and give it a communitarian content.37 The political ambitions38 of the abovementioned architects of international responsibility, as well as the conceptual and practical difficulties39 — some of which were deemed “breaking points”40 — of the formal modes of legal reasoning described above have been extensively discussed in the literature. It not necessary to recall them here. It is, however, noteworthy that the notion of power is only rarely mentioned in the asr. It comes briefly into sight with respect to attribution in situations in which an individual who does not constitute an organ is “empowered by the law of that State to exercise elements of the governmental authority”41 or situation in which “a person is in fact exercising elements of the governmental authority in the absence or default of the official authorities”.42 Yet, power is only explicitly acknowledged in relation to the individuals who could potentially be producing conduct of the State. Never is the role of power expressly acknowledged in relation to the State itself. Yet, as far as power is concerned, the wording of the asr should obviously not be taken at face value, as is argued in the next section. 35

36

37 38

39

40

41 42

On the declaratory function of injury, see J. Crawford, ‘Overview of Part Three of the Articles on State Responsibility’, in Crawford, Pellet and Olleson (eds.), supra note 3, pp. 931–940, at p. 931. See generally B. Stern, ‘The Elements of an Internationally Wrongful Act’, in in Crawford, Pellet and Olleson (eds.), supra note 3, pp. 193–220, at p. 194. A good illustration is the introduction of sanction-regulation in the regime of responsibility aimed at the restoration of legality, but conditioned upon injury. See Arts. 42 and 50 of the asr. On the idea that the inclusion of the faculty to take countermeasures led to a distortion of the notion of injury, see Nollkaemper, supra note 8, at p. 555. See Nolte, supra note 34. See also Nollkaemper and Jacobs, supra note 6, at pp. 401–402. See M. Koskenniemi, ‘Doctrines of State Responsibility’, in Crawford, Pellet and Olleson (eds.), supra note 3, pp. 47–50. P-M. Dupuy, ‘Dionisio Anzilotti and the Law of International Responsibility of States’, (1992) 3 European Journal of International Law pp. 139–148; Nolte, supra note 34. Cf. the political ambitions which informed the creation of international criminal mechanism: see D. Wippman, ‘The International Criminal Court’, in C. Reus-Smit, The Politics of International Law (Cambridge University Press, Cambridge, 2004) pp. 151–187. B. Stern, ‘Et si on utilisait la notion de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I sur la responsabilité des États’, (2001) 47 Annuaire Français de Droit International pp. 3–44; see also Nollkaemper, supra note 8. See nonetheless Nollkaemper, who talks about the “breaking point” beyond which such distortion for the sake of public law functions has pushed the system of responsibility: Nollkaemper, supra note 8, at p. 563. Arts. 5 and 7 of the asr. Art. 9 of the asr.

104 4

d’Aspremont

The Constitution of Power in the Articles on State Responsibility

At a general level, it can be claimed that responsibility is constitutive of power: first, because subjecting certain conduct to responsibility empowers the claimants, who can exercise power towards the wrongdoer(s) or protect their own power.43 Secondly, responsibility is constitutive of power because it leaves room for argument in every conceivable case of potential responsibility-related controversy.44 Thirdly, and more fundamentally, the act of subjecting exercises of power to responsibility is an act which is itself constitutive of the very power it seeks to subdue.45 Indeed, by defining the harm and the compensation that is warranted, the law of responsibility comes to define those harmful  ­exercises of power that ought to be followed by the reparatory — and ­restorative — ­consequences it defines. In other words, the law of responsibility defines a certain power — i.e. the power that causes the harm — and then subjects it to a certain set of consequences. Thus, responsibility does not simply amount to a legal definition of something objectively out there, but instead is constitutive of the power it seeks to subdue. Said differently, it is not only declaratory of power but is also constitutive thereof. This is not without consequences for the very object of responsibility. It is because it creates power that responsibility creates a need of accountability and, thus, the need to deploy the formal modes of legal reasoning associated with responsibility. This means that responsibility is self-justificatory. It generates the rationale of the functions it performs as much as the object which it seeks to subdue. The following general considerations can now be illustrated by the specific choices made in the asr to show the extent to which the formal modes of legal reasoning put in place by the asr are constitutive of power.46 It suffices here to give a few examples. For instance, all the powers exercised by the individuals 43

In the same vein, see P. Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal p. 1, at p. 2. See also Nollkaemper, supra note 1. 44 Allott, supra note 43, at p. 14. 45 On the general idea that law structures and constitutes politics and powers, see C. Reus Smit, ‘The Politics of International Law’, in Reus Smit (ed), supra note 38, pp. 14–44. See also C Reus Smit, ‘Politics and International Legal Obligation’ (2003) 9 European Journal of International Law p. 591. 46 Allott, supra note 43, at p. 13. In the same vein, Koskenniemi has claimed that responsibility is as much a sword as a shield: see Koskenniemi, supra note 38, p. 51. Note that Allott has deemed such a constitution of power as being very detrimental to international law as a whole. See Allott, supra note 43, at p. 2. He argues that “the consumers — the people of the world — may have been less well served”. He adds: “It is unlikely that anyone but a

International Responsibility and the Constitution of Power

105

in their capacity as organ or individual and which are, by virtue of Articles 4–11, nourishing the conduct of the States are thus recognized as relevant power at the international level in the first place. The same holds for the situations of attribution of responsibility dealt with in Articles 16–18, which give legal existence to the power to aid and assist, to direct and control or to coerce, without such powers having a prior existence to the asr.47 Another example is provided by the circumstances precluding wrongfulness designed in the Articles 20–26, which are very constitutive of a compelling form of power at the ­international level. For some scholars, circumstances precluding wrongfulness have even constituted the most dramatic constitution of power under the asr, such a recognition having been deemed socially harmful.48 Power is similarly ­constituted by the claims which may be invoked once responsibility has been established.49 Last but not least, power is also that of the claimant(s) to impose a certain history of the harm and of its origins.50 Whether or not the architects of the asr have been aware of the constitutive role of responsibility in terms of power is of little relevance here. It is more interesting to note that the fact that they never explicitly acknowledged the constitution of power is not entirely surprising. The notion, however ubiquitous it may be, is extremely fluid and can hardly be subjected to formal descriptive categories which can then be mechanically deployed in the formal modes of legal reasoning associated with responsibility. What is more, striving to formally define power would have been at loggerheads with the political ambitions of the various architects of the law of international responsibility and their attempt to create a more or less simple mode of establishment of responsibility based on non-conformity.

47 48

49

50

government official would regard the confirmation of government power as the purpose of law”. Note that Fry acknowledges that attributed responsibility “presumes control”: see Fry, supra note 32, at p. 128. V. Lowe, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 European Journal of International Law p. 405; Allott, supra note 43, at pp. 16–24; Aust, supra note 24, pp. 176–179; T. Christakis, ‘Les Circonstances Excluant l’illicéité : une illusion d’optique’, in Droit du Pouvoir — Pouvoir du Droit: Mélanges en l’honneur de Jean Salmon (Bruylant, Brussels, 2007) at p. 223. See Parts ii and iii of the asr. For critical overviews, see R. Higgins, ‘Overview of Part Two of the Articles on State Responsibility’, pp. 537–544, and J. Crawford, ‘Overview of Part Three of the Articles on State Responsibility’, pp. 931–940, each in Crawford, Pellet and Olleson (eds.), supra note 3. See the introduction to this contribution.

106

d’Aspremont

The foregoing should suffice to demonstrate the extent to which States are dramatically empowered by the formal modes of legal reasoning put in place by the asr. Whether they are empowered more than they are constrained is not a relevant question here. It is not even certain whether such a question could be answered, as the idea of empowerment and that of constraints are not especially mutually exclusive and may just be referring to different sides of a single phenomenon. It is argued here that the empowerment of the State as a result of the asr may, however, look very modest in comparison to the empowerment brought about by the ario which were adopted 10 years later. This is the focus of the next section. 5 The Constitution of Power in the Articles on the Responsibility of International Legal Organizations The previous sections sketched out the basic formal categories that inform the  modes of legal reasoning pertaining to international responsibility, the choices behind them as well as the extent to which such formal modes of legal ­reasoning are constitutive of power. It is argued in this section that the ­transposition51 of the formal modes of legal reasoning put in place by the asr 51



On the decision to model the ario on the asr, see Special Rapporteur Giorgio Gaja, First Report on the Responsibility of International Organizations (26 March 2003), un Doc. a/cn.4/532, para. 11: [I]n the long itinerary leading to the adoption of the draft articles on responsibility of States for internationally wrongful acts, some of the most controversial issues relating to the responsibility of international organizations had already been referred to. Moreover, certain issues had also given rise to discussion within the Commission. While the draft articles adopted on second reading have left all the specific questions open, the Commission’s work on State responsibility cannot fail to affect the new study. It would be unreasonable for the Commission to take a different approach on issues relating to international organizations that are parallel to those concerning States, unless there are specific reasons for doing so. This is not meant to state a presumption that the issues are to be regarded as similar and would lead to analogous solutions. The intention only is to suggest that, should the study concerning particular issues relating to international organizations produce results that do not differ from those reached by the Commission in its analysis of State responsibility, the model of the draft articles on State responsibility should be followed both in the general outline and in the wording of the new text. This decision led the ilc to be — to a large extent unfairly — criticized for what was then seen as a ‘cut-and-paste’ exercise. On this criticism, see Special Rapporteur Giorgio Gaja, Eighth Report on the Responsibility of International Organizations (14 March 2011), un Doc. a/cn.4/640, p. 5. For some critical remarks, see e.g. Christiane Ahlborn, ‘Drafting the

International Responsibility and the Constitution of Power

107

to international organizations is similarly constitutive of power: in this case, of both international organizations and their member States. Indeed, just like the asr is constitutive of the power of States, the ario make international organizations very powerful creatures while also recognizing them as frameworks in which States also exert power. The empowerment corroborated by the ario can thus be considered twofold, for they empower both organizations and States. In a similar fashion as for the asr, the power vested in organizations and member States by the ario should not be considered to be “out there” but boils down to the very creation of the law of international responsibility. To illustrate the extent to which the ario make international organizations powerful entities, it suffices here to take those provisions which construct the possibility of international organizations aiding, coercing, or directing (member) States. It does not seem controversial to claim that had the law of international responsibility not designed such categories, the possibility of international organizations exerting such power would not have belonged to  the world of possibilities of international lawyers. Said differently, those ­provisions make it cognizable that an international organization could aid, coerce or direct its (member) States.52 These provisions of the ario create the cognitive possibility that international organizations aid, direct, or coerce those who were classically regarded as the primary subjects of a state-centric system. This finding is, of course, not limited to those provisions pertaining to the attribution of responsibility to international organizations for aid, coercion or direction. Other provisions of the ario envision (and constitute) international organizations as hugely powerful creatures. For instance, the mere fact that international organizations can be held responsible independently is equally constitutive of power. As was said, the ario not only empower international organizations but also States acting in their capacity as member States of international organizations. The two-fold character of the empowerment spawned by the ario calls for an important remark. In recognizing that States can exercise power within the framework of international organizations, the ario make it possible for power to fluctuate between organizations and their member States.

52

Articles on the Responsibility of International Organizations: An Appraisal of the “CopyPaste Approach”’ (2012) 9(1) International Organizations Law Review pp. 53–66. It must be acknowledged that these provisions on aid, coercion and direction come with a strong flavor of being of a textbook case nature. This criticism is one of those given in J. d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4(1) International Organizations Law Review pp. 91–119.

108

d’Aspremont

This means that the ario, by recognizing that two types of subjects could be held responsible in relation to the activities of international organizations, create fluctuations of power between organizations and their member States. Had the law of international responsibility posited that States acting within the framework of international organizations as member States are purely ‘domestic’ (or internal) creatures stripped of their recognized international existence, there would be no power of member States and thus no flux of power between these two subjects in the first place.53 This is not the route the ario went down, for they leave power in flux between organizations and their member States: thereby allowing each of them, individually or collectively, to be held responsible for a wrong committed within the framework of an organization.54 It is submitted here that, even though both organizations and member States are empowered — thereby making power fluctuate — the empowerment of international organizations corroborated by the ario is unprecedented. Organizations are indeed given power equal to those of States, the power recognized with respect to member States within the framework of 53

54

This could have been realized by a more extensive understanding of agency theory. For an attempt to construe the law of international responsibility through the lens of agency, see Dan Sarooshi, International Organizations and their Exercise of Sovereign Powers (oup, Oxford, 2005), esp. Chapter 4; and I. Couzigou, ‘International Organizations and States Within An Agency Relationship: The Distribution of Responsibility’ (2015) 61(3) Netherlands International Law Review pp. 335–364, esp. p. 355. The law of international responsibility and the formal modes of legal reasoning that it puts in place are constitutive of the very flux that allegedly threatens the accountability agenda of the law of international responsibility. In its most alarming formal manifestation, the threat to accountability associated with flux of power acknowledged by the regime of responsibility comes to a head, in the eyes of international lawyers, with the  possibility that States endow international organizations — either temporarily or permanently — with the authority that is necessary to carry out impugned actions, i.e. actions that are likely to engage their responsibility had such actions been carried out by member States themselves. That States bestow authority on international organizations while also taking refuge behind the shield offered by their legal personality to exercise some power seen as socially harmful is the worst nightmare of those international lawyers who approach the law of international responsibility from the perspective of accountability. It could even be contended that it is this very phobia that triggered the unprecedented scholarly attention for the responsibility of international organizations witnessed in the 1990s and the public codification process that ensued. See esp. R. Higgins, ‘Report to the Institut de Droit International’, extracted in (1995) 66(1) Annuaire de l’Institut de Droit International pp. 375–420. The ario now contain a specific provision  meant to alleviate fears and anxieties that authority is transferred — and power exercised — in places where it cannot be caught: see e.g. Art. 61 of the ario.

International Responsibility and the Constitution of Power

109

international organizations being nowhere more important than those recognized with respect to international organizations.55 Like the asr with respect to States, the ario can thus be read as a set of cognitive categories which give international lawyers the possibility to live in a world in which international organizations are, besides States, big hubs of power. That power is made to fluctuate within these hubs by the ario does not contradict that conclusion, but rather evidences it. The two-fold empowerment operated by ario allows one to further penetrate the architectural dynamics behind the ario. Indeed, once the ario ­created a flux of power between international organizations and their member States, it became necessary to design tools to formalize and domesticate that flux to allow the regime of responsibility to continue to perform its reparatory and restorative functions.56 Said differently, in order to put in place formal modes of legal reasoning intended to arbitrate between competing claims of responsibility, the architects of the ario needed to stabilize, freeze and picture the flux of power between the organization and its member States. This is why the rules on the responsibility of international organizations offer formal categories that freeze the flux of power at a given point in time with a view to preserving the possibility to arbitrate competing claims of responsibility. The formal tools deployed to produce such a flattening snapshot of power are usually dynamic57 and found at the level of determination of responsibility, and are primarily embedded in attribution (of conduct or of responsibility): effective control,58 aid or assistance,59 coercion,60 control,61 effective control, or circumvention.62 It is further argued here that it is this need to freeze and capture the flux of power created by the ario that led the architects of the ario to an unprecedented creativity and the design of the abovementioned gimmicks. In other words, it is the need for 55 56 57

58 59 60 61 62

On the possibility of States committing such acts, see Arts. 58–61 of the ario. See supra Section 1. The dynamic nature of those formalizing tools is not surprising, as only dynamic tools have been deemed able to properly catch up with fluctuations of power. Nor are those dynamic notions to approach the responsibility of international organizations groundbreaking, for the law of international organizations in general is awash with dynamic constructions that take the form of dialectical constructions. See J. d’Aspremont, ‘The Law of International Organizations and the Art of Reconciliation: From Dichotomies to Dialectics’ (2014) 11(2) International Organizations Law Review pp. 428–453. Art. 7 of the ario. Arts. 14 and 58 of the ario. Arts. 16 and 60 of the ario. Arts. 15 and 59 of the ario. Arts. 17 and 61 of the ario.

110

d’Aspremont

mechanisms to freeze and capture the flux of power created by such a two-fold empowerment that explains — certainly as much as the composite nature63 of  international organizations — the huge sophistication of international responsibility that accompanied the transposition of the asr to international organizations.64 6

Concluding Remarks: Personality, Responsibility and Hubs of Power

David Bederman once said that the International Court of Justice’s Reparations Advisory Opinion constituted a constitutional moment for international law as a whole, in that it came to recognize an international legal order inhabited by international organizations.65 It has been argued in this chapter that the “constitutional moment” to which Bederman referred may lie less in the Reparations Advisory Opinion than in the adoption of the ario. Indeed, as this paper has contended, it is the law of international responsibility, more than the recognition of international legal personality, that is constitutive of the power of international organizations. Such a contention is certainly at odds with the dominant belief in the field, according to which international legal personality makes international organizations powerful creatures. Whilst a precondition for the vesting of power through responsibility channels, 63

64

65

It is the composite nature of international organizations, more than their different modes of creation or the diverging nature of their legal orders, that required the ilc to put forward convoluted constructions which further the empowerment inherent in international responsibility. On the conceptual and theoretical consequences of this duality in international institutional law, see J. d’Aspremont, supra note 57. See also C. Brölmann, ‘A Flat Earth? International Organizations in the System of International Law’, in Robert McCorquodale (series ed.) International Organizations, Series: Library of Essays in International Law (Ashgate, Aldershot, 2006) pp. 183–206. See also C. Brölmann, The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Hart Publishers, Oxford, 2007); C. Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’ (2011) 8(2) International Organizations Law Review pp. 397–482. For some remarks on the sophistication brought about by the ario, see J. d’Aspremont, ‘The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility’ (2012) 9(1) International Organizations Law Review pp. 15–29. David J. Bederman, ‘The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’ (1995–1996) 36 Virginia Journal of International Law p. 275, at pp. 277–280.

International Responsibility and the Constitution of Power

111

international legal personality is only determinative of the receptacle where power can be vested but is not constitutive of power. Power is constituted by international responsibility rather than by the recognition of an international legal personality.66 The reading of international responsibility that has been put forward here obviously brings international lawyers very far from the — falsely innocent — functional notion of organization that has prevailed since the idea of international organizations first emerged in international legal thought.67 In fact, the ario could be seen as a compelling rebuttal of the old claim that international organizations are secondary to States. From the vantage point of the law of international organizations, States and international organizations may actually be very similar creatures. In this respect, there is probably much misguided condescending State-centrism in the preamble of the 1995 Resolution on The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties of the Institut de Droit international, according to which responsibility is also meant “to promote the credibility of international organizations”.68 The credibility of international organizations does not need to be promoted, let alone through responsibility mechanisms, for they are made creatures equally powerful as States by virtue of the very law of international responsibility. The argument that has been developed here is not without epistemological consequences. Indeed, it boils down to an invitation to change the dominant perspective from which international lawyers have been approaching the formal modes of legal reasoning put in place by the law of international responsibility. Obviously, in scholarship, questions of international responsibility have mostly been discussed from the standpoint of accountability, turning a blind eye to questions of power. This paper has tried to show that power may offer a refreshing standpoint to grapple with questions of responsibility. After decades of accountability-based reflections on the law of international responsibility, it may be time for international lawyers to renew the descriptive, analytical, 66

67 68

Power must, however, be distinguished from the capacities that may be associated with the recognition of an international legal personality. On the relationship between personality and capacity, see Frédéric Dopagne, Les Contre-Mesures des Organizations Interna­ tion­ales (Anthemis, Paris, 2010) pp. 31 and 50 et seq. J. Klabbers, ‘The Emergence of Functionalism in International Institutional Law: Colonial Inspirations’ (2014) 25(3) European Journal of International Law pp. 645–675. See the resolution adopted at the 1995 Session of Lisbon on ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’, available at: .

112

d’Aspremont

­evaluative, and prescriptive tools which they deploy in discourses on international responsibility. Such a change in perspective is even more warranted by the very architectural decisions made by international lawyers over the last century. In designing the world of international law69 and especially the formal modes of legal reasoning about the determination and allocation of the burden to compensate, international lawyers have made — conscious or unconscious — choices. These choices pertain to how they want the world to look, and especially how they want international organizations to be. As this chapter has argued, international lawyers have conspicuously chosen in favour of powerful institutions. Such a choice was made in 199570 and consolidated in 2011,71 rather than in 1949.72 It should be made clear that the fact that organizations are made powerful creatures by the law of international responsibility ought not necessarily to be bemoaned. It is true that, once seen as the beacon of progress and the defender of collective international interests, international organizations have grown into the villains of the international community in contemporary discourses.73 Irrespective of these changes of fashion, making international organizations powerful creatures through the law of 69 70 71 72 73

J. d’Aspremont, ‘”Effectivity” in International Law: Self-Empowerment Against Epistemolo­ gical Claustrophobia’ (2014) 108 asil Proceedings pp. 165–167. See supra note 68. Extracted in [2011] Yearbook of the International Law Commission (vol. ii), Part Two. Reparations for Injuries Suffered in the Service of the United Nations, 11 April 1949, International Court of Justice, Advisory Opinion, [1949] icj Reports p. 178. It is now widely acknowledged in the literature that the original dominant narrative — and the accompanying belief — that international organizations necessarily serve the public good has unraveled. For an early expression of the idea that organizations were described as serving the public good, see N. Singh, Termination of Membership of International Organizations (Stevens & Sons, London, 1958) p. vii, cited in J. Klabbers, Theorizing International Organizations (forthcoming, copy on file with the author). For a critical discussion of the move away from this idea in the last two decades, see R. Collins & N. D. White (eds.), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (Routledge, Abingdon, 2011), esp. the introduction by Collins and White, which explains that H. Lauterpacht, H. Kelsen, G. Scelle, T. Franck and A. Cassese have all pinned their hope on autonomous organizations to secure the rule of law in international affairs (at p. 2). See also F. Seyersted, Common Law of International Organizations (Martinus Nijhoff, Leiden, 2008), esp. pp. 21–24; J. Klabbers ‘The Changing Image of International Organizations’, in J-M. Coicaud & V. Heiskanen (eds.), The Legitimacy of International Organizations (United Nations University Press, New York, 2001) pp. 221–255. See also the remarks of J. Alvarez, ‘Constitutional Interpretation in International Organizations’ in Coicaud & Heiskanen (eds.), supra in this note, pp. 104–154.

International Responsibility and the Constitution of Power

113

international responsibility was a choice relating to how centres of power are organized in the world of international law. Once the choice to elevate international organizations into big hubs of power has been made, international lawyers must learn to live with the consequences of their own choices, rather than continue to lament the ever-failing accountability virtues which they ascribe to the law of international responsibility.

chapter 7

Dual Attribution in the Context of Military Operations Tom Dannenbaum 1 Introduction The vision of Article 43 of the United Nations Charter notwithstanding, international security is viewed by contemporary international law as a field in which states act as unitary actors, exercising self-help, and coordinating only loosely through military alliances. This is an anachronism. Faced with threats that defy the state system, transcend borders, and, in extreme cases, trigger humanitarian imperatives to act, states have turned increasingly to institutionally and operationally thick cooperative military enterprises (‘cmes’) to further their security objectives. These ventures are diverse in form and objective. They include ad hoc coalitions,1 international-organization-led military deployments,2 peacekeeping operations,3 multinational occupation forces (authorized or unauthorized),4 and merged military operations deployed alongside international administrative missions.5 1 See e.g. S. Schifferes, ‘us Names Coalition of the Willing,’ bbc News Online (18 March 2003), available at: . 2 Consider: un forces (un Security Council Resolution 2098 (2013), un Doc. s/res/2098); unauthorized nato forces (un Security Council Resolution 1386 (2001), un Doc. s/res/1386); other nato forces (uk Ministry of Defence, ‘International Partners Sign Joint Expeditionary Force Agreement’ (5 September 2014), Press Release, available at: ); and eu forces (Aurel Sari and Ramses A. Wessel, ‘International Responsibility for eu Military Operations’ in B. van Vooren, S. Blockmans, and J. Wouters (eds.) The eu's Role in Global Governance (Oxford, Oxford University Press 2013) pp. 126–144). 3 Various regional international organizations have joined the un in performing this role: see un Security Council Resolution 1671 (2006), un Doc. s/res/1671; un Security Council Resolution 2085 (2012), un Doc. s/res/2085; Council of the European Union, ‘Council Conclusions on the Central African Republic’ (20 January 2014), Press Release, available at: . 4 The Multinational Force that occupied Iraq starting in 2003 began as a state-led cme lacking un authorization, but was subsequently authorized: Al-Jedda v. United Kingdom, 7 July 2011, European Court of Human Rights, App.No. 27021/08, paras. 17–19, 26–35. 5 un Security Council Resolution 1244 (1999), un Doc. s/res/1244. © koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_008

Dual attribution in the context of military operations

115

The rise of thick multilateralism should be welcomed. In the face of severe transnational challenges, robust international security cooperation is vital to pursuing peace, security, and human rights.6 Indeed, in the absence of centralized enforcement, cooperation is vital to the very rule of international law.7 However, in a legal regime premised on independent state responsibility, cooperation poses a doctrinal challenge when these ventures go off the rails. Put crudely: whose wrong is it when a cme violates international law? The question is difficult precisely because what distinguishes cmes is that they are governed by merged and redistributed systems of authorization, strategic leadership, operational control, command, and discipline. Troopcontributing States and one or more organizations or lead States each take on some fraction of the functions that would ordinarily be held by a single authority. For example, on France’s telling, the North Atlantic Treaty Organization (‘nato’) was responsible for the ‘direction’ of the un-authorized force in Kosovo (‘kfor’) and the un was responsible for ‘control’ of it, while troop contributors retained disciplinary authority, criminal jurisdiction, troop appointment and promotion authority, and training responsibilities.8 The allocation of these functions varies considerably across ventures (and even within the same venture over time). Sometimes even a single function is shared by two or more parties, as exemplified by the un-nato ‘dual-key’ system in Bosnia.9 cmes are hardly the only form of shared conduct challenging the model of independent responsibility.10 However, they are particularly prominent in the 6

7

8 9 10

The presence of peacekeepers, for example, can reduce the risks of renewed conflict, conflict spillover, and atrocity. See Michael W. Doyle and Nicholas Sambanis, ‘International Peacebuilding’ (2000) American Political Science Review pp. 779–801; Kyle Beardsley, ‘Peacekeeping and the Contagion of Armed Conflict’ (2011) 73 Journal of Politics pp. 1051– 1064; Erik Melander, ‘Selected to Go where Murderers Lurk?’ (2009) 26 Conflict Management and Peace Science pp. 389–406; Virginia P. Fortna, ‘Does Peacekeeping Keep Peace?’ (2004) 48 International Studies Quarterly pp. 269–292. Oona A. Hathaway and Scott Shapiro, ‘Outcasting,’ (2011) 121 Yale Law Journal pp. 252–349; International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, un Doc. a/cn.4/ser.A/2001/Add.1 (‘a rs with Com­ mentaries’), Arts. 40 & 41. Legality of the Use of Force (Federal Republic of Yugoslavia v. France), 15 December 2004, International Court of Justice, Preliminary Objections, [2004] icj Reports p. 575, para. 46. un Security Council Resolution 836 (1993), un Doc. s/res/836, para. 10. André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law’ (2013) 34 Michigan Journal of International Law pp. 359–438; Tom Dannenbaum, ‘Public Power and Preventive Responsibility’, in A. Nollkaemper and D. Jacobs (eds.), Distribution of Responsibilities in International Law (Cambridge University Press, Cambridge, 2015), pp. 193–194.

116

Dannenbaum

emergent jurisprudence. First, cmes are the most common ventures in which States and international organizations merge systems of decision-making and action.11 Second, courts have become increasingly receptive to litigation on military operations, rejecting the notion that international humanitarian law (‘ihl’) simply displaces (the more commonly justiciable) international human rights law (‘ihrl’) in times of war, and recognizing a growing sphere of state human rights duties abroad.12 Third, given the inherently threatening nature of military action to human rights and ongoing uncertainty regarding the interaction between ihl and ihrl, cmes inevitably generate numerous plausible legal claims.13 This chapter considers the jurisprudence that has emerged as a result of these factors. Part 2 examines the International Law Commission’s (‘ilc’) thin framework of cme responsibility. Part 3 evaluates the case law on cme attri­ bution and its recent trajectory. Part 4 identifies key features of where the law stands today and poses questions regarding the future of the doctrine in this domain. 2 The ilc Framework The ilc’s work on attribution was articulated in its final form in several provisions of the Articles on Responsibility of States for Internationally Wrongful Acts (‘ars’) (2001) and the Articles on the Responsibility of International 11 12

13

Ibid., p. 194. Similar issues arise in collective border enforcement and transnational policing but cmes are the most common of such ventures. Dealing with ihl through the lens of ihrl (in various ways). See e.g. Hassan v. United Kingdom, 16 September 2014, European Court of Human Rights, App No. 29750/09, paras. 99–107; Mohamed v. Secretary of State for Defence, [2015] ewca Civ 843, paras. 105–106, 164–253; Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, International Court of Justice, [1996] icj Reports p. 226, at p. 240; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, International Court of Justice Advisory Opinion, [2004] icj Reports p. 136, at p. 178; Bámaca Velásquez v. Guatemala, 25 November 2000, Inter-American Court of Human Rights (Ser. C) No. 70, p. 79. The issue of extraterritorial jurisdiction has been especially fraught at the European Court of Human Rights. Setting a notoriously high threshold, see Banković v. Belgium and others, 12 December 2001, European Court of Human Rights, App. No. 52207/99, paras. 54–82. Lowering that threshold, see, inter alia, Al-Skeini and others v. United Kingdom, 7 July 2011, European Court of Human Rights, App. No. 55721/07, paras. 132–150; Hassan, supra note 12, paras. 75–78; Jaloud v. Netherlands, 20 November 2014, European Court of Human Rights, App. No. 47708/08, paras. 143–153. This is most obviously the case for rights associated with detention and killing.

Dual attribution in the context of military operations

117

Organizations (‘ario’) (2011).14 Neither draft code looks set for translation into a binding treaty, but both have the potential to provide the focal points around which custom can develop, and at least some provisions were rooted in preexisting custom. Under both codes, all official acts and omissions of State or organization organs or agents are attributable to the State or organization, even if that conduct is ultra vires.15 Cooperation between organs or agents — as occurs in the context of detainee transfers — does not alter that foundational attributive link.16 One State or organization might be held responsible for its organ having assisted the wrongful conduct of another State in such a scenario, but it would be attributed only with the assistance, not with the primary wrong.17 This simple model breaks down when the provision of troops, authorization of the venture, and participation in its strategic or operational leadership is distributed among a number of States or organizations. Isolating which conduct is whose in that scenario requires a special rule. A cmes Led by International Organizations The provision most commonly invoked to perform that role is Article 7 of the ario, which provides that the conduct of State (or international organization) organs placed ‘at the disposal’ of an international organization is to be attributed to the latter if it exercises ‘effective control’ over the conduct.18 This provision can be interpreted in at least two ways. The first presumes a default attribution that is rebutted when the lead organization controls the conduct; the second presumes no default attribution, but examines each enterprise participant’s control over the impugned conduct. The former has obvious textual appeal. Read in isolation from its Commentary or purpose, Article 7 of the ario appears to presume a default 14

15 16

17 18

International Law Commission, Draft Articles on the Responsibility of International Organizations, un Doc. a/66/10 (‘ario with Commentaries’); ars with Commentaries, supra note 7. ario with Commentaries, supra note 14, Arts. 6, 8; ars with Commentaries, supra note 7, Arts. 4, 7. This reflects a deep presumption of independent (and not shared) responsibility. See ars with Commentaries, supra note 7, p. 64; Nollkaemper and Jacobs, supra note 10. On detainee transfer, see Soering v. United Kingdom, 7 July 1981, European Court of Human Rights, App. No. 14038/88; Alzery v. Sweden, 10 November 2006, Human Rights Committee, un Doc. ccpr/c/88/d/1416/2005. See the sources cited supra note 16; ario with Commentaries, supra note 14, Art. 14; ars with Commentaries, supra note 7, p. 16. ario with Commentaries, supra note 14, Art. 7.

118

Dannenbaum

attribution to the troop contributor (pursuant to Article 4 of the ars or Article 6 of the ario) up to the point that the recipient organization controls the impugned conduct.19 Transposing the International Court of Justice (‘icj’) interpretation of ‘effective control’ from the context of attributing non-State actor conduct to States, that would mean attribution to the troop contributor unless the recipient “directed or enforced the perpetration of [the wrongful] acts”.20 This would either preclude dual attribution, on the assumption that the recipient’s effective control would displace the ordinary attributive links recognized in Article 4 of the ars and Article 6 of the ario, or it would provide for dual attribution whenever the recipient organization exercises effective control, on the assumption that the ordinary attributive links would be unaffected by that control.21 Neither of these radically opposing implications is plausible. The ilc Commentary and the emerging case law militate instead in favour of applying the effective control analysis not just to the recipient organization but also to the troop contributor.22 Rather than starting with a default attribution, this demands a bifocal, conduct-specific analysis all the way down. When the recipient international organization exercises exclusive effective control over the conduct, the conduct is attributed exclusively to that organization. When the sending state or international organization exercises exclusive effective control, the conduct is attributed exclusively to that entity, pursuant to Article 19

20

21 22

The Dutch Procurator General and the European Court of Human Rights have hinted at this interpretation, but each equivocated by emphasizing the contributor’s control. André Nollkaemper, ‘Procurator General of the Dutch Supreme Court Concludes to Reject Appeal against Srebrenica Judgment’, shares Blog (3 May 2013), available at: . See also Al-Jedda, supra note 4, paras. 80–86; and Kristen E. Boon, ‘Are Control Tests Fit for the Future?’ (2014) 15 Melbourne Journal of International Law p. 24. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. us), 27 June 1986, International Court of Justice, [1986] icj Reports p. 14, para. 115; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro), 26 February, 2007, International Court of Justice, [2007] icj Reports p. 43, paras. 397–401; Armed Activities on the Territory of the Congo (drc v. Uganda), 19 December 2005, International Court of Justice, [2005] icj Reports p. 168, paras. 146–147. Translating something like this to cmes, see Marko Milanovic and Tatjana Papic, ‘As Bad as it Gets’ (2009) 58 International and Comparative Law Quarterly p. 282. Cf. Jordan J. Paust, ‘The u.n. Is Bound By Human Rights’ (2010) 51 Harvard International Law Journal Online p. 8. Tom Dannenbaum, ‘Killings at Srebrenica, Effective Control, and the Power to Prevent Unlawful Conduct’ (2012) 61 International and Comparative Law Quarterly pp. 720–1.

Dual attribution in the context of military operations

119

4 of the ars or Article 6 of the ario, read in conjunction with the text of, and commentary to, Article 7 of the ario.23 However, attribution to one party does not preclude attribution to another, and when two parties exercise effective control over the conduct, dual attribution is appropriate.24 The key question for dual attribution, then, is how broadly to interpret ‘effective control’. The Commentary states explicitly that ‘effective control’ in this context plays a “different role” from ‘effective control’ in the icj jurisprudence on attributing non-State actor conduct to States.25 In a cme, the question is to which of the participating States or international organizations the conduct is to be attributed, whereas, in the non-State actor context, the question is whether the conduct is to be attributed to the State at all.26 Nonetheless, ‘effective control’ has an “essential ambiguity” that can only be resolved as the standard is applied in practice.27 Before turning to courts’ efforts in that regard, it is worth considering briefly the ilc’s approach to State-led cmes. B cmes Led by States Normatively, there is no reason why attribution should differ when a cme is headed by a State, rather than an international organization. However, in the case of organs “placed at the disposal” of a State, Article 6 of the ars attributes conduct to that State when the seconded organ exercises “elements of the [recipient’s] governmental authority”.28 In theory, “governmental authority” could be exercised with no recipient control over the impugned conduct; conversely, a high level of recipient control over conduct is compatible with a lack of governmental authority.29 Despite its different trigger criterion, Article 6 of the ars offers two lines of interpretation parallel to those applicable to Article 7 of the ario. On a plain text reading, an organ’s conduct seems to be that of the sending State until it exercises the governmental authority of the recipient, at which point attribution switches to the latter. The Commentary, on the other hand, asks whether 23 24 25 26 27 28 29

ario with Commentaries, supra note 14, p. 87. On the first point, see ibid., p. 81. ario with Commentaries, supra note 14, p. 86. Ibid. James Crawford, State Responsibility: The General Part (Cambridge University Press, Cambridge, 2013) p. 205, note 216. ars with Commentaries, supra note 7, Art. 6. The indicator that the organ is indeed at the ‘disposal’ of the recipient is that the organ must generally be subject to the recipient’s direction, rather than subject to its home state’s instruction, but this is seemingly a test of institutional structure, not specific conduct. See ars with Commentaries, supra note 7, p. 44, and also note 130 on that page.

120

Dannenbaum

the organ “remain[s] under the authority of the sending State”, “under the authority” of the receiving State, or, alternatively, whether it is “a joint organ of several States”, or acts on their “joint instructions”.30 At the crux of the matter, it continues, “is the establishment of a functional link” between the organ and “the structure of authority” of the relevant State.31 The latter test shares key features with the Commentary-inspired, bifocal interpretation of the effective control test in Article 7 of the ario. Both reject a presumptive institutional line of attribution for enterprise conduct, starting instead from the premise that two or more cme participants (at least the contributor and the recipient) have a formal institutional link to each cme troop contingent, and holding that the attributive significance of that formal link is contingent on the distribution of levers of conduct-relevant control (Article 7 of the ario) or authority (Article 6 of the ars) among the formally linked participants.32 This still leaves the different ario and ars trigger criteria, but that gap might be narrowed by interpreting ‘functional link’ to mean any link relevant to the State’s capacity to control the impugned conduct. Alternatively, a similar harmonization of standards may be feasible through the application of Article 8 of the ars, which attributes conduct when performed “on the instructions of, or under the direction or control of” the relevant State.33 The language of Article 8 is deliberately flexible. According to the Commentary, “it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it”.34 This flexibility allows an interpretation of Article 8 that would mimic Article 7 of the ario in cme scenarios, while maintaining a higher control test under Article 8 of the ars for the attribution of non-State actor conduct.35 Whether or not Article 6, Article 8, or some combination is the proper frame for a state-led cme is open to debate.36 The key point here is that they are both textually divergent from the ario model, and yet both sufficiently flexible to 30 ars with Commentaries, supra note 7, p. 44. 31 Ibid. 32 Dannenbaum, supra note 10, pp. 200, 207. 33 ars with Commentaries, supra note 7, Art. 8. 34 Ibid., p. 48. See also Boon, supra note 19, p. 18. 35 Cf. Ibid., p. 26; Aurel Sari, ‘Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands’ (2014) 53 Military Law and Law of War Review pp. 287–318, Part v.2. 36 A key issue is whether cme military operations abroad ever count as exercises of ‘governmental authority’ (per Art. 6). The Commentary gives no guidance on this, except to say that ‘mutual defense’ arrangements do not count. ars with Commentaries, supra note 7, p. 44.

Dual attribution in the context of military operations

121

overcome that divergence, thereby achieving a harmonization that would have the virtue of realizing normative coherence across the draft codes. 3

An Emergent Case Law Lacking Normative Unity

ars and ario flexibility here reflects the minimal prior practice on the issue of dual attribution in shared military ventures. A consequence of this is that much doctrinal work has been pushed downstream to State practice and adjudication. This Part explores the latter, looking first at various early forms of hostility to dual attribution, then examining the ways in which courts have opened to the idea, and finally identifying enduring uncertainties. A An Early Problem One of the earliest relevant cases predates both ilc codes. At its core was a claim against the uk before the European Commission on Human Rights (‘Commission’) regarding the detention of Rudolf Hess in Berlin-Spandau prison.37 The prison had been established by the Allied Kommandatura (the governing body for post-World War ii Berlin) to house Nazi war criminals, and was administered by the uk, the us, the ussr, and France under a system of overall unanimity, with operations performed by representatives of one State at a time on a three-month rotation. Only the uk was subject to the Commission’s jurisdiction. In declining to consider the merits, the Commission explained that responsibility for the detention was “exercised on a Four Power basis” with the uk only “a partner in the joint responsibility which it shares with the three other Powers”.38 This determination can be read in one of two ways. First, the Commission’s premise may have been that attribution to the uk would have entailed attribution to the other three States as indispensable third parties on whose obligations it lacked the authority to rule.39 This highlights the potential of dual attribution to pose an obstacle to litigation, given the likelihood that no court 37 38 39

Hess v. United Kingdom, 28 May 1975, European Commission of Human Rights, App. No. 6231/73. Ibid. Cf. Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America), 15 June 1954, International Court of Justice, [1954] icj Reports p. 19, pp. 32–33; Case Concerning East Timor (Portugal v. Australia), 30 June 1995, International Court of Justice, icj Reports p. 90, para. 28. But see Certain Phosphate Lands in Nauru (Nauru v. Australia), 26 June 1992, International Court of Justice, Preliminary Objections, [1992] icj Reports p. 240, para. 55.

122

Dannenbaum

or interpretive authority would have jurisdiction over all relevant participants. As discussed in Part 4.B, recent jurisprudence has moved in the opposite direction, with dual attribution a litigation enabler. If the first interpretation of the Hess case highlights the way that dual attribution might obstruct accountability, the second is hostile to the very idea of dual attribution. On this interpretation, the Commission meant that only the Kommandatura itself, and not its State participants, could be attributed with official prison conduct. Hinting at this, the Commission observed, “joint authority cannot be divided into four separate jurisdictions”.40 The implications of such a rule are even more severe. It would allow States or international organizations to create cmes that are themselves not subject to international law or to the jurisdiction of any court, and yet that are the only entities attributed with enterprise conduct. Whichever way one interprets Hess, its implications for cme accountability are not promising. Either multiple attribution to enterprise participants blocks accountability, or attribution to cme participants ought to be rejected altogether. As discussed below, each of these has been discarded over time. The second in particular would be in significant tension with the ars and ario, which hold that joint organs are to be attributed to all relevant States and organizations, and that States may not use international organizations to circumvent their obligations.41 B Early Hostility to Dual Attribution Nonetheless, initially at least, the drafting of the ario and ars did not trigger a judicial opening to dual attribution. Moreover, the single attribution that the  courts favoured at that stage — presumptive attribution to the lead organization — proved an obstacle to accountability due to courts’ lack of jurisdiction over international organizations. The landmark judgment in this respect was the 2007 European Court of Human Rights (‘ECtHR’) ruling in Behrami, which denied claims against states involved in the un-authorized nato force in Kosovo (‘kfor’).42 Despite referencing what would become Article 7 of the ario and finding that nato held “effective command of the relevant operational matters”, the Court attributed kfor acts and omissions exclusively to the un because it had ‘ultimate authority and control’ over the force in light of the facts that the Security Council 40 41 42

Hess, supra note 37. ario with Commentaries, supra note 14, pp. 87–88, 110, Art. 61. Behrami v. France and Saramati v. France, Germany and Norway, 2 May 2007, European Court of Human Rights, App. Nos. 71412/01 & 78166/01.

Dual attribution in the context of military operations

123

authorized the force, delegated operational control to nato within broad limits, and received regular reports from the field.43 Attribution of the conduct to the un on these grounds disposed of any question of attribution to the troop contributors, implying that dual attribution would obtain on this model only if a group of States stood collectively in the position of the un vis-à-vis kfor.44 Attribution would have shifted from the authorial entity (in Behrami, the UN) to a troop-contributing State only if that State were to have intervened disruptively to nullify nato control and un ultimate authority.45 In the absence of any court with jurisdiction over the un, the accountability deficit was conspicuous.46 As explained below, Behrami diverged radically from both of the alternative ario interpretations discussed in Part 2. Nonetheless, it endured in the short term, and continues to influence attribution decisions today.47 A year after Behrami, the District Court in The Hague advanced an alternative test in H.N. v. Netherlands.48 Its crux was the transfer by the Dutch battalion (‘Dutchbat’) of the un peacekeeping force in Bosnia and Herzegovina of the claimants’ family members from the battalion’s Potočari compound to the Bosnian Serb Army during the latter’s genocide at Srebrenica. The Court attributed the transfer to the un due to its ‘operational command and control’ over the enterprise, holding that the Netherlands would have been attributed with the ­transfer only if it had ‘cut across’ the un chain of command by directing Dutchbat ‘to ignore’ or ‘go against’ un orders.49 Even ‘parallel instructions’ would not have warranted attribution to the Netherlands.50 Although reversed

43 44

Ibid., paras. 132–41. Yugoslavia argued that the North Atlantic Council waged the 1999 war against it “as a joint enterprise”, such that all member States were “attributable jointly and severally” with the command structure that they had created: see Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Oral Proceedings, Public Sitting 12 May 1999, Transcript, cr 1999/25, p. 16. 45 Behrami, supra note 42, paras. 138–139. 46 Cf. Tom Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability’ (2010) 51 Harvard International Law Journal pp. 121–129. 47 Following Behrami: Kasumaj v. Greece, 5 July 2007, European Court of Human Rights, App. No. 6974/05; Gajić v. Germany, 28 August 2007, European Court of Human Rights, App. No. 31446/02. On its impact recently, see section 3.D below. 48 hn v. Netherlands (Ministry of Defense and Ministry of Foreign Affairs), 10 September 2008, Rechtbank's-Gravenhage, ljn: bf0181/265615 (‘H.N. District Court Judgment’). 49 H.N. District Court Judgment, supra note 48, para. 4.14.1. 50 Ibid.

124

Dannenbaum

on appeal, H.N. articulates the standard claimed by the un and troop contributors in most peacekeeping missions.51 Both H.N. and Behrami depart from the ario framework (on either interpretation of the latter). The textualist interpretation of Article 7 of the ario, like both judgments, is built on a presumption that all enterprise conduct will be attributed to a specific actor. However, while the ario presumption attributes all conduct to the contributor State (unless the lead organization directs the conduct), Behrami and H.N. adopt the opposite position, attributing all conduct to the lead organization (unless a contributor overrides its command and directs the conduct). By eschewing either presumption in favour of a ­conduct-specific control analysis, the bifocal interpretation of Article 7 of the ario conflicts even more fundamentally with both judgments.52 The most plausible reconciliation between H.N. or Behrami and the ario would be to define the cme in each case as an organ of the un, covered by Article 6 of the ario, with the contributor State imputed with conduct only when it usurps control, per Article 8 of the ars.53 However, neither court suggested that it viewed things in that light. Moreover, if State troop contingents sent to act under un operational control are not State organs ‘placed at the disposal’ of an international organization, it is difficult to imagine what is covered by Article 7. H.N. and Behrami differ on what counts as leading the enterprise in a way that underpins the attributive presumption; applied to the Behrami facts, the H.N. rule would have attributed kfor’s actions to nato, and not to the un. However, what they share is the basic premise that leadership of the enterprise (however defined) is presumptively attributive of all enterprise conduct, unless another entity distorts the normal workings of that system.54 Equally importantly, neither allows for dual attribution, unless the lead entity is itself a collective. If Behrami reflects a normative principle, it seems to be that the entity authorizing the cme should structure the enterprise so that it retains the levers

51

ario with Commentaries, supra note 14, p. 88; un Secretary-General, Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations (20 September 1996), un Doc. a/51/389, paras. 7–8; Dannenbaum, supra note 46, p. 153. 52 Dannenbaum, supra note 10, pp. 197–202. 53 On the cme as the organ of the recipient international organization, see Sari and Wessel, supra note 2, p. 132. 54 Cf. Aurel Sari, ‘un Peacekeeping Operations and Article 7 ario’ (2012) 9 International Organizations Law Review p. 83; Sari and Wessel, supra note 2, p. 141.

Dual attribution in the context of military operations

125

of control necessary to ensure good conduct.55 However, this principle misunderstands the agreements that structure cmes.56 All States and organizations that participate in multinational enterprises cede some form of control to one another. Doing so is essential to effective international cooperation of this kind and is vital to the very enforcement of contemporary international law.57 The choice for participants (including the authorizing participant) is not between retaining total control and ceding control: it is between ceding control and forgoing collaboration. Given the value of such cooperation, as long as the enterprise is lawful and any instance of enterprise wrongdoing is attributable to at least one State or organization, attribution should reflect the agreement that was reached, not what might have been. C Movement to Bifocal Conduct-Specific Analysis and Dual Attribution Behrami and H.N. were the high water marks for both enterprise-level presumptions and hostility to dual attribution. The ecthr’s first steps away from both positions came in Al-Jedda v. uk, a 2011 case involving the detention of a terrorist suspect by uk forces operating as part of the un-authorised Multinational Force (‘mnf’) in Iraq.58 The uk argued unsuccessfully that Behrami mandated attributing Al-Jedda’s detention to the un because the Security Council maintained ultimate authority and supervised the force via periodic reporting.59 At first seeming to accept the uk’s doctrinal premise, the Court distinguished the case from Behrami on factual grounds.60 However, it then made two doctrinal shifts that seemed to render the factual distinctions redundant. First, it separated the question of whether mnf conduct was attributable to the un from the question of whether it was attributable to the uk, raising the possibility (contra Behrami) that both questions could be answered in the affirmative, generating dual attribution.61 Second, the Court held that the un had “neither effective control nor ultimate authority and control” over the detention, whereas the uk did exercise control over the detention, despite external committee review.62 Despite its unhelpful equivocation on the applicable rule and its failure to elaborate on 55

See, e.g., Danesh Sarooshi, The United Nations and the Development of Collective Security (Oxford University Press, Oxford, 1999) p. 164. 56 Dannenbaum, supra note 10, pp. 221–222. 57 Ibid., pp. 220–223. 58 Al-Jedda, supra note 4. 59 Ibid., para. 64. 60 Ibid., paras. 77–83. 61 Ibid., para. 80. 62 Ibid., paras. 84–85.

126

Dannenbaum

what ‘effective control’ entails, the judgment inched towards the ilc rule and away from the notion that authorizing and periodically supervising the enterprise is sufficient for exclusive attribution of conduct.63 More impressive strides in that direction have been made in the Dutch courts. This began with the reversal of H.N. at the appellate level in Nuhanović v. Netherlands and has continued as the next round of litigation has built on that step forward.64 Unlike the ECtHR in Al-Jedda, the Court of Appeal in Nuhanović structured its entire ruling around Article 7 of the ario, identifying ‘effective control’ as the only applicable test.65 Equally significantly, the Court interpreted the ‘effective control’ test in the bifocal form introduced in Part 2, determining attribution by “which of both parties has ‘effective control’ over the relevant conduct”.66 As I argued in an article cited by the Court as a source on effective control, this deviation from the Article 7 text was both normatively well-directed and consistent with the ilc’s Commentary, which defines “the decisive question” as “who has effective control over the conduct in question” and roots any attribution to the contributing state in “the control that the State possesses in the relevant respect”.67 Adopting this bifocal approach has profound implications for the meaning of “effective control”. As the ilc notes correctly, ultra vires conduct should no more be left unattributed when it is performed by cmes than it is in unilateral contexts.68 This rules out transposing the icj’s ‘effective control’ standard for attributing the conduct of non-State actors, because it will often be the case that no cme participant “directed or enforced the perpetration of [the wrongful] acts”.69 Appreciating this, the Court of Appeal instead defined the ‘effective control’ test to ask whether “the un or the State had the power to prevent 63

Cf. Munaf v. Geren, 533 us 1, 8 (2008) (reaching a similar conclusion regarding an analogous domestic law issue). 64 Nuhanović v. Netherlands, 5 July 2011, Gerechtshof's-Gravenhage, Appellate Judgment, ljn: br 5388 (‘Nuhanović Appellate Judgment’). 65 Ibid., para. 5.8. 66 Ibid (emphasis added). 67 ario with Commentaries, supra note 14, pp. 85, 87. See Nuhanović Appellate Judgment, supra note 64, para. 5.8; Dannenbaum, supra note 46, p. 141. For a more detailed analysis of the Commentary, see Dannenbaum, supra note 22, pp. 721, 724–25. 68 On the ultra vires acts of international organization organs and state organs, see supra note 15. On the ultra vires acts of cmes and the reason for attributing ultra vires conduct, see ario with Commentaries, supra note 14, pp. 85, 93. 69 The icj’s approach has repeatedly returned null results: Nicaragua, supra note 20, para. 116; Bosnian Genocide, supra note 20, paras. 413–15; Armed Activities, supra note 20, para. 160.

Dual attribution in the context of military operations

127

the conduct”— my core proposal in the aforementioned article.70 Since multiple actors can hold preventive power, this move was intrinsically friendly to dual attribution, which the court affirmed explicitly.71 The explicit endorsement of a bifocal test, the preventive interpretation of “effective control”, and dual attribution were all major shifts from H.N. and Behrami. However, the Court’s application of the ‘power to prevent’ focused on a contextual peculiarity, leaving the doctrine’s scope ambiguous. After Srebrenica fell, the Dutch government decided to withdraw Dutchbat and, with un cooperation, began (unusually) to issue orders to the troops additional to those of un command.72 The Court surmised that the Netherlands held preventive effective control, because if it were to have instructed “Dutchbat not to [evict the individuals from Potočari], such an instruction would have been executed”.73 Ordinarily, failing to prohibit wrongful conduct is one way of failing to prevent it; it is simply a passive form of authorization.74 However, this basis for attribution to the Netherlands was unfortunate on two levels. First, it obscured the preventive principle’s implications for more typical scenarios. Second, the Netherlands’ failure to prohibit was not a passive form of authorization in this case. un command, which retained simultaneous operational control, had ordered Dutchbat to “[t]ake all reasonable measures to protect refugees and civilians in [its] care” — an order that (according to the Court) Dutchbat contravened when it evicted the claimants’ relatives.75 In other words, the problem was not that the battalion did not receive a legally binding order to refrain from the wrongful conduct: it was that it disobeyed precisely such an order. This is crucial. The power to prevent disobedient conduct is not held by those that could have given alternative orders. By its nature, such conduct denies the efficacy of orders as levers of control.76 Effective control in that context is held instead by the State(s) or international organization(s) that have 70

Nuhanović Appellate Judgment, supra note 64, para 5.9 (emphasis added). See ario with Commentaries, supra note 14, p. 91, note 129; Crawford, supra note 27, p. 206; André Nollkaemper, ‘Dual Attribution’ (2011) 9 Journal of International Criminal Justice p. 1148. For my original articulation, see Dannenbaum, supra note 46, p. 157. Supporting the test more recently, see Noemi Gal-Or & Cedric Ryngaert, ‘From Theory to Practice’ (2012) 13 German Law Journal p. 529. 71 Nuhanović Appellate Judgment, supra note 64, para. 5.9. 72 Ibid., paras. 5.10–5.12, 5.18. On the original un structure, see ibid., para. 5.7. 73 Ibid. paras. 5.18, 5.20, 6.8, 6.20. 74 See Dannenbaum, supra note 46, pp. 165–170. 75 Nuhanović Appellate Judgment, supra note 64, paras. 2.16, 6.8. 76 Dannenbaum, supra note 46, p. 160.

128

Dannenbaum

the power to generate lawful decision-making and obedience to orders. Like most contributor States in peacekeeping missions, the Netherlands exercised that form of control over Dutchbat in the form of its criminal jurisdiction and its authority to select and train the troops, to structure the battalion hierarchy, and to discipline or dismiss those that breached orders. That was sufficient to attribute the wrongs to the Netherlands, quite apart from its operational role.77 Of course, different Dutch orders may have been more effective than the un order in preventing the eviction, but, if that was so, it was surely because the Netherlands held the obedience-generating levers of control and not because it, just like the un, was in a position to issue orders. Properly understood, the bifocal, preventive interpretation of ‘effective control’ inquires, of each enterprise participant, whether that participant held a sufficient concentration of the levers of control most relevant to preventing the wrongful conduct in question.78 As the discussion above indicates, those levers include far more than just the authority to direct. Which of them underpin(s) attribution depends on the conduct. Despite relying on the Netherlands’ power to have issued alternative orders, the Court did indicate some openness to this alternative framing. Abstractly, it linked the concept of effective control to responsibility for personnel matters, disciplinary authority, and criminal jurisdiction.79 Concretely, it noted the attributive “importan[ce]” of Dutchbat’s violation of the un order and the Netherlands’ disciplinary authority.80 The Dutch Supreme Court upheld the Nuhanović judgment endorsing, without qualification, the Court of Appeal’s attribution analysis and affirming explicitly the possibility of dual attribution.81 However, by failing to discuss the preventive aspect of effective control, it left the role and contours of that doctrine uncertain.82 The District Court in The Hague has since begun to fill that gap. The Mothers of Srebrenica brought suit against the Netherlands and the un in a case that 77 78 79 80 81 82

Ibid., p. 164. Dannenbaum, supra note 10. Ibid., pp. 217–219. Nuhanović Appellate Judgment, supra note 64, para 5.10. Ibid. para. 5.18. See also Boon, supra note 19, pp. 39–40. Netherlands v. Nuhanović, 6 September 2013, Hoge Raad der Nederlanden (Supreme Court of the Netherlands), ecli:nl:hr:2013:bz9225, paras. 3.11.2, 3.11.3, 3.12.2, 3.12.3. Its silence on preventative control might be considered dismissive (Boon, supra note 19, p. 40). However, the Procurator General had explicitly rejected the preventive dimension of its effective control analysis, whereas the Supreme Court (although silent on prevention) endorsed the lower court’s decision without qualification or caveat (Nollkaemper, supra note 19).

Dual attribution in the context of military operations

129

covered the same events as Nuhanović, but a much broader range of those killed at Srebrenica.83 After delays associated with the separation, dismissal, and appeal of the case against the un, the District Court only reached the merits of the claims against the Netherlands after Nuhanović had run its course.84 Accepting both the preventive interpretation of effective control and the concept of dual attribution, Mothers of Srebrenica v. Netherlands built on the earlier case.85 The Court assessed preventive control by evaluating the particularities of the impugned conduct against the “powers the State still had” and the “powers it had transferred” among operational control, troop selection, control over personnel matters, disciplinary authority, criminal jurisdiction, and the authority to withdraw the battalion.86 Alive to the role of many of these levers of control in generating obedience, the Court concluded that when a battalion under exclusive un operational control acts contrary to un orders or authorization, that “action is attributable to the State supplying the troops because the State [through those levers of control] has a say over the mechanisms underlying said ultra vires actions”.87 On this basis, the Court attributed to the Netherlands all of the Dutchbat conduct that contravened the un order to protect civilians within the battalion’s care.88 As I argued both before and after Nuhanović, this is the right application of the preventive interpretation.89 In Mothers of Srebrenica, it led the

83

Mothers of Srebrenica v. Netherlands, 17 July 2014, Rechtbank's-Gravenhage, ljn: 8748/c/09/295247, paras. 4.3, 4.11. 84 On the earlier litigation against the un and against the Netherlands for upholding un immunity, see Mothers of Srebrenica v. Netherlands and un, 13 April 2012, Hoge Raad der Nederlanden (Supreme Court of the Netherlands), ljn: bw1999, upheld in Stichting Mothers of Srebrenica v. Netherlands, 11 June 2013, European Court of Human Rights, App. No. 65542/12, paras. 135–70 85 Mothers of Srebrenica v. Netherlands, supra note 83, paras. 4.33–4.34, 4.44–4.46. 86 Ibid. paras. 4.36, 4.41, 4.46. Cf. Dannenbaum, supra note 46, pp. 158–164. 87 Mothers of Srebrenica v. Netherlands, supra note 83, paras. 4.57–4.58. 88 Ibid., para. 4.89. See also ibid., paras. 4.94–4.95, 4.98, 4.114–4.115. In line with Nuhanović, the Court repeated the theory of dual operational control during the transition period (Mothers of Srebrenica v. Netherlands, supra note 83, paras 4.80, 4.87); but, in contrast to Nuhanović, the control-over-obedience theory was given equal prominence and equal impact. 89 Dannenbaum, supra note 22, pp. 726–727; Dannenbaum, supra note 46, pp. 158–164. This may be part of “the literature” to which the Court refers without citation (Mothers of Srebrenica v. Netherlands, supra note 83, para. 4.60).

130

Dannenbaum

Court to find that the Netherlands violated its right to life obligations to 320 men evicted from Potočari.90 In each of these respects, Mothers of Srebrenica built impressively on Nuhanović. There are, however, two dimensions of its analysis relevant to dual attribution that might be questioned. First, the Court left open the possibility that Dutchbat action in contravention of un orders could also be attributed dually to the un.91 This would be too expansive. Unless the entity with the authority to issue orders also holds key levers of control over obedience generation, it has no effective control over disobedient acts.92 Second, in evaluating Dutchbat’s conduct prior to the aforementioned un order, the Court concluded implicitly that actions neither ordered nor banned by the un were attributable only to the un.93 This is too restrictive. Having failed to narrow the battalion’s discretion to lawful acts, the un was attributable with resulting wrongs, but the Netherlands’ control over training, troopselection, discipline, and contingent structure were also relevant to preventing the contingent from abusing its discretion.94 It is not only when troops act ultra vires that a troop contributor with these powers is attributable.95 Despite these issues, the judgment is the most complete and impressive judicial elaboration of the preventive interpretation to date. If Behrami and H.N. set the high water mark for enterprise-level presumptions and hostility to dual attribution, Mothers of Srebrenica marks the zenith (so far) of the bifocal, conduct-specific approach and its openness to dual attribution. D Jurisprudential Retrenchment? Indeed, two recent rulings — Jaloud v. Netherlands and Mohamed v. Secretary  of Defence — may indicate that the progress in the Dutch Courts was anomalous 90

See ibid., paras. 4.324–4.338. The remaining killings were not deemed to be the consequence of illegal Dutchbat conduct because Dutchbat lacked extraterritorial jurisdiction vis-à-vis refugees outside the compound (ibid., para. 4.160–4.161), the battalion lacked reasonable alternatives (ibid., para. 4.192–4.198, 4.283, 4.290–4.291) or there was no established causal link between its wrongs and refugee deaths (ibid., paras. 4.201, 4.276–4.278). 91 Ibid. 92 Dannenbaum, supra note 46, pp. 158–164. 93 Mothers of Srebrenica v. Netherlands, supra note 83, paras. 4.104–4.111. 94 Dannenbaum, supra note 46, pp. 165–170. Cf. Cedric Ryngaert, ‘Srebrenica Continued’ (2014) 61 Netherlands International Law Review pp. 367–368 (arguing, correctly in my view, that these actions should have been attributed to the Netherlands, but questioning whether they could have been attributed to the un). 95 Ibid., p. 367.

Dual attribution in the context of military operations

131

and that Al-Jedda was rooted more in a factual peculiarity than in a genuine doctrinal departure from Behrami. Jaloud addressed the April 2004 actions of the Dutch contingent in the force operating under the un-authorized, us- and uk-led Coalition Public Authority (‘cpa’) in Iraq.96 The case involved a lethal shooting at a military checkpoint, most likely by a Dutch lieutenant.97 The victim’s father claimed that the investigation into the killing violated the procedural requirements of Article 2 of the European Convention on Human Rights (‘echr’).98 The Netherlands denied that it could be attributed with the contingent’s conduct, noting that the uk was the public authority in the area and that a uk  commander exercised operational control over the contingent.99 The Netherlands also claimed that merely controlling a checkpoint approached by an individual does not trigger extraterritorial human rights obligations to that individual, because it does not amount to exercising full control over the individual, effective control over territory, or public powers ordinarily exercised by the host.100 These two issues — attribution and extraterritorial jurisdiction — are distinct legal questions, and the ecthr addressed them separately. However, in establishing that the Netherlands had Convention obligations at the checkpoint (a jurisdictional issue, correctly located in the jurisdiction section), the Court emphasized factors pertaining to Dutch control over the contingent (an attribution question). It noted that despite uk operational control, the Netherlands retained the right to contribute to the formation of ‘essential policy’, the authority to narrow its troops’ rules of engagement, and ‘full command’ over its troops (entailing the preventive levers of control identified in Mothers of Srebrenica).101 Whether dual attribution to the uk would have been appropriate was left unaddressed. The designated attribution section was notably less detailed. The Court asserted simply that the Dutch troops were not placed “at the disposal” of any foreign power or “under the exclusive direction or control” of another State.102 This is the language of Article 6 of the ars and an isolated line of its 96 97

Jaloud, supra note 12. The lieutenant fired 28 times, but Iraqi Civil Defense Forces or other Dutch troops may have shot too (ibid., paras. 10–16). 98 Ibid. paras. 105–108. On the investigation and domestic process, see paras. 17–48. 99 Ibid. paras. 113–115. See also para. 57. 100 Ibid,. paras. 109–110, 112–114, 116–126. 101 Ibid., paras. 57, 100, 143, 146–149. 102 Ibid., para. 141.

132

Dannenbaum

Commentary, but the Court neglected to cite those sources directly or to connect the concepts to the facts.103 In this cursory section, the Court also observed that the “complaints derive from alleged acts and omissions of Netherlands military personnel and investigative and judicial authorities”.104 Both the attribution analysis in the jurisdiction section and that in the designated attribution section warrant attention. Consider the formal attribution analysis first. The claim against the Netherlands was not that Jaloud’s was a wrongful killing, but that it was inadequately investigated.105 The Netherlands held exclusive responsibility for such investigations: its Dutch Royal Military Constabulary had “its own line of command” and was “directly answerable to the Minister of Defence”.106 In other words, the investigators were not part of the merged cme. As such, the investigative inadequacy (as opposed to the ­killing itself) was plainly attributable to the Netherlands.107 Although the Court is not explicit here, this explains its brevity and the prominence of the investigative and judicial authorities in the designated attribution section. The jurisdiction section is more interesting and provokes three questions. Given that the impugned conduct was the failure to investigate, why was it necessary to attribute the conduct of the troops involved in the shooting?108 Why was this analysis located in the jurisdiction section? And, what are we to make of it substantively? The answer to the first two questions seems to lie in the following unstated premise: a cme contingent that assumes a certain form of control over potential claimants thereby triggers the extraterritorial echr obligations only of those States attributable with the conduct that established the organ’s jurisdictional link.109 Thus, if the troops at the checkpoint exercised sufficient authority and control vis-à-vis Jaloud to trigger human rights obligations towards him and his next of kin (a jurisdictional question), it matters to 103 ars with Commentaries, supra note 7, pp. 43–44. Identifying applicable law earlier in the judgment, the Court referenced ars Arts. 2, 6 and 8. However, it never linked these provisions to the facts or to the substantive reasoning (Jaloud, supra note 12, paras. 95–98). 104 Ibid., para. 155. 105 Listing the deficiencies of the investigation, see ibid., paras. 227–228. 106 Ibid. paras. 60–61. 107 Cf. ars with Commentaries, supra note 7, Art. 2. 108 The duty to investigate does not hinge on whether state agents performed the killing: Ergi v. Turkey, 28 July 1998, European Court of Human Rights, App. No. 23818/94, para. 82. 109 Cf. Al-Skeini, supra note 12, paras. 149–150 (establishing the “jurisdictional links” necessary to trigger the investigative duties of the United Kingdom by showing that the deaths were “caused by the acts of British soldiers during the course of or contiguous to security operations” and “when British soldiers carried out a patrol in the vicinity of the applicant's home and joined in the fatal exchange of fire”).

Dual attribution in the context of military operations

133

which State those troops’ conduct was attributable (an attribution question), because that determines which State had the extraterritorial duty to investigate his death.110 Whether or not this is the right approach to extraterritoriality is tangential here. The relevant point is that it identifies the examination of the Dutch connection to the troops at the checkpoint as a distinct cme attribution analysis that ought to be evaluated as such.111 Performing that evaluation is complicated by the Court’s failure to explain why ‘full command’ determined the attribution of the conduct at the checkpoint. On one interpretation, the Court’s reference to Dutch full command stood alone as a sufficient basis for attribution to the Netherlands.112 If that is what the ecthr meant, the case marked a jurisprudential retreat. Without some criterion of the relevance of full command to the occurrence of the impugned conduct, such a rule would discard conduct-specific analysis altogether on the troop contributor side.113 This would repeat the normative error at the heart of H.N. and Behrami. The latter cases attributed conduct with reference to operational control and authorisation, regardless of whether those powers were conduct relevant: Jaloud, on this reading, would attribute based on full command, equally regardless of its conduct relevance. If Behrami and H.N. over-attribute to the lead entity, this reading of Jaloud would over-attribute to contributor States. What this reading of Jaloud gets right about Article 6 is that the levers of preventive control that make up ‘full command’ matter to whether it makes sense to speak of seconded organs acting on the recipient’s ‘authority’. What it gets wrong is to suggest that seconded organs only act on recipients’ authority when the latter holds the levers of full command. A better reflection of the complexity of authority and control here would develop Article 6 of the ars in light of the approach in Article 7 of the ario, evaluating bifocally whether cme troops acted on the authority of the sending or the receiving State (or both), as determined by which of those entities had the levers of authority and control relevant to determining the troops’ conduct. Jaloud can in fact be read in that alternative way. The Dutch troops were not instructed by uk command to shoot in the conditions that led to Jaloud’s 110 Cf. Al-Skeini, supra note 12, paras. 97–100. 111 Cf. Sari, supra note 35, Part iii. 112 Ibid., Part v.1 (noting an interpretation of Jaloud that would hold “that full command is a sufficient reason to attribute wrongful conduct to a State”). 113 Moreover, since states rarely cede full command, it would entail universal attribution of cme conduct to troop contributors. See e.g., nato, Glossary of Terms and Definitions, aap06 (2013), p. 2-F-7; Sari, supra note 54, p. 79.

134

Dannenbaum

death: quite the contrary, the shooting arguably exceeded what the uk had authorised.114 Since the levers of control entailed by full command are clearly relevant to preventing conduct that violates orders or abuses discretion, the attribution of the shooting to the Netherlands was entirely appropriate on a preventive interpretation of effective control.115 Although relying on reasoning that is not explicit in the judgment, this alternative reading makes sense of Jaloud’s reliance on Dutch full command, without implying that it ought to  guide attribution irrespective of its relevance to the impugned conduct. Rooting this in the ars would mean either adopting a bifocal, conduct-specific interpretation of Article 6 of the ars or adopting an interpretation of Article 8 of the ars inspired by Article 7 of the ario, as advocated in Part 2. A clearer step backwards was taken by the Court of Appeal in England and Wales in Mohammed v. Secretary of Defence, which involved the liberty claim of a suspected Taliban commander, detained without charge for 110 days by uk troops acting as part of the un-authorized and nato-run International Security and Assistance Force in Afghanistan (‘isaf’).116 The uk argued that Mohamed’s detention was attributable exclusively to the un.117 It lost, but the Court accepted much of its argument. Repeating Al-Jedda’s equivocation (in the opposite direction), the Court found that the Security Council had both ‘effective control’ and “ultimate authority and control” over isaf, because isaf was created and authorized by the Security Council, with nato exercising operational control pursuant to Security Council authority.118 Consequently, the Court held, “the actions of isaf are attributable to the United Nations”.119 The dubious invocation of ‘effective control’ notwithstanding, it is difficult to interpret this as anything other than a revival of Behrami. Emphasizing the fact that isaf was created by the Security Council authorization, rather than being authorized after having been deployed, the Court distinguished the facts of Al-Jedda on the same grounds that Al-Jedda had distinguished the facts of Behrami.120 The implication is that Al-Jedda rested on that factual distinction, not the putative doctrinal shift discussed above. The Court’s presumption, then, was that isaf conduct was attributable to the un. However, Behrami recognized the possibility of rebutting that 114 Jaloud, supra note 12, para. 59. 115 Dannenbaum, supra note 46, pp. 158–170. 116 Mohamed, supra note 12. 117 Ibid., para. 50. 118 Ibid., para. 65. 119 Ibid. 120 Ibid. Cf. Al-Jedda, supra note 4, paras. 80–84.

Dual attribution in the context of military operations

135

presumption when another entity usurps control.121 The Court found that precisely that occurred in Afghanistan. nato required authorization from isaf Command for any detention longer than 96 hours.122 The uk, however, used a ‘national policy caveat’ to allow for longer detention when authorized by the Ministry of Defence, relegating isaf to the role of “liaison and coordination” in such cases.123 Although isaf Command did not actively object to this, isaf leaders were not invited by the uk to authorize the policy or its application, which the uk considered “sovereign business”.124 Under these extraordinary conditions, the Court attributed Mohammed’s detention exclusively to the uk.125 After the progress of Al-Jedda and the Dutch cases, Mohammed’s reversion to Behrami’s lead organization presumption and Jaloud’s arguable shift to a troop contributor presumption suggest a deep ambivalence regarding the right approach to cme attribution. 4

Themes in cme Attribution and Future Directions

Despite that doctrinal ambiguity, two trajectories are worthy of note. First, conduct-specific attribution determinations are on the rise, even if (as in Mohamed) they occasionally involve rebutting a presumptive attributive link. Second, dual attribution has become a litigation enabler, rather than an obstacle. The progressive Mothers of Srebrenica frame remains the right way forward, but there are open questions regarding the status of illegal cooperative enterprises, liability attribution, and the complicity of enterprise members not attributed with conduct. A The Rise of Conduct Specificity Behrami and H.N. articulated presumptive schemes of attribution for cme conduct: in neither case were those presumptions rebutted. Since then, however, conduct-specific attribution has dominated. In the Dutch cases and, arguably, in Al-Jedda, the courts’ analyses were bifocally conduct-specific all the way down. The question was which entity controlled the conduct, not whether the control of one displaced the presumptive responsibility of the other. 121 122 123 124 125

Behrami, supra note 42, paras. 135–139. Mohamed, supra note 12, paras. 9, 51, 68. Ibid., para. 68. Ibid. Ibid., paras. 69, 72.

136

Dannenbaum

Although Mohammed returned to a scheme of presumptive attribution, that presumption was rebutted by the uk’s national policy caveat and conductspecific control. Jaloud is unclear on this issue, but the reconstruction offered above would define even its analysis in conduct-specific terms. As courts become more comfortable with the need to evaluate the specific links between cme participants and the impugned conduct in all cases, the core value of an enterprise presumption — its simplification of the analysis and clarification of the target of claims — diminishes considerably. B The Theoretical Possibility of Dual Attribution A second theme has been courts’ growing recognition of the theoretical possibility of dual attribution combined with their failure to actually attribute cme wrongs to more than one entity. This spotlights a peculiar role for the concept. If it were necessary to perform a complete attribution analysis in any particular case, a broader scheme of dual attribution could disempower courts by triggering jurisdictional obstacles and the indispensable third party doctrine.126 However, an expanded dual attribution doctrine in a context in which the full attribution analysis need not be performed (but exists in theory), has empowered courts by playing a role that precludes its own elaboration in practice.127 Crucial in facilitating this has been the growing openness to dual attribution via different attributive links (or different levers of control), such that — in contrast to Hess — attribution to one State or organization implies nothing about attribution to the other(s).128 This may not be an indefinite equilibrium. The icj has wavered on the application of its own indispensable third party doctrine and the ecthr has grown increasingly comfortable with issuing judgments that have all but ruled on the illegality of us conduct in the cia black site and extraordinary rendition program.129 That may portend a willingness to attribute cme conduct even in 126 On international courts, see supra note 39. On domestic courts, see Yoram Dinstein, ‘Par in Parem Non Habet Imperium’ (1966) 1 Israeli Law Review pp. 407–420. 127 When attribution to a third party not involved in the litigation has been considered, it has, thus far (perhaps not coincidentally), been rejected. Al-Jedda, supra note 4, paras. 80–84. 128 See Nuhanović Appellate Judgment, supra note 64, para. 5.9; Mothers of Srebrenica v. Netherlands, supra note 83, para. 4.45. 129 On the icj, see Nauru, supra note 39, para. 55. On the ECtHR, see El-Masri v. The Former Yugoslav Republic of Macedonia, 13 December 2012, European Court of Human Rights, App. No. 39630/09, para. 239; Al-Nashiri v. Poland, 24 July 2014, European Court of Human Rights, App. No. 28761/11, para. 516. The us is not party to the echr, but it is bound by the ban on torture at home and abroad. Committee Against Torture, Concluding observations

Dual attribution in the context of military operations

137

cases in which dual attribution to another state or organization is a necessary implication. C The Path Forward How often and in what circumstances dual attribution will be applicable going forward will depend on the model of attribution that emerges from the existing case law. In my view, the bifocal, preventive interpretation of effective control ought to be the leading candidate. It is at the core of the Dutch cases, and consistent with Al-Jedda and Jaloud (on at least one interpretation). It is also compatible with the outcome, if not the reasoning, of Mohammed, since the uk directed the detention, the detention contravened nato rules, and the uk controlled obedience generation. Moreover, it reflects the principles underpinning the ario.130 Despite the textual distinctions between the ario and the ars, normative consistency militates in favour of harmonization around this norm. If this cannot be achieved through a progressive interpretation of Articles 6 and 8 of the ars, the broader jurisprudence developing around Article 7 of the ario may provide the grounds for a universal custom applicable to both State- and organization-led cmes. The preventive ‘effective control’ framework is desirable in its instantiation of the core principle that the assertion of public power entails preventive responsibility regarding global wrongs, and in its affirmation of the fundamental value of institutionally thick international cooperation.131 Unlike frameworks that rely on enterprise presumptions, it does not impute conduct to States or organizations whose only way of avoiding that attribution would be to avoid participation in the enterprise, to refuse to compromise on the allocation of enterprise control, or to contravene command structures in the field.132 Assuming the doctrine develops stably in that direction, a series of additional questions are likely to arise. First, should the attribution framework for on the third to fifth periodic reports of United States of America, un Doc. cat/c/usa/co/3–5, para. 10; White House Office of the Press Secretary, Statement by nsc Spokesperson Bernadette Meehan on the u.s. Presentation to the Committee Against Torture (12 November, 2014), available at: . 130 The ilc termed this a “wide meaning” of ‘effective control,’ without specifying whether it disagreed. ario with Commentaries, supra note 14, p. 93, note 129. There are good reasons to consider it the optimal interpretation of Art. 7. Dannenbaum, supra note 22, p. 721. 131 Dannenbaum, supra note 10. 132 Ibid., pp. 221–223.

138

Dannenbaum

cme wrongs depend on the lawfulness of the cooperative venture? On the one hand, neither the ario nor the ars suggests the possibility of divergent tests for lawful and illegal ventures, and no court has considered the idea. On the other hand, if it is correct that the preventive control structure is underpinned normatively by the importance of lawful cooperation, it seems reasonable to ask whether that approach should extend to illegal ventures, or whether the latter should trigger a broader attribution doctrine, analogous to joint criminal enterprise. Second, as dual attribution becomes more common, a clear and explicit framework for apportioning liability will become essential.133 Finally, vicarious responsibility warrants greater attention. What forms of responsibility vis-à-vis wrongful enterprise conduct attach to cme participants not ­attributed with the wrong? 5 Conclusion The rapidly expanding jurisprudence on cooperative military ventures has yet to coalesce around a single normative framework. The role of the ario and ars in that realm has been decidedly mixed, perhaps predictably given the inconsistency between the two codes. The most hopeful developments have come in the Netherlands, with the elaboration of a bifocal, preventive interpretation of Article 7 of the ario. However, whether that framework will resonate elsewhere is uncertain. In all of this, the concept of dual attribution has played an odd role. It has been affirmed repeatedly in theory, but the primary value of its theoretical possibility has been in empowering courts to hear cases they might otherwise have avoided, while failing actually to attribute conduct to two or more entities. If courts were to start to apply dual attribution, new questions would arise. What would such a finding mean for the allocation of reparative responsibilities? How would sharing public responsibility affect the domestic political impact of such a ruling? Should both States and international organizations submit to a single in-theatre process, such as an expanded version of the neverdelivered un standing claims commission?134

133 On the right to reparation, see Ian Brownlie, The Rule of Law in International Affairs (Martinus Nijhoff, The Hague, 1998) pp. 79–80. 134 Draft Model Status of Forces Agreement for Peace-keeping Operations, un Doc. a/45/594, Annex, Art. 51.

chapter 8

Sharing Responsibility for un Targeted Sanctions Antonios Tzanakopoulos 1 Introduction un targeted sanctions, especially those related to terrorism, have had their  fair share of the limelight recently, particularly in view of important decisions by the European Court of Justice, the European Court of Human Rights, the uk Supreme Court, and other courts in cases such as Kadi,1 Nada,2 and Ahmed.3 Security Council sanctions targeting individuals and legal entities associated with terrorism result in far-reaching encroachments on the rights and freedoms of those targeted, with rather limited possibilities for the targets to seek redress. As such, questions have arisen as to the potential violations of internationally protected human rights entailed by such Security Council sanctions, as well as to the actors that are to be considered internationally responsible for such potential violations. This chapter will look at the question of international responsibility for un sanctions and the relevant jurisprudence through the lens of shared * This is a reworked and expanded version of a talk given at the University of Amsterdam in 2013 in the context of the Research Project on Shared Responsibility in International Law (shares), posted on the shares blog, and cross-posted on ejil:Talk! that same year. Many thanks are due to Professor André Nollkaemper and Dr Ilias Plakokefalos, as well as to the participants in the conference of the Catholic University of Leuven in November 2014 (where an extended version of the paper was presented) for providing useful comments and suggestions. Particular thanks are due to Eleni Methymaki and Anna Ventouratou for invaluable research assistance. The usual disclaimer applies. 1 For the Kadi saga before the Courts of the European Union, see Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, 21 September 2005, Court of First Instance, t-315/01, [2005] ecr ii-3659 (‘Kadi i cfi’); Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and the Commission of the European Communities, 3 September 2008, European Court of Justice, Joined Cases C-402/05 and C-415/05, [2008] ecr i-6351 (‘Kadi i ecj’); Yassin Abdullah Kadi v. European Commission, 30 September 2010, General Court, T-85/09, [2010] ecr ii-5177 (‘Kadi ii gceu’); European Commission and Others v. Yassin Abdullah Kadi, 18 July 2013, European Court of Justice, Joined Cases of C-584/10 P, C-593/10 P and C-595/10 P, [2013] ecr-0000 (‘Kadi ii cjeu’). 2 Nada v. Switzerland, 12 September 2012, European Court of Human Rights, App. No. 10593/08. 3 Her Majesty’s Treasury v. Mohammed Jabar Ahmed and Others, 27 January 2010, uk Supreme Court, [2010] uksc 2. © koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_009

140

Tzanakopoulos

responsibility.4 Section 2 describes the relevant sanctions regime, namely the 1267/1989 terrorist sanctions regime targeting those associated with Al-Qaida (and earlier also Osama bin Laden and the Taliban) and briefly highlights the human rights challenges that it poses. Section  3 discusses the nature of the conduct of the un, of its member States, and of other international organizations, in designing, imposing, and implementing the sanctions. This complex conduct, which requires the various actors to cooperate in order to achieve the sanctioning outcome, leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected rights to a fair trial and to a remedy (Section 4). Section 5 concludes. Responsibility is shared because States are ‘held responsible’ in their own domestic courts or in regional international courts, which either strike down domestic or regional measures implementing the sanctions, or find the State in breach of international human rights obligations, or indeed both. This then forces the States to turn to the un and seek to implement the organization’s international responsibility. They do so by disobeying the Security Council’s command, an act that is in breach of their international obligations under Article 25 of the un Charter, but which may be justified as a countermeasure against the un. Disobedience of a Security Council binding decision is a breach of an international obligation owed to the un, but one which is taken in response to the un’s violation of its own international obligations, in particular to respect certain human rights under customary international law, owed erga omnes. At the same time, and along with disobedience, the States are putting pressure on the Security Council to reform the sanctions regime, so as to bring the un in compliance with its human rights obligations. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself, in practice, also shared. 2

Targeted Sanctions under the 1267/1989 Terrorist Sanctions Regime

The United Nations Security Council has imposed obligations on un member States to implement asset freezes, travel bans, and arms embargoes on designated (‘listed’) individuals and legal entities ‘associated’ with the Taliban, 4 See generally André Nollkaemper and Ilias Plakokefalos (eds), Principles of Shared Responsibility in International Law (Cambridge University Press, Cambridge 2014); André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Michigan Journal of International Law p. 359. For the shares Project, run by the University of Amsterdam, see for further information: < www.sharesproject.nl>.

Sharing Responsibility For Un Targeted Sanctions

141

Al-Qaida, and Osama bin Laden, by virtue of Resolution 1267 (1999).5 Various subsequent Security Council resolutions maintained the regime in force, while updating it and occasionally refining it.6 This sanctions regime, conveniently abbreviated until relatively recently as the ‘1267 sanctions regime’, continues in force, even though it has now been split in two by Resolutions 1988 and 1989 (2011).7 The former resolution (and associated regime) refers to the Taliban, while the latter refers to Al-Qaida. The differences between the two regimes are centred primarily on the delisting procedure, which is significantly more advanced in the 1989 regime regarding Al-Qaida.8 In the remainder of this chapter I will focus on the ‘1267/1989 sanctions regime’. The targeted sanctions imposed by the 1267/1989 sanctions regime, both as they operated in the past and as they operate today — that is, despite the enhanced Ombudsperson procedure — may be seen as being in violation of the right of access to a court and the right to an effective remedy of the ­targeted individuals and legal entities9 as this exists in customary international law. Before the establishment of the Office of the Ombudsperson,10 individuals or entities were not allowed to directly petition the Sanctions Committee for delisting. The (informal) delisting procedures put emphasis on the States, which proposed the listing and delisting and attempted to resolve the matter by negotiation. Resolution 1267 did not describe any specific delisting procedure for the designated entities and individuals, but merely included among the Committee’s tasks the consideration of requests for exemptions from the prescribed measures.11 Only in 2006, seven years after the introduction of the measures, did Resolution 1730 establish a ‘Focal Point’ for delisting, which allowed individuals and entities designated as targets of the measures to request their delisting, although the decision as to whether or not to delist 5

6 7 8

9 10 11

un Security Council Resolution 1267/1999 (15 October 1999). In the resolution the Security Council decides that member States shall implement these measures and establishes a Sanctions Committee to, among others, oversee the implementation (paras. 4 and 6). The most pertinent among them being un Security Council Resolution 1333/2000; un Security Council Resolution 1730/2006; and un Security Council Resolution 1904/2009. un Security Council Resolution 1988/2011 and un Security Council Resolution 1989/2011. un Security Council Resolution 1989 maintained the function of the Office of the Ombudsperson exclusively for the Al-Qaida sanctions regime and introduced the reverse consensus requirement for the delisting of designated individuals or entities (see further below). Hereinafter, when I refer to individuals this should be understood as encompassing legal entities as well. That is, before un Security Council Resolution 1904/2009. un Security Council Resolution 1267/1999, para. 6(f).

142

Tzanakopoulos

them remained within the full discretion of the Sanctions Committee without any need for justification. The Office of the Ombudsperson, established by Resolution 1904 at the end of 2009, was the very first procedure with a semblance of objectivity that was introduced to allow individuals and other targeted entities to petition the Security Council for delisting. It took more than ten years for this to be achieved, and the procedure remains limited to those subject to sanctions under the 1267/1989 regime, and does not extend to any other regime targeting individuals and legal entities.12 Τhe 1267/1989 sanctions regime has targeted individuals for a significant period of time (some of them for over a decade13) and it imposes significant restrictions on them, which may even be characterized as criminal in nature, in particular in view of their duration.14 The characterisation of the sanctions as ‘criminal’ would in effect trigger the guarantees that a person that has been charged with a crime shall enjoy, including the right to be presumed innocent and the associated rights of defence. But even if this is not the case, the targeted individuals and legal entities should still enjoy the right of access to a court and the right to a remedy, both fundamental aspects of the right to a fair trial irrespective of whether the issue at hand is the determination of a criminal charge. However, under the 1267/1989 sanctions regime, the targets of the sanctions had almost no recourse at all against the restrictions imposed until Resolution 1904 (2009) introduced the ‘Office of the Ombudsperson’.15 This independent and impartial organ has been established to receive delisting requests from individuals, look into them, and make ‘recommendations’ to the competent Sanctions Committee of the Security Council regarding delisting.16 Originally 12

13 14 15

16

See for example Al-Dulimi and Montana Management Inc v. Switzerland, 26 November 2013, European Court of Human Rights, Second Section, App No 5809/08, paras. 111–122, where it was found that the ‘focal point’ system of un Security Council Resolution 1370/2006 applicable to the Iraqi sanctions regime (as different from the Ombudsperson system applicable to the Al-Qaida regime) did not constitute protection equivalent to that afforded by the echr. See e.g. Kadi ii gceu, supra note 1, para. 150. Ibid. For some reflections on the institution of the Office of the Ombudsperson see Laurence Boisson de Chazournes and Pieter Jan Kuijper, ‘Mr Kadi and Mrs Prost: Is the un Ombudsperson Going to Find Herself Between a Rock and a Hard Place?’, in Eva Rieter and Henri de Waele (eds), Evolving Principles in International Law: Studies in Honour of Karel C. Wellens (Martinus Nijhoff, Leiden 2012) p. 71. un Security Council Resolution 1904/2009, paras. 20 and 21, establishing the ‘Office of the Ombudsperson’ as a ‘focal point’ to process submissions for delisting; and Annex ii

Sharing Responsibility For Un Targeted Sanctions

143

such recommendations had to be accepted by consensus in the relevant Sanctions Committee, which meant that they were not in any way binding on it: a single member of the Committee could block the acceptance of the recommendation.17 Despite enhancement of the delisting procedure in Resolution 1989 for the Al-Qaida regime, which in effect imposed a reverse consensus requirement for the ‘recommendation’ of the Ombudsperson not to be accepted by the Sanctions Committee,18 recourse remains limited, since in the final analysis delisting remains within the discretion of the Security Council. In cases where no consensus is reached, the Sanctions Committee may remove the matter to be discussed in the Council, where the ‘normal’ decision-making procedure, including the permanent member veto, applies.19 As indicated above, the imposition of such restrictions on individuals and legal entities with no or limited possibilities for the targets to seek redress may be in violation of the right of access to a court and the right to a remedy. These two aspects of the right to a fair trial, apart from their primary, though nonbinding, incarnation in the udhr,20 as well as their entrenchment in various instruments for the protection of human rights, notably the 1966 International Covenant on Civil and Political Rights,21 the 1950 European Convention on Human Rights and Fundamental Freedoms,22 and the 1969 American Convention on

thereto describing its tasks and all relevant procedures, upon receipt of a delisting request. Its mandate has since been extended several times, most recently in un Security Council Resolution 2161/2014. 17 The Sanctions Committee membership mirrors the membership of the Security Council. 18 See un Security Council Resolution 1989/2011, para. 23, whereby, upon a delisting recommendation by the Office of the Ombudsperson, all States shall terminate the prescribed measures within 60 days, unless the Sanctions Committee decides by consensus that the measures shall remain in place. 19 Ibid. 20 See the Universal Declaration of Human Rights, General Assembly Resolution 217 A (iii), un Doc. a/810 (1948) (‘udhr’), Art. 10. 21 999 unts p. 171 (‘iccpr’). See Art. 14: “Everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law”. 22 ets No 5 (‘echr’). See Art. 6(1): “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”; and Art. 13: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

144

Tzanakopoulos

Human Rights,23 have also passed into customary international law.24 This is so not just because the relevant rights are enshrined in universal and regional conventions that are widely ratified, but also because they find parallels in fundamental rights protected by most municipal legal orders around the world. Domestic courts have occasionally explicitly drawn such parallels,25 while there is also a ‘feedback loop’ between internationally and nationally protected fundamental rights, with the result that the two are ‘consubstantial’ norms: that is, norms with the same substance, despite stemming from (arguably) separate legal orders.26 It is thus conceivable that the 1267/1989 sanctions regime may result in breaches of internationally protected human rights obligations, which are binding both on States and on the United Nations, in particular as customary international law. The next section deals with the questions of breach of an 23

24

25

26

‘Pact of San Jose, Costa Rica’, 1144 unts p. 143 (‘achr’). See Art. 8(1): ‘Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature”; and Art. 25(1): “Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the State concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties”. See generally Francesco Francioni, ‘The Rights of Access to Justice under Customary International Law’, in Francesco Francioni (ed), Access to Justice as a Human Right (oup, Oxford 2007) p. 1; Peter Hilpold, ‘un Sanctions Before the ecj: The Kadi Case’, in August Reinisch (ed), Challenging Acts of International Organizations Before National Courts (oup, Oxford 2010) p. 37. See the decision by the Federal Court of Canada in Abousfian Abdelrazik v. Minister of Foreign Affairs and Attorney General of Canada, 4 June 2009, [2009] fc 580, where in paras. 51 and 53 the 1267 regime is found to be “untenable under the principles of international human rights” and to flout the presumption of innocence, “a fundamental principle of Canadian and international justice”, respectively. For comment, see Antonios Tzana­ kopoulos, ‘United Nations Sanctions in Domestic Courts: From Interpretation to Defiance in Abdelrazik v. Canada’ (2010) 8 Journal of International Criminal Justice p. 249, at pp. 262–264. See Antonios Tzanakopoulos, ‘Judicial Dialogue in Multi-Level Governance: The Impact of the Solange Argument’, in Ole Kristian Fauchald & André Nollkaemper (eds), The Practice of International and National Courts and the (De-)Fragmentation of International Law (Hart, Oxford, 2012) p. 185, at pp. 210–215; and idem, ‘Domestic Courts in International Law: The International Juridicial Function of National Courts’ (2011) Loyola of Los Angeles International and Comparative Law Review p. 133, at pp. 142–143.

Sharing Responsibility For Un Targeted Sanctions

145

international obligation and of attribution of the conduct breaching that obligation to the relevant actors, as these are the crucial steps for establishing their responsibility under international law.27 3

Complex Conduct in the Implementation of Targeted Sanctions

The implementation of Security Council sanctions constitutes complex conduct. Both actions and omissions are undertaken by the Security Council and by the implementing member States (and potentially by other international organizations, such as the European Union, through which the sanctions decided by the Council are imposed on the member States by means of ­secondary law of the intermediate organization28). For its part, the Council sets up a sanctions regime and imposes an obligation on member States to implement it. If the Security Council also takes it upon itself to identify the specific entities to be targeted, this creates a strict obligation for member States: they have absolutely no discretion in implementing the measures against the designated targets.29 For their part, then, member States comply 27

28

29

See Art. 2 of the Articles on the Responsibility of States for Internationally Wrongful Acts (2001) un Doc. a/56/10 (‘ars’), p. 26; and Art. 4 of the Articles on the Responsibility of International Organizations (2011), un Doc. a/66/10 (ario). This then creates two international obligations on the State that happens to be a member of both international organizations: an obligation under Art. 25 of the un Charter, as well as an obligation under the constitutive instrument of the intermediate organization. This may cause confusion or allow for dubious interpretations. For example, the European Court of Human Rights in Bosphorus considered the obligation on Ireland to impound a Yugoslav-registered aircraft as an eu obligation (in order to find that the eu offers equivalent protection of human rights to that under the echr), but ignored that the ultimate source of the obligation was the relevant Security Council sanctions regime (the un not offering any such equivalent protection). See Bosphorus Hava Yoları Turizm ve Ticaret Anonim Şirketi v. Ireland, 30 June 2005, European Court of Human Rights Grand Chamber, App. No. 45036/98; and cf. Al-Dulimi (supra note 12) where the ecthr did not have this option, given that Switzerland is not an eu member, and the Court had to find that Switzerland had violated the echr in implementing measures imposed by an international organization that did not offer protection equivalent to that of the echr (the un). By contrast, if the Security Council leaves it to the member States to designate the entities to be targeted, the member States have some discretion in selecting the targets: see e.g. un Security Council Resolution 1373/ 2001. This discretion is to be exercised in compliance with the domestic law of the relevant State, including the protection of fundamental rights. See further on this note 43 below.

146

Tzanakopoulos

with their international obligations under the Charter and the relevant Security Council Resolution by implementing the regime against the identified entities found in any way within the reach of their jurisdiction, and in accordance with their relevant domestic law.30 The outcome of this complex conduct is the denial of any effective avenue for challenge of the restrictive measures on the part of targeted entities, and thus the violation of certain aspects of the right to a fair trial, a right under customary international law. This is because (a) the targeted legal entities cannot normally challenge the Security Council decision to sanction them in domestic courts, and (b) because further there is no international recourse against the imposition of sanctions, at least not one that undoubtedly complies with the guarantees of judicial protection. (a) Challenges in Domestic Courts Any direct challenge against a Security Council resolution would have the court declare either its lack of jurisdiction over the un or uphold the immunity of the un.31 Any challenge against the domestic implementing measure (and thus an indirect challenge of the Security Council decision) can be easily rejected if the domestic court accepts that the domestic measure is conditioned by the Security Council measure, and thus that any review of the domestic measure would constitute indirect review of the Security Council decision.32 (b) International Recourse Prior to the establishment of the Office of the Ombudsperson the targeted entities also had no international recourse against their listing, and arguably they still do not, if it is not accepted that the Office of the Ombudsperson, as reformed, actually provides guarantees of effective judicial protection. This is the position of the cjeu in its final decision in Kadi ii,33 but even Kimberly 30 31 32

33

See generally Vera Gowlland-Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (Martinus Nijhoff, The Hague 2004). See generally 1946 Convention on the Privileges and Immunities of the United Nations, 1 unts p. 15, Art. ii. This is what happened in Kadi i cfi, supra note 1, as well as in Youssef Nada v. State Secretariat for Economic Affairs and Federal Department of Economic Affairs, 14 November 2007, Swiss Federal Tribunal, Administrative Appeal Judgment, Case No 1A 45/2007, 133 bge ii 450; ildc 461 (ch 2007). See further Antonios Tzanakopoulos, ‘Domestic Court Reactions to un Security Council Sanctions’, in Reinisch, supra note 24, p. 54; and Section 4 below. Kadi ii cjeu, supra note 1, para. 133.

Sharing Responsibility For Un Targeted Sanctions

147

Prost, the first Ombudsperson appointed by the un Secretary-General, expressed relevant concerns in her letter to the Secretary-General when leaving office, upon expiry of her five-year appointment.34 The customary obligation to respect the right to a fair trial, which includes the right of access to a court and the right to an effective remedy, is incumbent on both the Security Council and the member States, independently of any relevant (and overlapping) treaty obligations (of member States only, in practice).35 This obligation is breached through conduct taken, prima facie, both by the Council and the member States. Through their conduct, these actors ‘contribute to a single harmful outcome’,36 for which they should both normally bear responsibility. If the breach of an international obligation is thus established, the question that remains is who this complex conduct is attributable to. If it is solely attributable to the un, or solely attributable to the member States, then no question of ‘sharing’ responsibility will arise. If, however, the conduct is concurrently attributable to both the un and the member States, or if these two actors can in some other way become responsible for the resulting violation of the right to a fair trial, then the question of sharing responsibility remains. In order to answer the question we must first untangle the complex conduct, and seek to attribute it to the various implicated entities. It is argued below that this complex conduct can (a) be viewed independently, resulting in the parallel perpetration of (similar) internationally wrongful acts on the part of the un and the member States; (b) be attributed concurrently to both the un and the member States, engaging their international responsibility; or (c) be attributed solely to the member States but still lead to the engagement of un responsibility through allocation of responsibility for the wrongful act of another entity (derivative responsibility). These alternatives are considered in the following sections.

34 35

36

See letter by Kimberly Prost to Ban Ki-Moon, 13 July 2015, available at: . On the sources of international obligations incumbent upon the United Nations when acting through the Security Council within the framework of Chapter vii of the Charter, and specifically Art. 41 unc, see generally Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures Against Wrongful Sanctions (oup, Oxford 2011), esp. Chapter 3. See André Nollkaemper, ‘Introduction’, in Nollkaemper & Plakokefalos, supra note 4, p. 1, at pp. 6–7.

148

Tzanakopoulos

Independent but Parallel Perpetration of Internationally Wrongful Acts The conduct of the un (through the Council as its organ) in setting up the regime and imposing obligations on member States to implement it is normative in nature.37 Normative conduct is conduct that is exhausted in issuing a normative act, for example in passing a resolution or statute. Such normative conduct may itself constitute a breach of the obligation to respect the right to a fair trial. The keeping in force of normative acts in breach of international obligations may constitute an internationally wrongful act even if the normative act has not (yet) been implemented.38 But if not implemented, there is little chance of any actual impact of the act in the real world, and thus responsibility for the act, while engaged, may remain theoretical. The normative act in our case, however, namely the order to impose sanctions on designated individuals, is indeed implemented by the member States through their organs, in compliance with their international obligations under Article 25 of the un Charter.39 The member States take both normative and physical conduct in implementing the regime designed by the Security Council. They will both legislate accordingly and enforce the relevant legislation, freezing the targeted entities’ assets, banning them from travel, and so forth.40 At this point we can already detect some ‘sharing’: the un and the member States must co-operate, they must act together in order to create effects in the real world, that is, in order to actually freeze assets and ban travels, leaving those targeted with no real remedy. In doing so, they both ‘contribute’ to achieving a single outcome, and indeed a ‘harmful’ (i.e. wrongful) outcome at that.

A

37 38

39

40

On the concept of ‘normative conduct’ and ‘normative control’, see generally Tzana­ kopoulos, supra note 35, Chapter 2. See ars commentary to Art. 12, para. 12, where it is stated that “[c]ertain obligations may  be breached by the mere passage of incompatible legislation”; and see also the pronouncement in Modinos v. Cyprus, 22 April 1993, European Court of Human Rights Grand Chamber, App No 15070/89, paras. 20–24, where the keeping in force of a statute that prohibited consensual homosexual relationships and that had not been applied for many years still violated the international obligation of Cyprus under Art. 8 of the echr. Art. 25 un Charter provides that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. See e.g. Nada, supra note 2, paras. 16–63 on the relevant acts that Swiss authorities performed to implement the Security Council’s sanctions regime.

Sharing Responsibility For Un Targeted Sanctions

149

The conduct of the Security Council in setting up the binding regime is attributable to the un, because the Security Council is a un organ.41 The conduct of member States’ organs in implementing the regime is attributable in the first instance to their States,42 even though this conduct is strictly conditioned by the obligation imposed upon the States under Article 25 of the un Charter to comply with binding Security Council decisions.43 If we can establish that the normative conduct of the Council is enough to violate the un’s obligation under customary international law to respect the right to a fair trial, then there is no real problem. The un becomes responsible for the resulting internationally wrongfully act, while the member States also

41

See Art. 6 of the ario: “The conduct of an organ of an international organization in the performance of functions of that organ shall be considered an act of that organization under international law”. The Security Council is a principal organ of the un in accordance with Art. 7 of the un Charter. 42 See Art. 4 of the ars: “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State”. This is evident in cases like Bosphorus (supra note 28); as well as Nada (supra note 2), paras. 117–123; and Al-Dulimi (supra note 12), paras. 87–93 before the European Court of Human Rights. In all these cases, the Court found that the conduct of State organs in the implementation of un sanctions was attributable to the relevant States and thus within the jurisdiction ratione personae of the European Court. 43 This strict conditioning can be seen in the distinction drawn by the (then) cfi between the sanctions imposed by un Security Council Resolution 1267/1999 and un Security Council Resolution 1373/2001 in Kadi i cfi (supra note 1), paras. 189, 212–214; and in Organization des Modjahedines du peuple d’ Iran v. Council of the European Union, 12 December 2006, Court of First Instance (Second Chamber), T-228/02, [2006] ecr ii-4665, paras. 100–102. In the latter case, the Court stated: In the present case, by contrast, although Security Council Resolution 1373 (2001) provides inter alia in Paragraph 1(c) that all States must freeze without delay funds and other financial assets … it does not specify individually the persons, groups and entities who are to be the subjects of those measures. Nor did the Security Council establish specific legal rules concerning the procedure for freezing funds, or the safeguards or judicial remedies ensuring that the persons or entities affected by such a procedure would have a genuine opportunity to challenge the measures adopted by the States in respect of them. Thus, in the context of Resolution 1373 (2001), it is for the Member States of the United Nations (un) — and, in this case, the Community, through which its Member States have decided to act — to identify specifically the persons, groups and entities whose funds are to be frozen pursuant to that resolution, in accordance with the rules in their own legal order.

150

Tzanakopoulos

become responsible for their own internationally wrongful acts by virtue of their own (normative and actual) conduct in implementing it. B Concurrent Attribution through Effective Normative Control However, it may be argued that the normative conduct of the Council is not wrongful in and of itself. It is rather the implementation of the Council’s decision by the member States that first breaches the international obligation to respect the right to a fair trial. Such member State conduct is strictly imposed by the Security Council, but according to the Articles on State Responsibility it is attributable to the member States, as conduct of their organs.44 The question is then, how may the un become responsible for conduct that is, in the first instance, only attributable to the member States (the implementation of the regime)? There is no reason why the implementing conduct of member States should not be concurrently attributable to the United Nations. This conduct is indeed taken by member States’ organs, but it is effectively controlled by means of a binding decision of the un which imposes on these organs a strict obligation to achieve a given result (the freezing of the assets or the banning of travel of  a  named individual, such as Kadi or Ahmed or Nada, for example). The member State then is acting (through its organs) as an ‘agent’ of the un (‘a person through whom the organization acts’).45 Article 6(1) of the Articles on the Responsibility of International Organizations (‘ario’) indeed provides that ‘[t]he conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization’. However, the next provision in the ario blocks this simple concurrent attribution (even though the Articles do in principle admit the potential for concurrent attribution46). When the ‘person through whom the organization acts’ — that is, the ‘agent’ of the organization — happens to also be an organ of a State, Article 7 of the ario requires that the international organization 44 45

46

See the text at supra note 42. See Art. 2(d) of the ario, which defines an ‘agent of an international organization’ as “[a]n official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts”. un member States must take any action required to carry out the decisions of the Security Council in accordance with Art. 48 of the un Charter, and thus constitute ‘persons through whom the organization acts’. See un Doc. A/cn.4/L.622 (2002) p. 5, para. 15; and un Doc. A/59/10 (2004) p. 101, para. 4.

Sharing Responsibility For Un Targeted Sanctions

151

exercise effective factual control over the conduct of the State organ in order to attribute it to the international organization. Article 7 indeed provides that “[t]he conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct”.47 The type of ‘effective control’ envisaged in the provision is factual control on the ground48 along the lines of Nicaragua49 and of Article 8 of the Articles on the  Responsibility of States,50 and not normative control along the lines described above. This means that when a State organ is implementing the decision of the  Security Council, its conduct, according to the ario and ars, is solely attributable to the State and not to the un, even though the un, through the Security Council, is exercising effective normative control over the State organ. There is nothing that the State organ can do except undertake the conduct that the Security Council requires in the context of a sanction regime like the 1267/1989 regime: it must freeze the assets, and so forth, of the individual named by the Security Council, and has no discretion at all in undertaking that conduct. Derivative Responsibility for the Internationally Wrongful Act of Another Be that as it may, in the final analysis the un can still be held responsible for the wrongful act of the member States through the provisions on ‘circumvention’ in Article 17 of the ario. Article 17(1) provides that “[a]n international C

47 48 49 50

Emphasis added. See ario commentary to Art. 7, paras. 4–5. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. us), 27 June 1986, International Court of Justice, [1986] icj Reports p.14, para. 115. See ars commentary on Art. 8 for a discussion on the degree of control needed for the attribution of an act of a private individual to the State. The commentary makes reference to both the effective control test in Nicaragua and the overall control test in the Tadić case  and highlights the differences between the two cases. It concludes that “[i]n any event it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it”. However, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro), 26 February, 2007, International Court of Justice, [2007] icj Reports p. 43, paras. 208 et seq and paras. 399 et seq, the icj confirmed that the threshold of control required for attribution is indeed effective control.

152

Tzanakopoulos

organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization”. By forcing a member State to violate the right to a fair trial through a binding decision of the Security Council, the un is circumventing its own international obligation to respect that right, an act which would have been internationally wrongful if the relevant conduct (which results in the violation of the right) had been attributable to the un. The provision however is rather problematic in that it is redundant,51 and in any case it does not reflect customary law.52 It also (con)fuses primary with secondary norms, since it purports to allocate responsibility for the acts of member States to the international organization, when in reality what it does is to prohibit ‘circumvention’ of obligations by the international organization (an act that remains wrongful even when the member State acting in implementation of the binding decision of the organization does not perpetrate an internationally wrongful act itself).53 It is much preferable (and simpler) to accept concurrent attribution of member State organ conduct to both the member State and the un, rather than to go about inventing ‘circumvention’ rules to allocate international responsibility for the act of another. However, the bottom line is that the international responsibility of both entities, international organization and implementing member States, will be engaged in the end, in one way or another. The next question then is whether this international responsibility remains separate for the two entities or whether it can somehow be shared between them. 4

un and Member States Sharing International Responsibility

Whether through the parallel perpetration of (similar) internationally wrongful acts by independent conduct (Section  3.A above), or through concurrent  attribution of conduct (Section  3.B above), or even through derivative 51 52

53

See Tzanakopoulos , supra note 35, pp. 48–50. See Nataša Nedeski & André Nollkaemper, ‘Responsibility of International Organizations “in Connection with Acts of States”’ (2012) 9 International Organizations Law Review p. 33, at p. 41. For the fundamental concerns raised by Art. 17 of the ario, see also generally ibid, especially pp. 43–44.

Sharing Responsibility For Un Targeted Sanctions

153

responsibility for the act of another (Section 3.C above), both the un and the implementing member States will become responsible for violating the right of access to a court and the right to an effective remedy (even if the relevant obligation stems from different sources, i.e. custom and treaty, for the un and its member States respectively). How can this responsibility be implemented, and indeed be shared, in practice? This is the point where we can see shared responsibility in action, and it is all on account of significant practice on the part of domestic and regional international courts. Taking domestic courts first, in which I include the eu courts,54 these may not have jurisdiction over the un, but they do have jurisdiction over domestic implementing measures adopted by the State. Individuals targeted by the 1267/1989 regime have brought cases before these courts seeking to have the domestic implementing measures struck down or set aside. The following paragraphs discuss how domestic and regional international courts have dealt with such claims.55 A Accepting Concurrent Attribution but Avoiding (Proper) Review If courts recognize that State conduct is conditioned by the un-imposed strict obligation, they have difficulty holding the State responsible for the violation of the right to a fair trial, even though they do usually attribute the implementing act to the State (as the act of a State organ). The courts, in such circumstances, implicitly confirm the concurrent, or ‘shared’, attribution of the conduct complained of, because they understand that the State has acted, but has acted under the normative control of the un. But then, and because of the connection of the State act with the un act, the courts will do one of two things to avoid holding the State responsible, and thus implicating the un, which they understand escapes their jurisdiction. The first avoidance technique is to accept that by reviewing the implementing act the court must also review the un act. In that case, the court adopts a very lax standard of review. This happens, for example, when the court claims that it must review the impugned act against the only set of rules that is 54

55

eu courts operate within the contours of a specific partial, self-proclaimed ‘autonomous’ legal order, are bound by that legal order’s ‘own’ hierarchy of norms, apply and interpret eu law in a way similar to how domestic courts apply domestic law, and can determine their own (and ‘their’ legal order’s) relationship with international law. See further on this issue the works cited supra note 26. On the ecj judgement in Kadi I as a clear message on the autonomy of the European legal order, see generally Grainne De Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 Harvard International Law Journal p. 1. See in more detail Tzanakopoulos, supra note 32, p. 54.

154

Tzanakopoulos

binding both on the State and on the un Security Council, and then it claims that this set of rules is exhausted in the limited and notoriously vague peremptory norms of international law (jus cogens).56 Another avoidance technique is for the court to accept that it must incidentally review the act of the international organization (as above) but then defer to the allegedly equivalent protection of human rights available at the level of the international organization.57 In simple terms, this means that the court 56

See e.g. Kadi i cfi, supra note 1, paras. 213 et seq., especially para. 215 where it is stated that “[a]ny review of the internal lawfulness of the contested regulation, especially having regard to the provision or general principles of Community law relating to the protection of fundamental rights, would therefore imply that the Court is to consider, indirectly, the lawfulness of those resolutions”; and para. 218: “It must be recognised that such a limitation of jurisdiction [to review only for compliance with jus cogens] is necessary as a corollary to the principles identified above, in the Court’s examination of the relationship between the international legal order under the United Nations and the Community legal order”. See also Nada (Youssef ) v. State Secretariat for Economic Affairs and Federal Department of Economic Affairs, 14 November 2007, Federal Supreme Court, Administrative Appeal Judgment, Case No. 1A 45/2007, bge 133 ii 450, ildc 461 (ch 2007), paras. 6.2 et seq. 57 See e.g. Bosphorus, supra note 28, paras. 156–157: By ‘equivalent’ the Court means ‘comparable’; any requirement that the organization’s protection be ‘identical’ could run counter to the interest of international cooperation pursued .... If such equivalent protection is considered to be provided by the organization, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization …. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. The Court did not rebut the presumption in the end. However, note the decision in Al-Dulimi (supra note 12), now pending before the Grand Chamber, especially paras. 114–115 and 118: State action taken in compliance with such obligations is justified where the relevant organization protects fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. In other words, if such equivalent protection is considered to be provided by the organization, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization.… As to the protection afforded in the present case, the Court observes that the respondent Government themselves admit that the system in place, even in its improved form since Resolution 1730 (2006), enabling the applicants to apply to a ‘Focal Point’ for the deletion of their names from the Security Council lists, does not provide a level of protection that is equivalent to that required by the Convention .... The Court shares that view.

Sharing Responsibility For Un Targeted Sanctions

155

accepts in principle that it must review the State act, and incidentally the international organization act which conditions the State act, but then argues that, because the international organization act was adopted within a framework that offers equivalent protection of human rights (whether that is really true or not is another matter), the court may thus forgo such review, as there is a presumption that the international organization act (and thus the State act conditioned by it) is in accordance with human rights obligations. B Holding the State Responsible for Sanctions Implementing Acts Neither of the two options above allows courts to properly review either the conduct of the un, or the implementing conduct of the member State. So eventually courts abandoned such approaches and started pretending that the State implementing conduct was not conditioned by the un act. This radical disengagement of the two courses of conduct is of course wrong: to claim, as the ecj did in Kadi,58 or the uk Supreme Court in Ahmed,59 or the ecthr in Nada,60 that the 1267/1989 sanctions regime allows any margin of discretion in its implementation cannot withstand scrutiny.61 When the Council demands that a particular person must have their assets frozen, the obligation is one of result. If the assets are not frozen, then the obligation is violated, and so no margin of appreciation or discretion is allowed to the implementing State. And yet, domestic courts have quashed sanctions implementing acts for violation of the right to a fair trial (as guaranteed under 58

See Kadi i ecj, supra note 1, paras. 296–299 and 360, most notably para. 298, implying that the obligation under the sanctions regime can be complied with in many different ways: “The Charter of the United Nations leaves the Members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order”. 59 See Ahmed, supra note 3, para. 196: As it seems to me, two paramount considerations will always arise: first, the degree of specificity of the un decision which the uk is called upon to implement; second, the extent to which the implementing measure will interfere with fundamental human rights. Of course, the legislation affords the Minister some margin of appreciation as to just what is ‘necessary or expedient’ for enabling the effective implementation of the United Nations resolution. 60 See Nada, supra note 2, para. 184: A margin of appreciation must be left to the competent national authorities in this connection. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. 61 See Tzanakopoulos, supra note 32, pp. 59–60.

156

Tzanakopoulos

domestic law, which in substance coincides with the guarantee in international law).62 In effect, the courts here can be seen as offering something akin to ‘juridical restitution’ (withdrawal of the offending normative act), which is but a method of implementing the international responsibility of the State for violation of the right to a fair trial.63 It can be argued, of course, that such implementation is ‘internal’ to the State, because it takes place through the action of its domestic courts, the latter being the ‘last line of defence’ before the engagement of international responsibility; hence the requirement under general i­nternational law to exhaust local remedies before a State exercising diplomatic protection, or an individual or legal entity entitled to do so in its own name, may bring an international claim against a(nother) State.64 However, such implementation of responsibility of the implementing State can also take place properly, before an international court. The decision of the ecthr in Nada is a clear example where a State is held internationally responsible for not offering an effective remedy, even though it was internationally bound to act in the (wrongful) way that it did.65 Here, the court cannot offer itself juridical restitution (withdrawal of the offending normative act, for example through quashing), but it may demand that the State offer such juridical restitution or otherwise cease the internationally wrongful violation of the protected human right. In this second set of cases where courts hold the State responsible for the violation occasioned by its implementing of the sanctions, ‘sharing’ is not limited to attribution (as in the first set, where avoidance mechanisms kick in),

62



63 64 65

For this concept of ‘consubstantial rules’, see further Tzanakopoulos, ‘Domestic Courts in International Law’, supra note 26, p. 143: [E]ven pre-existing domestic law may happen to coincide, in substance, with international norms, and thus result in the application of international law domestically in a more or less ‘unconscious’ manner (referred to in this chapter as ‘deeply internationalized’ or ‘consubstantial’ norms); originally a theological term, ‘consubstantiality’ denotes that “which is regarded as identical in substance or essence” with something else “though different in aspect”. See also at p. 158: “it could be said that domestic courts even interpret international norms when they engage in interpretation of a ‘consubstantial’, if formally unrelated, domestic norm”. See also Art. 35 of the ars and accompanying commentary. See e.g. Elettronica Sicula SpA (us v. Italy), 20 July 1989, International Court of Justice, [1989] icj Reports p. 15, at p. 42 para. 50. See Nada , supra note 2, paras. 207–214.

Sharing Responsibility For Un Targeted Sanctions

157

but it is taken to its logical conclusion: a type of ‘shared’ responsibility. The next and last subsection explains how this comes about. C The Mechanics of Sharing Responsibility for un Targeted Sanctions The domestic court ‘implements’ the responsibility of the State for the violation of the right to a fair trial by effecting something akin to juridical restitution in striking down the domestic implementing measure. Though internal, this ‘implementation’ demonstrates that the State would be in breach of its international obligations were it not for the domestic court to intervene and eliminate the breach at the last minute. Even better (and clearer), the regional international court holds the State internationally responsible and requires that it effect juridical restitution and make compensation in favour of the beneficiary of the rule (the targeted individual). This is the State responsibility ‘part’: the State is either shown to be, or is properly held to be, internationally responsible for implementing the un sanctions in breach of human rights obligations, and is ordered to stop doing so. The State, however, is forced in this way to breach its obligation under Article 25 of the un Charter to comply with the Security Council decision. The State may be able to justify this disobedience as a countermeasure: it can claim to be violating its obligation to comply with Article 25 in response to the un’s violation of human rights obligations incumbent upon it.66 However, justifying disobedience as a countermeasure against the un is a relatively unsatisfactory solution to the problem, which can also practically not extend in time indefinitely. The State will want to extricate itself from a situation in which a un violation is forcing it to either commit a violation itself, or to disobey the Security Council. It is thus forced in practice to put pressure on the un to reform the sanctions regime and to have it comply with the right to a fair trial. This leads to the implementation of un responsibility for the violation of the right, and constitutes the international organization responsibility ‘part’ of the shared responsibility regime. Indeed, the model is not imaginary, but reflects what has happened in practice over the last few years, even with the admission of the Security Council itself. In Resolution 1904, the Security Council explicitly recognised that the reform of the delisting regime was undertaken in response to continued legal challenges in member State courts.67 Responsibility for the violation of aspects 66 67

See generally Tzanakopoulos, supra note 35, Chapter 7. un Security Council Resolution 1904/2009, preambulatory para. 9. For a detailed analysis of how domestic courts and other actions have influenced the Security Council, see also Boisson de Chazournes & Kuijper, supra note 15, pp. 79–83.

158

Tzanakopoulos

of the right to a fair trial (access to a court and right to an effective remedy) is then shared in practice between the member State and the un. The member State is forced by courts implementing the member State’s responsibility to itself implement the responsibility of the un. 5 Conclusion International organizations often lack operational capacity, but may command significant normative power over States. By contrast, States have organs with significant operational capacity. Adoption of sanctions by the un Security Council under Chapter vii of the un Charter would remain a dead letter without enlisting the capacity of States to implement these measures on the ground. And yet, the un may adopt such targeted sanctions which at once allow States no discretion in their implementation, and constitute breaches of internationally protected human rights, such as the right of access to a court and the right to a remedy (both aspects of the right to a fair trial). The 1267/1989 sanctions regime against (initially Osama bin Laden, the Taliban, and now just) Al-Qaida is a good example. In such cases, the un and its member States both contribute to a single harmful outcome. International responsibility for this is shared in practice, as demonstrated by recent developments in domestic and regional international courts: States are held responsible by domestic or regional international courts, and are forced to disobey the Security Council in order to comply with their human rights obligations. In turn, the States put pressure on the Security Council to reform the offending regime, forcing the un to comply with its own international obligations.

chapter 9

The Responsibility of Member States of International Organizations A Special Case for the European Union? Esa Paasivirta 1 Introduction This paper addresses the question of the responsibility of a member State of an international organization in the particular setting of the European Union (“eu” or “the Union”) and queries whether the eu context constitutes a special case as compared to other international organizations. While the response to this question seems affirmative, it certainly requires some explanation why this is a special case in comparison to the situation of member States in other international organizations. The special case of the eu is not solely confined to the question of the responsibility of its member States, but it also applies to the organization as such. It is most visible in the context of international treaty practice, even though not limited to it. The special case of the eu is connected to different things: the voluminous nature of the eu's international treaty practice as such; the phenomenon of mixed agreements; and the modus operandi of the eu relating to the way in which international agreements are implemented within the eu framework. All of these different aspects contribute to the special way the member States feature in the context of the eu when issues of responsibility ultimately arise. The paper will first differentiate between factual/behavioural aspects in the eu’s external action from the more distinctly legal aspects. It will then proceed to consider the notions of legal personality, competence and responsibility in relation to the eu. This is followed by consideration of the duty of communication as a complementary principle in the context of the so-called “mixed agreements” and joint responsibility as a default position. The conclusion will highlight the special case of the eu by pinpointing the key reasons contributing to it. * The views expressed in this paper are personal and not necessarily reflecting the views of any of the eu institutions.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_010

160 2

Paasivirta

The European Union is a Special Case for Different Reasons

As a practical matter, issues of responsibility arise much more frequently in the case of the European Union than any other international organization. This is connected with the fact that the eu as an organization is engaged in such a large number of international treaty commitments. The eu’s comprehensive international treaty practice entails broad regulatory treaties such as the Law of the Sea Convention (‘unclos’) or the membership in the World Trade Organization (‘wto’), involving compulsory dispute settlement mechanisms. The fact that the eu participates in such treaties inevitably means that issues of responsibility arise at regular intervals. Today, the eu is party altogether to 258 multilateral agreements and 852 bilateral agreements.1 The potential for the issue of member State responsibility to arise is furthermore related to the phenomenon of ‘mixed agreements’.2 Indeed, the framework of mixed agreements —agreements in which both the eu and its member States participate — has become the predominant form of eu participation in major international treaties and conventions. This particular form of participation carries with it the potential that the issue of member State responsibility arises as a separate issue in the context of international disputes related to eu action. In so far as the ‘mixed’ participation in international treaties is a matter of choice — and this is notably so with regard to so-called ‘false mixity’ situations3 — the possibility of member State responsibility arising is in the end attributable to the way in which the eu and member States themselves choose to conduct their treaty relations. Evidently, the ‘mixed’ form of action in principle raises multiple questions of member State responsibility more often than would be the case if the organization alone participates in the agreements. However, this potential member State responsibility is not necessarily borne out in reality to the extent that one might assume at first sight. This is reflected at least in the trade field, as shown in the wto dispute settlement practice. It is only exceptionally that individual eu member States have  been targeted, despite the mixity of the wto Agreement, and even then mostly alongside the eu; and it has been ultimately the eu that is normally responsible.4 1 As recorded by the Treaty Office of the eu's External Action Service. 2 See generally Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (Brill / Nijhoff, Leiden, 2001). 3 On ‘false mixity’, see e.g. Allan Rosas, ‘Mixed Union –Mixed Agreements’, in Martti Kosken­ niemi (ed.), International Law Aspects of the European Union (Martinus Nijhoff, The Hague, 1998), pp. 125–248, at p. 127 et seq. 4 Interestingly, it has been pointed out that individual eu member States have been (initial) respondents only in 13 cases in wto dispute settlement procedures, while the eu itself has

Responsibility of Member States of International Organizations

161

In any event, for the reasons above the eu is undoubtedly a special case compared to other international organizations, which are not parties to multilateral treaties and dispute settlement, or not involved with a comparable phenomenon as that of the eu's mixed agreements. However, the more distinctly legal or institutional reason which tends to raise the question of possible member State responsibility to the fore is related to the very structure of how the eu as an organization conducts its action. In essence, the eu competence takes the nature of regulatory competence instead of competence over implementation. Characteristically, the eu legislates, or concludes international agreements, while the implementation, for most but not all cases, relies on the authorities of the member States. This will be discussed further below. For the reasons outlined above, related to the phenomenon of mixed agreements as well as the general mode of conducting eu action via the authorities of the member States, the issue of member State responsibility can be raised more frequently regarding the eu than in the case of other organizations. After these factual observations, one should consider the question of the responsibility of a member State of an international organization in the light of the relevant legal notions relating to this issue in the particular context of the eu. 3

The Legal Scheme: Personality – Competence – Responsibility

Following the conceptual legal scheme outlined above, this paper will first consider the notion of legal personality of the eu, and then the concept of competence which plays a particularly central role in the case of the Union. Competence features in a prominent manner in almost any debate that the eu institutions conduct in the field of international relations. The competence of the Union points to its power to adopt legal obligations, be it via the conclusion of international treaties or the passing of legislation, while international responsibility addresses the conditions and legal consequences of a conduct that can be attributed to the eu for the violation of its international legal obligations.

been a party in 275 cases (respondent in 70 cases). See Andrés Delgado Casteleiro & Joris Larik, ‘The Responsibility of the eu at the wto’, in M. Evans and P. Koutrakos (eds.), The International Responsibility of the European Union: European and International Perspectives (Hart Publishing, Oxford, 2013) p. 233, at p. 239–241.

162

Paasivirta

Legal Personality A All legal systems make a distinction between the legal responsibility of a corporate body and its members. In international law, this is reflected for instance in the Articles on the Responsibility of International Organizations (‘ario’) established by the International Law Commission's (‘ilc’), which provide: “Every internationally wrongful act of an international organization entails the international responsibility of that organization”.5 This reflects the basic rule that the organization should be responsible for its own acts. In so far as the legal personality is established, a distinction is to be made between members and the organization itself. In those terms, while the issue of a separate responsibility of the members of an international organization may arise, it is a fairly narrow exception to the main rule, which would apply only in exceptional circumstances recognized in international law.6 It is also a part of a well-entrenched legal image that an international organization which possesses legal personality must have its own will which is expressed by its own organs or agents through which it acts. As one author puts it: “In summary then: international organizations have at least one organ with the capacity to generate a will attributable to the organization alone”.7 By now, the legal personality of the eu has ceased to be a practical issue, following the entry into force of the Lisbon Treaty.8 Article 47 of the Treaty on 5 ilc, ‘Draft Articles on the Responsibility of International Organizations, with Commentaries’, in Report of the International Law Commission on the Work of its 63rd Session (26 April-3 June and 4 July-12 August 2011), un Doc. a/66/10, [2011] 2 Yearbook of the International Law Commission (‘ario with Commentaries’), Art. 3 (emphasis added). 6 See e.g. Art. 61 of the ario (“Circumvention of international obligations of a State member of an international organization), ibid. The evolution and formative stages of this provision are addressed in E. Paasivirta, ‘Responsibility of a Member State of an International Organization: Where will it End?’ (2010) 7(1) International Organizations Law Review pp. 49–61. Art. 62 (“Responsibility of a State member of an international organization for an internationally wrongful act of that organization”) provides for member State responsibility on condition that it has accepted such responsibility or has led the injured party to rely on its responsibility, but clarifies that responsibility on this basis is presumed to be subsidiary. 7 Kristen Schmalenbach, ‘International Organizations or Institutions, General Aspects’, entry in Rüdiger Wolfrum (gen. ed.), Max Planck Encyclopedia of Public International Law, para. 7 (oup, Oxford, 2014). 8 The fact that the pre-Lisbon Treaties did not explicitly confer legal personality for the entire eu left the matter somewhat unclear and generated wide debate amongst international lawyers. For this debate, see e.g. Jan Klabbers, ‘Presumptive Personality: The European Union in International Law’, in Koskenniemi (ed.), supra note 3, pp. 231–253; Philippe Gautier, ‘The Reparation for Injuries Case Revisited: The Personality of the European Union’ (2000) 4 Max

Responsibility of Member States of International Organizations

163

European Union (‘teu’) now provides that “[t]he Union shall have legal personality”. Thereby, legal personality is in explicit terms given to the eu, with the view to strengthening the Union's ability to act in all fields of international relations, in line with the objectives set in Article 21 of the teu. The Union also has its own organs, seven main ‘institutions’, which can act or express the will of the organization in their respective functions. These include the European Commission, Council, Parliament and Court.9 The establishment of the legal personality for the Union at large completes the dismantling of the pre-Lisbon three-pillar structure, which confined legal personality to the ‘European Communities’ while leaving out in particular the field covered by the common foreign and security policy. Apart from this explicit establishment of legal personality, the Union's legal  personality is implicitly manifested in multiple ways. This is shown in particular by its comprehensive international treaty practice, as mentioned above, covering participation in 258 multilateral agreements and 852 bilateral agreements10 as well as by the accreditation of 165 foreign diplomatic missions to the eu and the 139 eu Delegations and Offices operating around the world. The eu statement at the un General Assembly 6th Committee (3 November 2014) summarised the matter inter alia as follows: Firstly, the European Union has legal personality and is subject of international law exercising rights and bearing responsibilities. Secondly, it is important to note that the eu has full treaty making capacity, which follows from the competences conferred on it by its member States in many important areas such as trade, development, fisheries, and the environment, to name but few. It is also important to note that the eu is recognized by others as a treaty partner in a large number of multilateral and bilateral treaties, either on its own or alongside its member States.11

9 10 11

Planck Yearbook of United Nations Law pp. 331–362; Esa Paasivirta, ‘The European Union: From an Aggregate of States to a Legal Person’, (1997) 2 Hofstra Law & Policy Symposium pp. 37–60. Art. 13 of the teu. As recorded by the Treaty Office of the eu's External Action Service. Eglantine Cujo, Legal Adviser, Delegation of the European Union to the United Nations, ‘Statement on behalf of the European Union’, at the Sixth Committee on Agenda Item 78 on the Identification of Customary International Law (3 November 2014), available at: .

164

Paasivirta

It may be recalled that in the famous Reparation for Injuries Case (1949)12 the International Court of Justice confirmed the international legal personality of the United Nations even though the un Charter had not addressed the matter in any explicit terms. In this case, the notion of personality appears in rather abstract terms as a kind of sum-up of the general “capacity” of an international organization to be “subject of rights and duties” under international law.13 In that sense, the existence of legal personality of an organization constitutes a preliminary issue for an organization to act in its own name as a claimant for the violations of its rights under international law, as it was in the Reparations Case, or as a bearer of responsibility distinct from its members. The existence of legal personality creates a strong presumption that the organization alone is responsible for its acts, something which is difficult to rebut by lifting the ‘corporate veil’ in order to establish a separate responsibility for the member States of the organization. In terms of legal policy, the respect for the separate legal personality of an international organization is important in the sense that it is a way to maintain and promote international cooperation which is carried out in the form of international corporate bodies. For present purposes, it suffices to say that the legal personality of the eu is by now an established legal fact which is not seriously questioned today. The basic message resulting from the existence of legal personality of an international organization is that it highlights that the organization should be treated separately from its members. The responsibility of the organization is premised on it possessing a legal personality, while in its absence the member States would remain responsible individually or as a group of States. This is a common feature concerning all international organizations. However, the notion of legal personality does not offer any particular insight or legal explanation to address the special case of the Union or its member States, as this special case is rather connected with the particular modus operandi of the Union.

12 13

Reparations for Injuries Suffered in the Service of the United Nations, 11 April 1949, International Court of Justice, Advisory, Opinion, [1949] icj Reports p. 178. “What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims”: ibid., at p. 179. In international law doctrine, the notion of legal personality on its own has been considered somewhat of an empty shell which needs to be further defined by the powers of the organization. See generally Jan Klabbers, An Introduction to International Institutional Law. (Cambridge University Press, Cambridge, 2002) at pp. 54, 57; Matthias Ruffert & Christian Walter, Institutionalised International Law, (C.H. Beck, Hart, Nomos, Baden-Baden, 2015) at pp. 76–77; Gautier, supra note 6, at p. 336.

Responsibility of Member States of International Organizations

165

B Competence and Responsibility If the notion of legal personality is about status and related general capacity to act under international law, the concept of competence denotes the public powers which the member States have conferred on the organization. In the case of the eu — a global actor involved in numerous international engagements alongside States — the notion of competence is the essential legal starting point for any action of the organization. The eu's founding treaties do not address the question of international responsibility in any explicit terms. Instead, the founding treaties address the question of competence of the organization and its relation to the member States. The notion of competence indeed occupies a central place in the eu's founding treaties and, as mentioned above, it is widely reflected in the debates conducted within the eu institutions, especially in relation to external action. The specific competences in the various policy areas vary as they are divided, in essence, into exclusive (Article 3(1) and (2) of the tfeu) and non-exclusive competences (the latter including shared competences, Article 4 (1) and (2) of the tfeu, parallel competences, Article 4(3) and (4), and supporting competences, Article 6 of the tfeu). This framework creates a system which not only establishes the competences of the organization, but which also defines where parallel member State action is either entirely excluded (exclusive competence) or where it is permitted either wholly (parallel competences) or under certain conditions (shared competences).14 This sophisticated system of the nature of the competences is unique in comparison to other international organizations. Specifically, the key concept to be noted in this context is the principle of ‘conferral of competence’ which defines and limits the Union's competences (Article 5(1) of the teu) and what matters is that the Union shall act only within the limits conferred upon it from its member States (Article 5(2) of the teu). It should be stressed, as the Court of Justice has recently stated, that “the eu has only conferred powers”.15 These conferred competences are the very foundation of all of the Union's legislative and regulatory activity, including its engagement in international relations. The Union's legal system has certain special features worth highlighting, which concern the exercise of its competences and how operational acts are carried out in practice. The Union competences in many core areas related to 14 15

In general, see Koen Lenaerts & Piet van Nuffel, European Union Law (3rd ed.)(Sweet & Maxwell, London, 2011) at pp. 124–30. Opinion pursuant to Art. 218(11) tfeu (14 October 2014), European Court of Justice, Grand Chamber, Opinion 1/13, at para. 74.

166

Paasivirta

its internal market are, characteristically, but not exclusively, regulatory competences. The key tasks of the Union involve laying down legislation and its competences permit it to enter into comprehensive international treaty frameworks, like the wto and unclos, which set out rules for important sectors of international cooperation. In this context it is a question of adoption of binding legal rules at the Union level.16 Yet, at the same time, the practical application and management of the eu rules is carried out, not only at the Union level through its own organs — which is the case, for instance, in relation to decisions concerning state aid or management of competition by the eu institutions — but also to a large extent by the national authorities of member States. The national authorities operate in a kind of symbiotic relationship with the organization. This is reflected for instance by the fact that the member States are, pursuant to Article 216(2) of the tfeu, bound by the treaties concluded by the Union and, pursuant to Article 4(3) of the teu and Article 291(1) of the tfeu, bound to implement the obligations flowing from the eu Treaties and the acts of the eu institutions. The eu does not have its own local administration in the member States (like in us-style federalism), and thus the eu member State authorities play a key role in the execution of eu acts, in lieu of the organization acting via its own organs.17 For these reasons, there is a constant presence of member States in the eu action which tends to generate questions of separate member State responsibility. That peculiar mode of eu action, which is at the core of the operational nature of the eu legal system, sets challenges for purposes of responsibility under international law. This is so in particular as the immediate ‘organic link’ to the conduct of the organization is often missing. This is something that has been considered central in relation to the attribution of acts, as the traditional perception of an international organization is that it acts via its own organs or agents.18 These differences in the modus operandi would not matter if they were limited to a few isolated instances. However, it is a 16 17

18

Note that, pursuant to Art. 2(1)(2) tfeu, in the core areas of exclusive and shared competences it is a question of competences to “legislate and adopt legally binding acts”. Esa Paasivirta & Pieter Jan Kuijper, ‘Does One Size Fit All? The European Community and the Responsibility of International Organizations’ (2005) 36 Netherlands Yearbook of International Law pp. 169–226, at pp. 178–179, 188–192. For an attempt to outline different models of attribution relevant for purposes of eu's international responsibility, see Pieter Jan Kuijper & Esa Paasivirta ‘eu International Responsibility and Its Attribution: From the Inside Looking Out’, in M. Evans and P. Koutrakos (eds.), The International Responsibility of the European Union: European and International Perspectives p. 35, at pp. 48–67.

Responsibility of Member States of International Organizations

167

question of normal conduct of eu action, and indeed a central feature of how the execution of the entire legal system is operated. At the same time, the eu has a very large treaty practice, unlike any other organization. These are elements which should arguably make the eu a special case for purposes of responsibility. However, these are matters that are not fully settled in international law. Pursuant to Article 4 of the ario, for certain conduct of an organization to be wrongful it has to, first, constitute a breach of an international obligation of that organization and, second, it has to be attributable to the organization under international law.19 For the purposes of attribution, Article 6 of the ario defines the conduct of an organization via its “organ or “agent”, while exceptionally Article 9 provides that conduct which is “acknowledged and adopted” can also be considered an act of the organization. However, the final report of the ilc, after having grappled with the diversity of international organizations, readily admits that the draft rules are based on limited practice and therefore they “do not necessarily yet have the same authority as the corresponding provisions of State responsibility”.20 This seems particularly true with regard to issues relating to attribution. The basic view reflected in ario that the conduct of an international organization is carried out through its own ‘organs’ or ‘agents’ is difficult to square with the law and practice of the eu in so far as it conducts its action via the national authorities of its member States, which either simply execute internal eu legislative acts or which are otherwise substantially controlled in their action by the eu law principles.21 From the viewpoint of eu law, it can be argued that in that case the basic line to take for international responsibility of the organization starts with the notion of competence. If the Union has exclusive competence to act in a particular field and to establish international obligations in that field it must also be capable of being responsible vis-à-vis its treaty partners for compliance with those obligations. In that case, it would also be the Union that can actually remedy the situation by using its regulatory competences.22 Therefore, the legal consequences following from the breach should, in principle, address the

19 20 21

22

ario with Commentaries, supra note 5, paras. 5–8. Ibid. Frank Hoffmeister, ‘Litigating against the European Union and its Member States: Who Responds under the ilc's Draft Articles on the International Responsibility of International Organizations?’ (2010) 21(3) European Journal of International Law pp. 723– 747, at p. 741. Ibid., at 743.

168

Paasivirta

Union, not its member States. On the other hand, if the competence lies with the member States, then normally so should the responsibility. As regards recent developments at the international level, the connection between competence and responsibility is reflected in the recent Advisory Opinion of the International Tribunal for the Law of the Sea in Case No. 21,23 given on 2 April 2015. It was initiated by the Sub-Regional Fisheries Commission (‘srfc’), a West-African fisheries organization involving seven member States, relating to flag State liability for illegal, unreported and unregulated (“iuu”) fishing activities conducted within the Exclusive Economic Zone (‘eez’) of States other than the flag State. The Tribunal was inter alia requested to address a question concerning liability in a situation in which a fishing license was issued to a vessel within the framework of an international agreement with an international organization. The issue was to determine whether it is the flag State or the international organization that should be held liable for the violation of the due diligence obligation resulting from the infringement of the coastal State’s legislation by the fishing vessels of the flag State. As to this question, which was clearly addressed to the eu, the itlos Advisory Opinion stated inter alia as follows: 168. The Tribunal wishes to point out that, in the present case, the liability of an international organization for an internationally wrongful act is linked to its competence. This is clearly spelled out in article 6, paragraph 1, of Annex ix to the Convention, which provides that parties which have competence under article 5 of that Annex have responsibility for failure to comply with obligations or for any other violation of the Convention. It follows that an international organization which in a matter of its competence undertakes an obligation, in respect of which compliance depends on the conduct of its member States, may be held liable if a member State fails to comply with such obligation and the organization did not meet its obligation of “due diligence”. …. 172. The Tribunal holds that in cases where an international organization, in the exercise of its exclusive competence in fisheries matters, concludes a fisheries access agreement with an srfc member State, which provides for access by vessels flying the flag of its member States to fish in the exclusive economic zone of that State, the obligations of the flag State 23

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, 2 April 2015, International Tribunal for the Law of the Sea, Advisory Opinion, Case No. 21, available at: .

Responsibility of Member States of International Organizations

169

become the obligations of the international organization. The international organization, as the only contracting party to the fisheries access agreement with the srfc member State, must therefore ensure that vessels flying the flag of a member State comply with the fisheries laws and regulations of the srfc member State and do not conduct iuu fishing activities within the exclusive economic zone of that State. 173. Accordingly, only the international organization may be held liable for any breach of its obligations arising from the fisheries access agreement, and not its member States. Therefore, if the international organization does not meet its “due diligence” obligations, the sfrc member States may hold the international organization liable for the violation of their fisheries laws and regulations by a vessel flying the flag of a member State of that organization and fishing in the exclusive economic zones of the srfc member States within the framework of a fisheries access agreement between that organization and such member States”. This was the first time that an international tribunal acting under unclos addressed and maintained the connection between competence and responsibility in such express terms.24 It is a good illustration of the symbiotic relationship between the Union's competence and the exercise of flag State powers in an area of exclusive Union competence. It is also an example of the special case of the eu and its member States as regards questions of international responsibility. It is possible that such international judicial decisions also influence broader international law developments beyond the specific treaty regimes where they arise. The connection between competence and responsibility is to a large extent reflected in the trade area in the wto practice. While the wto is not covered by a special declaration of competence, unlike unclos, the practice conforms largely to the division of competences between the eu and its member States as established in the eu Treaties.25 24

25

This has been implicitly accepted by the claimants in two earlier cases which were conducted against the eu under Annex vii of unclos, which were settled by negotiation. See Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community), International Tribunal for the Law of the Sea, Case No. 7; Atlanto-Scandian Herring (Denmark in respect of the Faroe Islands v. European Union), 23 September 2009, Permanent Court of Arbitration, Case No. 2013-30. See Esa Paasivirta, ‘The European Union and the United Nations Convention on the Law of the Sea’(2015) 38(4) Fordam International Law Journal pp. 1045–1071, at pp. 1056–1058. Casteleiro & Larik, supra note 4; Kuijper & Paasivirta, supra note 17, at pp. 660–63.

170

Paasivirta

As regards recent developments at the eu level, it should be recalled that, following the Lisbon Treaty, the area of foreign direct investments is now subject to exclusive Union competence as part of the common commercial policy under Article 207 of the tfeu. Since then, legislation has been introduced in  what concerns the internal arrangements relating to financial aspects and  ­conduct of arbitration proceedings. In this regard, one should mention Regulation (eu) No 912/2014 of 23 July 2014, based on Article 207, establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the eu is party.26 The above Regulation (in recital 3) expresses the basic position concerning international responsibility in relation to competence and external representation as follows: International responsibility for treatment subject to dispute settlement follows division of competence between the Union and the member States. As a consequence, the Union will in principle be responsible for defending any claims alleging a violation of rules included in an agreement which fall within the Union’s exclusive competence, irrespective of whether the treatment at issue is afforded by the Union itself or by a member State. According to Article 3 of the Regulation, internal financial responsibility is borne by the Union if it is “arising from treatment afforded by the institutions, bodies, offices or agencies of the Union”, while the member State ­concerned shall bear the financial responsibility “arising from treatment afforded by that member State”. By way of exception to the latter, the Union shall bear the financial responsibility “arising from treatment afforded by a member State where such treatment was required by Union law”. In this latter case, the internal apportionment is explained further by pointing out that “it would … be inequitable if awards and the costs of arbitration were to be paid from the budget of the Union where the treatment was afforded by a member State, unless the treatment in question is required by Union law …”. The necessity for such internal arrangements and differentiations undoubtedly follows from the fact that alleged maltreatment of foreign investments on the territory of the Union can result from a variety of unforeseeable factual situations, which may be completely unrelated to the requirements of Union 26

oj l 257, 28 August 2014, p. 121.

Responsibility of Member States of International Organizations

171

law. At the same time, in such area of exclusive competence, uniform action and representation of the Union and the member States is required. All this calls for particular organizational measures, determinations and internal procedures, which have been adopted by using a legal basis which reflects the Union’s exclusive competence in this area (Article 207 of the tfeu). The basic message of the internal arrangements is clearly that the necessary determinations should be made within the Union itself, rather than be imposed from outside, in order to address the issues of responsibility subject to international litigation in an orderly manner. In the external sphere, the internal investment-related arrangements outlined above are now in the process of being introduced into new trade agreements, and reflected for instance in an agreement with Singapore, which is being finalised but not yet signed.27 The draft eu–Singapore Free Trade Agreement, Chapter 9, contains provisions on investment protection and related arbitration procedures. It specifies that a “respondent” means, in the case of the eu, “either the Union or the member State of the Union” as further provided in the provision concerning a notice of initiation to arbitrate.28 It is provided in Article 9.15 that if the dispute cannot be settled within three months from the request for consultations, the claimant may deliver a notice of intention to arbitrate which shall be sent to the Union or to Singapore. In the Union’s case, it is furthermore provided as follows: 2.

3.

27 28

Where a notice of intent to arbitrate has been sent to the Union, the Union shall make a determination of the respondent within two months from the date of receipt of the notice. The Union shall inform the claimant of this determination immediately, on the basis of which the claimant may submit a notice of arbitration pursuant to Article 9.16 (Submission of Claim to Arbitration). Where no determination of the respondent has been made pursuant to paragraph 2, the following shall apply: (a) in the event that the notice of intent to arbitrate exclusively identifies treatment by a member State of the Union, that member State shall act as respondent; (b) in the event that the notice of intent to arbitrate identifies any treatment by an institution, body or agency of the Union, the Union shall act as respondent.

The text is available at: . Art. 9.11.2(e).

172

Paasivirta

4.

Where either the Union or a member State acts as respondent, neither the Union nor the member State concerned shall assert the inadmissibility of a claim, or otherwise assert that a claim or award is unfounded or invalid, on the ground that the proper respondent should be or should have been the Union rather than the member State or vice versa. For greater certainty, nothing in this Agreement or the applicable arbitration rules shall prevent the exchange, between the Union and the member State concerned, of information relating to a dispute.

5.

The eu-level developments outlined above generally point to the connection between competence and responsibility, but they also indicate that there may be particular circumstances and a need for organizing measures, at the Union level, in relation to issues of responsibility. As the eu legislation and related international agreements are quite comparable to State practice in general, the Union practices can potentially shape more generally developments of international law in relation to the responsibility of an organization such as the eu, including the issue of member State responsibility. Such possible developments are in fact foreseen by the ilc itself, which admitted in adopting the ario that the articles lack in certain respects customary law authority due to limited practice and which provide for the possibility of “special rules” under the lex specialis provision in Article 64.29 4

The Role of Communication as a Complementary Principle in the Allocation of Responsibility in the Case of ‘Mixed Agreements’

It is not always clear where to draw the line of competence between the eu and its member States. This is often true internally, especially in the case of exclusive competence based on the effect of secondary legislation (Article 3(2) of the tfeu),30 and even more so from an external viewpoint of a third State. In addition, there is also a need for certain organising measures regarding the relations between the Union and the member States, which are best done internally. All of this requires close engagement on the basis of the principle of sincere cooperation, pursuant to Article 4(3) of the tfeu, between the Union

29 30

ario and Commentaries, supra note 5, paras 5–8. For a review of the development of this ‘erta/aetr’–effect, see Allan Rosas, ‘Exclusive Competence Revisited’ (2015) 38(4) Fordham International Law Journal p. 1073, at pp. 1084–1096.

Responsibility of Member States of International Organizations

173

and the member States, which is indispensable for the eu's uniform external representation including in the context of dispute settlement.31 This concerns in particular the case of a mixed agreement which does not contain an explicit declaration of competence by the Union or which fails to give a clear indication of the respective competences of the organization and its member States. Another situation in which the competences of the organization and its member States would need to be clarified could arise in the case of obligations based on customary international law, though there is no experience of this so far. It is suggested that there is a duty of communication on the part of the eu towards other States regarding the particular situations in which the Union and the member States choose to act through the framework of a mixed agreement. This builds on the analogy of Article 4(3) of the teu concerning sincere cooperation between the Union and its member States. In international law, such duty of communication can be seen against the backdrop of the general customary duty of international cooperation for settling disputes peacefully.32 Specific international treaty regimes, establishing institutionalized forms of cooperation and regulation of entire sectors, normally require regular and close cooperation between parties in the implementation of such treaties. Communication amongst the parties plays a particular role in such contexts of close cooperation. The point argued here can be expressed along the following lines. On the one hand, when the eu participates in multilateral treaties alongside its own member States, they jointly signal to the other parties that there exists a certain division of competences between them in respect of the treaty concerned. This is manifested concretely by the fact that for the eu to enter into 31

As early as in the Opinion pursuant to Art. 228(6) of the ec Treaty, 15 November 1995, European Court of Justice, Opinion 1/94, [1994] ecr i-5267 (in relation to the eu’s competence to enter into certain wto agreements), the Court stated (at para. 108) that where it is apparent that the subject-matter of an agreement or convention falls in part within the competence of the Community and in part within that of the member States, it is essential to ensure close cooperation between the member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community (emphasis added). On the wto dispute settlement aspects, see Frank Hoffmeister, ‘The European Union and the Peaceful Settlement of International Disputes’, (2012) 11(1) Chinese Journal of International Law pp. 77–105, esp. section II.C.iv. 32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. us), 27 June 1986, International Court of Justice, [1986] icj Reports p. 14, para. 290.

174

Paasivirta

international treaties, normally concluded only between States, it requires negotiation of a special clause covering “regional economic integration organization”(‘reio’): that is, an international organization of a special kind which has been conferred certain public powers by its member States. At present the eu is the only such organization. This formula, by now used in a large number of international treaties, recognizes in a general way that there is a special relationship between the organization and its member States based on a division of competence and that this is relevant for adhering to the treaty and implementing its obligations.33 This setting inherently commits the eu and its member States to inform the others of their respective competences as necessary for their good cooperation. This can take different forms, either by making an explicit declaration of competence or by informing the others on a case by case basis. On the other hand, with regard to the other treaty partners, which are not bound (as such) by the internal division of competences within the eu, it can be argued that by accepting an international integration organization such as the eu to adhere, alongside its member States, as their treaty partners, they thereby acknowledge that there exists a certain division of competence between the integration organization and its member States. It can be argued furthermore that, if the treaty partners of the eu accept such a division of competence at the time of the eu's adherence to a treaty, they should respect it as regards the implementation of the treaty, including issues of international responsibility. It is suggested that such duty of respect should prompt them to request information when necessary and accept the results of its communication. It is clear that such cooperation requires good faith between the parties and it is premised on the principle that the third party interests are adequately protected. Particular arrangements reflecting the above outlined principles were first adopted in unclos. That Convention, apart from involving a declaration of competence contained in the then European Community's instrument of formal confirmation (ratification), contains provisions to that effect. On the one hand, Article 5(5) of Annex ix provides, inter alia: Any State Party may request an international organization and its member States which are States Parties to provide information as to which, as between the organization and its member States, has competence in respect of any specific question which has arisen. The organization and the member States concerned shall provide this information within a reasonable time. The international organization and the member States may also, on their own initiative, provide this information. 33

For an earlier discussion, see Paasivirta & Kuijper, supra note 17, pp. 205–212.

Responsibility of Member States of International Organizations

175

On the other hand, Article 6(2) provides inter alia as follows: Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information. Similar arrangements are also known from other international agreements such as the Energy Charter Treaty.34 Hence, the duty of communication as outlined above maintains the connection between competence and responsibility and, on the other hand, provides for a complementary principle which is necessary in order to clarify the uncertainties which may often exist in practice. 5

Joint Responsibility of the eu and Its Member States as Default Position

Should the eu/member States not fulfil the duty of communication, it seems reasonable that it is followed by joint responsibility. While such joint responsibility may not reflect customary international law, it has been accepted by the eu if third party interests so required in certain situations. Thus Annex ix, Article 6(2) of unclos in the end affirms: “Failure to provide within a reasonable time or the provision of contradictory information shall result in joint and 34





In that context, the then European Communities made statement pursuant to Art. 26(3) (b)(ii) of the Energy Charter Treaty, declaring inter alia as follows (oj l 69, 9 March 1998, p. 115): The European Communities are a regional economic integration organization within the meaning of the Energy Charter Treaty. The Communities exercise the competences conferred on them by the member States through autonomous decision-making and judicial institutions. The European Communities and the member States have both concluded the Energy Charter Treaty and are thus internationally responsible for the fulfilment of the obligations contained therein, in accordance with their respective competencies. The Communities and the member States will, if necessary, determine among them who is respondent party to arbitration proceedings initiated by an Investor of another Contracting Party. In such case, upon the request of the Investor, the Communities and the member States concerned will make such determination within the period of 30 days (*). (*This is without prejudice to the right of the investor to initiate proceedings against both the Communities and their member States”).

176

Paasivirta

several liability”. Arguably, if one is to maintain an approach where the responsibility of the organization should be compatible with its competences, there is a need ultimately to accept joint responsibility as a subsidiary principle, as the unclos example demonstrates. Such outcome could be seen to be inherent in a situation involving a mixed agreement, or perhaps even implicitly intended especially in some bilateral treaty situations,35 in order to protect the interests of non-eu States engaged in treaty relations with the eu and its member States. On the other hand, unclos is so far the only instance in force in which joint responsibility has been explicitly foreseen.36 The need may depend on the particular regime and the institutional dynamics related thereto. It has been noted for instance that under the wto dispute settlement practice the Union and the member States do not appear bearers of joint and several responsibility and in the end the violations are normally attributed to the Union.37 6 Conclusion This paper has outlined 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. This special case is related to two things which particularly impact on the responsibility of a member State of the eu. First, in spite of the fact that the Union has very significant competences, including of exclusive nature, it relies to a large extent on the authorities of the member States for practical conduct and implementation, instead of its own organs. This is a central feature of the modus operandi of the Union legal 35 In European Parliament v. Council, 2 March 1994, European Court of Justice, Case C-316/91, the Court stated that “in the absence if derogation expressly laid down in the [Lomé] Convention, the Community and its member States as partners of the acp States are jointly liable to those latter States for the fulfilment of every obligation arising from the commitments undertaken, including those relating to financial assistance”: [1994] ecr i-625, at paras. 29, 33. 36 Similar considerations to address gaps in participation and accountability lie in the proposed “co-defendant system” in the draft eu Accession Agreement to the European Convention of Human Rights, though this process has been blocked due to the recent opinion by the Court of Justice for the reason that it would leave the actual apportionment of responsibility between the Union and the member States in the hands of an outside body: Opinion pursuant to Art. 228(11) tfeu, 18 December 2014, European Court of Justice, Opinion 2/13, ecli eu/c/2014/2454, paras. 215–235. 37 Casteleiro & Larik, supra note 4, at p. 245.

Responsibility of Member States of International Organizations

177

system and should be taken into account for purposes of responsibility. The itlos Advisory Opinion is a recent illustration of this in the area of fisheries policy, which is a part of the Union's exclusive competence. The internal Union legislation in the area of foreign investments also points to the general principle that responsibility should follow competence, while exclusive competence also provides a basis for taking particular internal determinations and measures for the management of dispute settlement in special circumstances. Secondly, the Union and its member States regularly choose to participate in a ‘mixed’ framework in international treaties, and this is also influenced by political and not only legal reasons. It has been suggested that the mixed participation involves a particular duty on the part of the Union and the member States to inform their treaty partners as to who is responsible for failures to comply with the obligations concerned. It has also been argued that, if the treaty partners of the Union and its member States are ready to accept the latter as parties to the agreement, such partners should normally accept their internal determinations relating to their respective responsibilities. If such determination is not forthcoming within a certain time it seems reasonable to expect that this may result in joint and several responsibility in certain circumstances in order to protect the interests of third parties.

chapter 10

Litigating Member State Responsibility

The Monetary Gold Principle and the Protection of Absent Organizations Paolo Palchetti 1 Introduction When a dispute is brought before an international tribunal against a member State of an organization and the dispute concerns the responsibility of that State for conduct taken within the framework of, or in connection with acts of, that organization, two main objections are generally raised by the defendant State in order to prevent the tribunal from ruling upon the dispute. The first objection concerns the identification of the ‘proper respondent’. It is claimed that the tribunal does not have jurisdiction over the claims submitted by the applicant because the conduct complained of must be attributed exclusively to the organization.1 The other objection has to do with the prejudicial effect of the decision of the tribunal on the legal position of the ‘absent’ organization. It is argued that, even if the conduct at stake is to be attributed to the member State, the tribunal could not decide on the responsibility of that State without necessarily deciding on the position of the organization. It is therefore claimed that, according to the Monetary Gold principle, the tribunal has to refrain from exercising its jurisdiction as this would lead to determining the responsibility of the organization or the legality of its acts. Examples of this litigation strategy can be found in the practice of the International Court of Justice (‘icj’) and of other international tribunals. In the cases concerning the Legality of Use of Force — a dispute which arose as a consequence of the military air strikes conducted by some nato member States against Serbia — objections of this kind were raised by several respondent States. They argued that, contrary to the applicant’s submissions, the acts complained of could not be attributed to the respondent States and were rather acts of nato or of the United Nations (‘un’). They also argued that the 1 In order to identify the correct respondent, it seems reasonable for a tribunal, in the absence of a lex specialis governing such issue, to rely on the rules of attribution set forth in the Articles on State Responsibility for Internationally Wrongful Acts (‘ars’) or in the Articles on the Responsibility of International Organizations (‘ario’). For a different view, see Mathias Forteau, ‘Régime générale de responsabilité ou lex specialis?’ (2013) 47 Revue Belge de Droit International p. 154.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_011

Litigating Member State Responsibility

179

icj could not in any event rule upon the respondents’ responsibility without having first determined the responsibility of those organizations.2 The Court did not rule on these objections. Similar objections were raised by the respondent State in the case concerning Application of the Interim Accord of 13 September 1995 (fyrm v. Greece). The dispute originated from the fact that the Former Yugoslav Republic of Macedonia (‘fyrm’) had not been invited to begin talks on accession to nato for reasons related to the absence of a mutually acceptable solution to the name issue between fyrm and Greece. The icj rejected Greece’s objections, finding that “the dispute does not concern, as contended by the Respondent, the conduct of nato or the member States of nato, but rather solely the conduct of the Respondent”.3 It also found that [t]he present case can be distinguished from the Monetary Gold case since the Respondent’s conduct can be assessed independently of nato’s decision, and the rights and obligations of nato and its member States other than Greece do not form the subject-matter of the decision of the Court on the merits of the case.4 Other examples can be found in the case law of the European Court of Human Rights (‘ECtHR’). In Banković and others v. Belgium and others, which also related to the military air strikes conducted by some nato member States against Serbia, France objected that “the bombardment was not imputable to the respondent States but to nato”.5 In addition, the respondent States argued that, in accordance to the Monetary Gold principle, the ECtHR could not decide the merits of the case “as it would be determining the rights and obligations of the United States, of Canada and of nato itself”.6 Both objections were also raised by the defendant States in Behrami v. France and Saramati v. France, 2 See e.g. Legality of Use of Force (Serbia and Montenegro v. Portugal), Preliminary Objections of the Portuguese Republic, 5 July 2000, pp. 38–44, available at: ; and Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections of the French Republic, 5 July 2000, pp. 26–34, available at: . 3 Application of the Interim Accord of 13 September 1995 (fyrm v. Greece), 5 December 2011, International Court of Justice, [2011] icj Reports p. 644, at p. 660, para. 42. 4 Ibid., para. 43. 5 Bankovic and others v. Belgium and 16 other States, 12 December 2001, European Court of Human Rights, App. No. 52207/99, para. 32. 6 Ibid. The Court did not address these objections. On the approach of the ECtHR in addressing objections based on the Monetary Gold principle, see Maarten den Heijer, ‘Procedural

180

Palchetti

Germany and Norway. The cases related to the conduct of national contingents acting within the framework of unmik and kfor. As is well known, in the latter cases the ECtHR did not address the objection based on the Monetary Gold principle as it found that the conduct complained of was to be attributed exclusively to the un.7 When considering the possibility of applying the Monetary Gold principle in relation to disputes brought against member States of an organization, a ­distinction must be drawn between different situations. First, the position of the member State may be strictly intertwined with that of the organization because the conduct complained of can be simultaneously attributed to both subjects. One may refer, for instance, to the case of a national contingent acting within the framework of a un peacekeeping operation and pursuing a conduct under circumstances which may justify dual attribution of that conduct to the sending State and to the un.8 Secondly, an organization may contribute to the wrongful conduct of a member State, for instance by aiding and assisting, or directing and controlling, the member in the commission of the wrongful conduct, or by adopting a decision binding a member State to pursue such conduct.9 Finally, there are situations in which a member State incurs responsi­ bility for conduct which is to be attributed to the organization. Reference is made here to the cases envisaged in Part Five of the International Law Commission’s Articles on the Responsibility of International Organizations (‘ario’). Aspects of Shared Responsibility in the European Court of Human Rights’ (2013) 4 Journal of International Dispute Settlement pp. 371–375. 7 Joined cases Behrami and Behrami v. France, 2 May 2007, European Court of Human Rights, App. No. 71412/01; and Saramati v. France, Germany and Norway, 2 May 2007, European Court of Human Rights, App. No. 78166/01, para. 67. 8 On the possibility of dual attribution of the conduct of a national contingent operating within the framework of a un peacekeeping operation, see Nuhanović v. Netherlands, 5 July 2011, Court of Appeal of The Hague, Oxford Reports on International Law in Domestic Courts p. 1742 (nl 2011); and Netherlands et al. v. Nuhanović, 6 September 2013, Supreme Court of the Netherlands (Hoge Raad), extracted in (2013) 60 Netherlands International Law Review pp. 447–485, with an introduction and commentary by Cedric Ryngaert, ibid., pp. 441–446). See Tom Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’ (2010) 51 Harvard International Law Review pp. 113–192; Paolo Palchetti, ‘The Allocation of Responsibility for Internationally Wrongful Acts Committed in the Course of Multinational Operations’ (2013) 95 International Review of the Red Cross pp. 739–741. 9 See the situations envisaged in Arts. 14–17 of the ario.

Litigating Member State Responsibility

181

In fact, only the latter situations appear to raise Monetary Gold issues. As we will see, in Certain Phosphate Lands in Nauru (Nauru v. Australia), the icj appears to have excluded that cases of multiple attribution of the same conduct can trigger the application of the Monetary Gold principle.10 As to the situation of an organization aiding or assisting, or directing and controlling, a member State in the commission of a wrongful act, there is no reason why an international tribunal should be prevented from exercising its jurisdiction over a dispute brought against the member State. In such cases, the tribunal does not need to determine the responsibility of the organization in order to assess the conduct of the member State.11 The same applies in the case of an organization adopting a decision that binds a member State to commit a wrongful act.12 The present chapter 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. Two main issues will be addressed. First, the different situations envisaged in Part Five of the ario will be examined with a view to determining those which may fall within the scope of application of the Monetary Gold principle. Then, it will be asked whether the fact that an international tribunal may not have jurisdiction to adjudicate disputes involving international organizations should not lead one to exclude that the principle applies when the absent third party is an organization. Before addressing these two issues, a brief overview of the case law concerning the scope of the Monetary Gold principle is in order. The focus will 10 11

12

See above, para. 2. See Hugh Thirlway, ‘Responsibility of International Organizations: What Role for the International Court of Justice?’, in M. Ragazzi (ed.), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Martinus Nijhoff, Leiden-Boston, 2013) pp. 351–360. According to Thirlway, the Monetary Gold principle operates only in the case, envisaged in Article 16 of the ario, in which an organization coerces a State to commit a wrongful act. In this case, it could be objected that the conduct by which the State implements the binding decision of the organization is to be attributed to the organization, and not to the implementing State. On the existence of a special rule of attribution to the effect that, when implementing binding acts of the European Union, organs of member States must be considered as acting as organs of the European Union, see International Law Commission, Draft Articles on the Responsibility of International Organizations, un Doc. a/66/10 (‘ario with Commentaries’), at pp. 168–170. See also Frank Hoffmeister, ‘Litigating against the European Union and its Member States: Who Responds under the ilc’s Draft Articles on the International Responsibility of International Organizations?’ (2010) 21(3) European Journal of International Law pp. 723–747.

182

Palchetti

be on the case law of the icj, since it has been mainly the icj that has both applied and defined the content of that principle.13 2

The Scope of the Monetary Gold Principle in the Case law of the icj

Much has already been written about the scope of the Monetary Gold principle, and it is not the purpose of the present chapter to offer a c­ omprehensive overview of the icj’s case law relating to such issue.14 It seems sufficient to identify some basic criteria for determining its scope. Two judgments appear particularly relevant to this end, namely those rendered in Monetary Gold Removed from Rome in 1943 and in Certain Phosphate Lands in Nauru. The first judgment set the basic conditions triggering the application of the ­principle, while the latter has restricted the operation of the principle by excluding from its scope a specific situation potentially affecting the rights of third parties. In Monetary Gold Removed from Rome in 1943 the icj established that it is prevented from exercising its jurisdiction when the legal interests of the third party “would not only be affected by a decision, but would form the very subject-matter of the decision”.15 This situation would arise when the icj could not decide the dispute submitted to it without adjudicating, as a preliminary matter, upon the international responsibility of a third party: or, to use the icj’s words in Certain Phosphate Lands in Nauru, when the determination of the responsibility of a third party is “a prerequisite for the determination of the

13

14

15

For an examination of the application of the Monetary Gold principle in the case law of other international tribunals, see the collection of articles on ‘Procedural Aspects of Shared Responsibility in International Adjudication’ (2013) 4 Journal of International Dispute Settlement pp. 274 et seq. See, among the most recent studies, Alexander Orakhelashvili, ‘The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: from Monetary Gold to East Timor and Beyond’ (2011) 2 Journal of International Dispute Settlement p. 373 et seq.; James Crawford, State Responsibility: The General Part (Cambridge University Press, Cambridge, 2013) pp. 655–669; Beatrice I. Bonafé, La Protezione degli Interessi di Stati Terzi davanti alla Corte Internazionale di Giustizia (Editoriale Scientifica, Napoli, 2014) pp. 89–101. Monetary Gold Removed from Rome in 1943 (Italy v. France; United Kingdom and United States of America), 15 June 1954, International Court of Justice, Preliminary Question, Judgment, [1954] icj Reports p. 19.

Litigating Member State Responsibility

183

responsibility” of the respondent State.16 In East Timor the icj refrained from exercising its jurisdiction, finding that “the effects of the judgment requested by Portugal would amount to a determination that Indonesia’s entry into and continued presence in East Timor are unlawful”.17 In Nauru, however, the icj distinguished the situation in which the determination of the responsibility of a third party is a prerequisite to the determination of the responsibility of the respondent State from that in which the responsibility of the third party might only be inferred ‘by implication’. The icj relied on this distinction in order to exclude the Monetary Gold principle’s application to a dispute brought against Australia for its role in the administration of Nauru. While Australia, New Zealand and the United Kingdom were jointly responsible for the administration of Nauru, the icj observed that “a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia”.18 While in practice it may not be easy to distinguish cases in which the legal interests of the third party would form the subject-matter of the decision from cases in which such interests would only be affected ‘by implication’,19 the icj’s position in Nauru permits the exclusion of certain situations from the scope of the Monetary Gold principle. In particular, Nauru clearly supports the view that the principle does not apply when the conduct complained of can be attributed simultaneously to the respondent State and to third States — either because the respondent was also acting on behalf of third parties, or because the conduct was taken by an individual or entity acting as a common organ of a plurality of States.20 In such cases, the determination of the responsibility of the respondent State may well have implications for the other States to which 16 17 18

19 20

Certain Phosphate Lands in Nauru (Nauru v. Australia), 26 June 1992, International Court of Justice, Preliminary Objections, Judgment, [1992] icj Reports p. 261, para. 55. East Timor (Portugal v. Australia), 30 June 1995, International Court of Justice, Preliminary Objections, Judgment, [1995] icj Reports p. 105. (Nauru v. Australia), supra note 16, para. 55. As an author put it, “the ‘indispensable third party’ doctrine does not apply if the implications for the legal position of the third party are merely a consequence of the judgment, rather than a logical premise of its operative part”: Serena Forlati, The International Court of Justice: An Arbitral Tribunal or a Judicial Body? (Springer, Heidelberg, 2014) p. 147. See Crawford, supra note 14, p. 660. See André Nollkaemper, ‘Issues of Shared Responsibility before the International Court of Justice’, in E. Rieter & H. de Waele (eds.), Evolving Principles of International Law: Studies in Honour of Karel C. Wellens (Martinus Nijhoff Publishers, Leiden-Boston, 2012) pp. 213–215.

184

Palchetti

the conduct is to be attributed; however, it does not require, as a preliminary matter, the determination of the responsibility of these States. Another exception to the operation of the Monetary Gold principle was recently set out by the icj in its judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). The icj clarified that the principle does not apply when the affected third party is a State which no longer exists.21 What is of interest for the purposes of the present chapter is the reason justifying this exception. According to the icj, the principle does not cover this situation since “such a State no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court”.22 This statement appears to establish a link between the scope of application of the Monetary Gold principle and the fact that a third party whose rights might be affected by the judgment is “incapable of giving or withholding consent to the jurisdiction”. This indication appears to be rele­ vant  when it comes to considering whether the Monetary Gold principle applies at all in cases in which the third party at issue is an international organization. I shall revert to this question later.23 3

Responsibility of a State in Connection with the Conduct of an ‘Absent’ Organization

Part v of the ario envisages a number of situations in which a State incurs responsibility in connection with a wrongful act of an international organization. Since a common feature of these situations is the fact that the State is implicated in the conduct of the organization, it can be asked whether this ‘implication’ does necessarily trigger the application of the Monetary Gold principle. To put it differently, the question is whether, should a case be brought against the State alone for its contribution to the wrongful conduct of the organization, the determination of the lawfulness of the conduct of the absent organization is necessarily ‘a prerequisite’ for the determination of the responsibility of the respondent State. To respond to this issue, a distinction must be drawn between these different situations depending on whether a breach by the organization of one of its 21 22

23

On this exception, see also Crawford, supra note 14, p. 666. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, International Court of Justice, [2015] icj Reports (no page yet assigned), para. 116. See below Section 4.

Litigating Member State Responsibility

185

obligations is required for international responsibility to arise for the State. Not all cases of derived responsibility envisaged in Part v of the ario require that the conduct attributable to the organization be internationally wrongful for that organization. Article 61, which refers to the case of a State circumventing one of its obligations by availing itself of the separate legal personality of an international organization of which it is a member, specifies that the circumventing State incurs responsibility irrespective of whether the conduct is internationally wrongful for the organization.24 Since it is not required that the conduct be internationally wrongful for the organization as a prerequisite for determining the responsibility of the State, the Monetary Gold principle does not seem to cover this situation.25 Should a case be brought against the m ­ ember State for having ‘circumvented’ its obligations by causing the organization to commit a certain act, the tribunal would limit itself to establishing whether the pertinent conduct is attributable to the organization. It does not have to determine whether such conduct, in addition to the responsibility of the member State, also gives rise to the responsibility of the organization. One may refer to the case of a dispute brought against a State party to the Treaty on the NonProliferation of Nuclear Weapons, which allegedly circumvented its obligation by establishing an international organization that acquired nuclear weapons.26 The tribunal would only have to ascertain whether the organization acquired nuclear weapons without having to determine whether this gave rise to a breach by the organization of its obligations. The case envisaged in Article 60 of the ario — a State coercing an international organization to commit an internationally wrongful act — is more problematic. One the one hand, the responsibility of the coercing State derives from an internationally wrongful act committed by the coerced organization. On the other hand, in most cases such conduct will not give rise to the responsibility of the coerced organization as the wrongfulness of its conduct will be precluded by the fact that the organization acted under coercion. Under such circumstances, it could be suggested that the Monetary Gold principle does not apply since the determination of the responsibility of the coercing State

24 25

26

Art. 61, para. 2, provides that “[p]aragraph 1 applies whether or not the act in question is internationally wrongful for the international organization”. For a different view, see Jean d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 International Organi­ zations Law Review p. 117. For this example, see Giorgio Gaja, Fourth Report on the Responsibility of International Organizations, un Doc. a/cn.4/564/Add.1, p. 8, para. 68.

186

Palchetti

does not require the prior determination of the responsibility of the coerced organization.27 The scenario changes significantly in those cases in which the derived responsibility of the State presupposes the commission of an internationally wrongful act by the organization. Such condition is expressly required by Articles 58 and 59 of the ario, which refer, respectively, to the cases of a State aiding or assisting, or directing and controlling an international organization in the commission of a wrongful act.28 In these two cases, the determination of the responsibility of the organization appears to be a precondition to the determination of the responsibility of the member State. For instance, when a case is brought against a State which, by knowingly financing the activity of an international organization, facilitates the commission of an international wrongful act by that organization, the tribunal will have first to determine whether the organization committed the wrongful act in order to determine the ‘derived’ responsibility of the State. This point was recognised by the International Law Commission (‘ilc’) in its commentary to Article 16 of the Articles on State Responsibility for Internationally Wrongful Acts (‘ars’). The ilc observed that the Monetary Gold principle “may well apply to cases under article 16, since it is of the essence of the responsibility of the aiding or assisting State that the aided or assisted State itself committed an internationally wrongful act”.29 Obviously, the same conclusion applies to the corresponding provisions of the ario. In its Commentary, the ilc also noted that “the Monetary Gold principle may not be a barrier to judicial proceedings in every case”.30 However, it failed to further specify the situations in which the principle would not apply. An example was given by the Special Rapporteur, Crawford, who, relying on a passage of the icj’s Judgment in East Timor, referred to the case “where the responsibility of the assisted State has already been established by a competent international body”.31 While other exceptions 27 28 29

30 31

See however Nollkaemper, supra note 20, p. 211. Both provisions specify that the conduct attributable to the organization must be internationally wrongful for that organization. See ario with Commentaries, supra note 12, p. 158. As extracted in [2001] 2 Yearbook of the International Law Commission (Part. Two), p. 67, para. 11. According to Art. 16 of the ars, “a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.” Ibid. James Crawford, Second Report on State Responsibility (17 March, 1 and 30 April, 19 July 1999), un Doc. a/cn.4/498 and Add.1–4, p. 49. On this issue, see André Nollkaemper,

Litigating Member State Responsibility

187

may perhaps be envisaged, it remains however that, in principle, disputes arising between an injured State and a State aiding or assisting, or directing and controlling, an organization in the commission of a wrongful act appear to fall squarely within the scope of the principle.32 The same applies to the situation envisaged under Article 62 of the ario, namely when a member State accepts responsibility for a wrongful act of the organization, or when it has led the injured party to rely on its responsibility. In this case, the determination of the responsibility of the organization is a prerequisite for the determination of the responsibility of the member. The prejudicial effect of a judicial finding appears to be evident. The more so since, as the ilc put it, even when the member accepts responsibility, the “international responsibility of the international organization of which the State is a member remains unaffected”.33 4

The Applicability of the Monetary Gold Principle to International Organizations

So far, the application of the Monetary Gold principle to situations in which member States can be held responsible for the conduct of the organization has been assessed on the assumption that the principle should apply not only when the absent third party is a State but also when the third party is an international organization. However, the position of third States differs from that of third international organizations in one fundamental respect. Before most international tribunals, only States have the capacity to be a party to a case. Article 34 (1) of the icj Statute is the most obvious example, but it is far from being an isolated case. One may ask whether the fact that an international tribunal does not have jurisdiction over international organizations has an impact over the scope of application of the Monetary Gold principle. In particular, it may be asked whether this circumstance should lead one to exclude

32

33

‘Concerted Adjudication in Cases of Shared Responsibility’, (2014) shares Research Paper No. 40, pp. 1–37. For the view that “[w]hether or not the wrongful act of the main actor will form the very subject matter of the case or whether a determination of its wrongfulness would only affect the legal interests of the third State not present in the proceedings has to be determined in light of the individual case”, see Helmut Ph. Aust, Complicity and the Law of State Responsibility (Cambridge University Press, Cambridge, 2011) p. 306. However, apart from a reference to the exception mentioned in Crawford’s report (supra note 31), this author does not clarify when a determination of the wrongfulness of the conduct of the main actor will only have the effect of affecting the interest of the third State. ario with Commentaries, supra note 12, p. 166.

188

Palchetti

that the principle applies at all to situations in which the absent third party is an international organization. The icj’s case law does not provide a clear-cut response to this question. So far, the principle has been applied only in relation to third States. According to the icj, its main purpose is to ensure respect of States’ consent to the Court’s jurisdiction. Most recently, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), it repeated that its basic rationale is to protect “the right of a State not party to the proceedings not to have the Court rule upon its conduct without its consent”.34 As we have already noted, in that case the Court relied on the fact that a State which no longer exists is “incapable of giving or withholding consent to the jurisdiction of the Court” in order to justify the conclusion that the Monetary Gold principle could not be applied to protect the rights of such State. All these elements appear to support the view that the principle does not apply at all in respect to international organizations. However, it must be acknowledged that the icj has never ruled out the possibility of applying the principle when the indispensable party is an international organization. In Application of the Interim Accord of 13 September 1995 (fyrm v. Greece), it excluded the applicability of the Monetary Gold principle in relation to nato only because it found that “the rights and obligations of nato and its member States other than Greece do not form the subject-matter of the decision of the Court on the merits of the case”.35 It could be said that, by relying on this reason, the Court indirectly admitted the possibility of applying the principle in respect to nato. In the absence of clear indications in the icj’s case law, one might seek to determine the scope of application ratione personae of the principle by considering its rationale. However, even if one approaches the question from this perspective, the response is hardly unequivocal.36 As has been recently observed by the arbitral tribunal in Chevron and Texaco v. Ecuador, “the Monetary Gold principle draws its strength from, and implements, a number of distinct and fundamental principles of international law”.37 On the one hand, 34

35 36 37

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, International Court of Justice, [2015] icj Reports (no page yet assigned), para. 116. Application of the Interim Accord of 13 September 1995 (fyrm v. Greece), 5 December 2011, International Court of Justice, [2011] icj Reports p. 644, at p. 660, para. 43. See Martins Paparinskis, ‘Procedural Aspects of Shared Responsibility in the International Court of Justice’ (2013) 4 Journal of International Dispute Settlement p. 315. Chevron Corporation (u.s.a.) and Texaco Petroleum Company (u.s.a.) v. The Republic of Ecuador, 27 February 2012, Permanent Court of Arbitration, Third Interim Award on Jurisdiction and Admissibility, Case 2009–23, para. 4.61. See Freya Baetens, ‘Procedural

Litigating Member State Responsibility

189

“it gives effect to the principle that no international tribunal may exercise jurisdiction over a State without the consent of that State”.38 On the other, it implements the ‘due process’ principle, in that it addresses the “concern that the rights of States should not be ruled upon unless they are properly before the Court and are given a full opportunity to present their case”.39 If one places emphasis on the latter aspect, there would be no reason for not applying the principle when the interests of an absent organization form the very subject matter of the dispute. In a ‘due process’ perspective, the fact that, under Article 34 of the icj Statute, international organizations are incapable to be parties to a case would be irrelevant: what is at issue is the protection of the legal position of the third party, irrespective of whether it is capable of giving or withholding consent to the jurisdiction of the icj. In this perspective, the legal position of international organizations should be protected in the same way as that of States and the fact that international organizations are precluded the possibility of becoming parties to a case simply reinforces the need to extend to organizations the protection provided by the principle.40 A narrower interpretation of the scope of the principle would instead be justified if one considers that its purpose is to give effect to the principle of consent. Since this principle, as embodied in the Statute, only applies in relation to States, there would be no reason for extending the Monetary Gold principle to subjects which, under the Statute, are not entitled to give their consent to the Court’s jurisdiction. The fact that the icj does not have jurisdiction over international organizations would be a sufficient reason to conclude that the principle only concerns States.41 Issues Relating to Shared Responsibility in Arbitral Proceedings’ (2013) 4 Journal of International Dispute Settlement p. 319, at pp. 338–340. 38 Ibid. 39 Ibid., para. 4.63. 40 If one follows this approach, the principle should also apply in cases in which the absent organization is the un. It has been held that, in disputes before the icj, the principle does not apply to the un “since the Court is one of its own organs, it must be deemed to be debarred from arguing that no judicial determination on its rights and obligations may be carried out in its absence”: see Christian Tomuschat, ‘Article 36’, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed.) (Oxford University Press, Oxford, 2012) p. 649. See also Robert Kolb, The International Court of Justice (Hart, Oxford and Portland, 2013) p. 575. However, despite it being an organ of the un, the icj is clearly independent of the organization when exercising its judicial function. 41 Nollkaemper, supra note 20, pp. 216–218; Kolb, supra note 40, p. 575; Thirlway, supra note 11, pp. 357–358; Thomas Bruha, ‘The Kosovo War before the International Court of

190

Palchetti

On balance, this narrow reading of the Monetary Gold principle appears to be preferable. This is so not only because, so far, the icj has mainly relied on the need to protect the principle of consent for justifying the application of the principle but also because important policy considerations militate in favour of such an interpretation.42 The application of the principle to international organizations would have the effect of significantly limiting the role of international tribunals: not only do they generally lack jurisdiction over disputes between international organizations or between a State and an international organization, but they would also be prevented from exercising jurisdiction over disputes between States which directly involve the legal interests of an absent international organization. Moreover, it has been observed that, should one extend the principle to international organizations, there would be little reason for not extending the same protection to the interests of other subjects, including individuals, when their legal position forms the very subject-matter of the decision.43 5

Concluding Remarks

In its Commentary to the ario, the ilc noted that there is only limited practice concerning the responsibility of international organizations. It explained it by reference, inter alia, to “the limited use of procedures for third-party settlement of disputes to which international organizations are parties”.44 The fact that international organizations do not have locus standi before several international courts and tribunals renders it difficult to implement their responsibility through recourse to judicial mechanisms for settling disputes. While the ‘exclusion’ of international organizations from a significant number of international courts and tribunals may lead injured parties to seek redress from member States by relying on their involvement in the conduct of the organization, the possible application of the Monetary Gold principle may still prevent the court or tribunal from exercising its jurisdiction, thereby further Justice — A Preliminary Appraisal’, in C. Tomuschat (ed.), Kosovo and the International Community. A Legal Assessment (Kluwer, The Hague, 2002) pp. 313–314. 42 All the authors referred to supra note 41 gave great weight to policy considerations in justifying the conclusion that the principle does not apply to absent international organizations. 43 Thirlway, supra note 11, p. 357; Nollkaemper, supra note 31, p. 11. 44 ario with Commentaries, supra note 12, p. 70. See also Pierre Klein, ‘Les articles sur la responsabilité des organizations internationales: quel bilan tirer des travaux de la cdi?’ (2012) 58 Annuaire Français de Droit International p. 27.

Litigating Member State Responsibility

191

reducing the possibility of judicial bodies ruling upon disputes arising, directly or indirectly, from the conduct of an international organization. If the ‘exclusion’ of international organizations from the jurisdiction of several international courts can be regarded as an “extraordinary anomaly”,45 it would be important not to amplify that anomaly by applying the Monetary Gold principle in cases in which the absent third party is an international organization. The rationale behind the principle appears to justify a narrow interpretation of its scope of application; policy considerations strongly recommend it. No doubt, such a narrow interpretation would not be without a cost for international organizations, since it entails the possibility for a tribunal to rule upon the rights of an international organization without that organization being given the opportunity to present its case. For this reason, it is important that the absence of any procedural barrier protecting the interests of an absent international organization could be ‘compensated’ by offering to that organization the possibility of defending its interests by submitting observations to the tribunal. In principle, international organizations should be given the possibility to present their views in all cases when the decision of the tribunal may risk affecting their legal interests.46 This due process requirement becomes compelling when the legal position of an absent organization constitutes the very subject matter of the dispute. The statute of many tribunals appear to allow for this possibility. Under the European Convention on Human Rights, third parties are admitted to submit written comments and to participate in the oral pleadings.47 International organizations have frequently made use of this procedural means to defend their position before the ECtHR. In Behrami v. France and Saramati v. France, Germany and Norway, the un intervened in the proceedings to defend the view that acts of the kfor could not be attributed to the un.48 45

Robert Jennings, ‘The International Court of Justice at Fifty’ (1995) 89 American Journal of International Law p. 504. 46 The icj appears to have given relevance to the question relating to the participation of international organizations when, in 2005, it amended its Rules in order to permit international organizations to submit observations “[w]henever the construction of a convention to which a public international organization is a party may be in question in a case before the Court”. See Art. 43, para. 2 of the icj’s Rules. 47 Art. 44 (3) (a) of the Rules of the ECtHR provides that “the President of the Chamber may, in the interests of the proper administration of justice, as provided in Article 36 § 2 of the Convention, invite, or grant leave to, any Contracting Party which is not a party to the proceedings, or any person concerned who is not the applicant, to submit written comments or, in exceptional cases, to take part in a hearing”. 48 Also the European Union has frequently intervened before the ECtHR. See Andrew Clapham, ‘The European Union before the European Court of Human Rights’, in L. B. de

192

Palchetti

The Statute of the icj also provides ways by which international organizations can be involved in a case. Article 34, para. 2, of the Statute provides that “[t]he Court … may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative”. The provision refers to “information”, and not to “arguments” or “views”. This reflects the fact that this form of participation was not originally conceived as a mechanism for allowing organizations to defend their legal position before the Court.49 However, this possibility is not incompatible with the text of the provision. Allowing greater participation of international organizations in the proceedings appears to be an acceptable alternative to the protection offered by the application of the Monetary Gold principle. This may allow reconciling, at least to a certain extent, the different interests at stake, namely, the interests of the parties that the tribunal exercises its jurisdiction and those of the organization that its position would not be affected without having the possibility to present its views.

49

Chazournes, C. Romano and R. Mackenzie (eds.), International Organizations and International Dispute Settlement: Trends and Prospects (Transnational Publishers, New York, 2002) pp. 73–89. See Christine Chinkin and Ruth Mackenzie, ‘Intergovernmental Organizations as “Friends of the Court”’, in de Chazournes, Romano and Mackenzie (eds.), supra note 48, pp. 139–140. See also Pierre-Marie Dupuy, ‘Article 34’, in Zimmermann, Tomuschat and Oellers-Frahm (eds.), supra note 40, p. 592 et seq.

chapter 11

The Invocation of Member State Responsibility before National and International Courts Rekindling Old Utopias Francesco Messineo 1

Introduction: The Law may be against You

More than one hundred years ago, when international lawyers were still in the habit of dreaming big dreams, Hans Wehberg spoke of the establishment of an International Court of Justice in terms which most would now classify as hopelessly utopian. He argued that the following marks [should be] characteristic of an international court of justice: 1) no diplomats, but judges by profession; 2) the exclusion of national judges; 3) a truly permanent court of justice; 4) the exclusion of members appointed by the contending parties and above all by the states; 5) a direct right of action; [and] 6) the creation of a right of appeal.1 Of this vision for the compulsory settlement of international disputes, one of the most striking elements is the idea of a direct right of action, uncoupled from the consent of the respondent States. There would be no need to even * The author is indebted to Jennifer Cavenagh, Jessica Howley and to the participants of the Leuven Centre for Global Governance Studies Conference on ‘Member State Responsibility and International Organizations: Recent Developments’ (3–4 December 2014) for their kind comments on an earlier version of this chapter. The opinions expressed here are personal and do not represent the views of any institution or international organization with which the author might be associated. 1 Hans Wehberg, The Problem of an International Court of Justice, Vol. ii of The Work of the Hague (Clarendon Press, Oxford, 1918) p. 156. The book is the English translation of Das Problem eines internationalen Staatengerichtshofes, Vol. ii von Das Werk vom Haag (Duncker & Humblot, München; Leipzig, 1912).

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_012

194

Messineo

consider complex matters of invocation, erga omnes obligations, or standing in a multilateral treaty context: in Wehberg’s view, as long as ‘the law’ is breached, a remedy must exist for injured parties. Reality has not kept pace with dreams. States not only eschewed permanent compulsory dispute settlement with respect to inter-State disputes, but also created more and more international organizations: complex machineries of collective action which, despite often being subjects of international law  in  their own right, are somewhat immune from most of international law’s (already scant) adjudicatory processes. Even leaving aside the dearth of remedies against international organizations themselves, obtaining redress from States for harm caused by international organizations is no easy affair. First, there is uncertainty concerning which rules establish obligations that are also binding on international organizations. Second, it is unclear under what circumstances a wrongful act committed by an organization can in fact engage the responsibility of its member States. This special forum is devoted to these two complex questions. In very general terms, we might recall Brownlie’s ‘transparent’ model for ‘piercing the veil’ of international organizations and making States responsible;2 the opposite position by Amerasinghe, who is wary of such attempts at attributing liability;3 and the nuanced codification proposals adopted both by the Institut de Droit International4 and by the International Law Commission (‘ilc’), which reached the conclusion that no responsibility automatically flows from membership of an international organization, although State responsibility may still be established under certain conditions.5 In general, literature on this topic is abundant and judicial precedent perhaps inconclusive, starting from the multiple pronouncements dealing with the International Tin Council affair.6 2 Ian Brownlie, ‘The Responsibility of States for the Acts of International Organizations’, in M. Ragazzi (ed.) International Responsibility Today: Essays in Memory of Oscar Schachter (Martinus Nijhoff, Leiden, Boston, 2005) pp. 355–362. 3 Chittharanjan Felix Amerasinghe, ‘Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent’ (1991) 85 American Journal of International Law pp. 259–280. 4 See Rosalyn Higgins, ‘The Legal Consequences for Member States of the Non-Fulfilment by International Obligations of their Obligations towards Third Parties’ (1995) 66-I Annuaire de l’Institut de Droit International pp. 251–293, as well as the corresponding ‘Resolution ii’ of the Institut at Vol. 66–ii, p. 445. 5 See International Law Commission, Articles on the Responsibility of International Organi­ zations, un Doc. a/res/66/100 (2011), Article 62, as well as the Commentaries thereto (‘ario and Commentaries’). 6 A very useful general overview of the question and relevant judicial practice from International Tin Council onwards can be found in Giulia Pinzauti, ‘It Takes Two to Tango:

The Invocation of Member State Responsibility

195

Rather than taking a firm view on this vexed question, this chapter starts from the assumption that, at least in certain situations, States will be deemed to be internationally responsible in connection with an internationally wrongful act committed by an international organization. These situations may well coincide with those envisaged in Articles 58 to 62 of the 2011 Articles on the Responsibility of International Organizations (‘ario’), but I do not wish to go any further on this point. In fact, the difficulties encountered by the ilc in codifying these rules are inextricably linked with the practical difficulties a victim of harm would face when invoking responsibility, and such uncertainties as to which law applies constitute the first major obstacle for anyone seeking redress. However, these difficulties do not mean that avenues of action will always be precluded.7 For instance, there is no doubt that the international responsibility of a State may be invoked with reference to the State’s own acts or omissions, even if they occurred in the context of the activities of an international organization: this much has recently been clarified by the International Court of Justice in the Interim Accord case,8 and by the ilc Commentaries to

States' Conferral of Powers on International Organizations and Its Implications for the Responsibility of the Organization and Its Members’, in D. Sarooshi (ed.) Remedies and Responsibility for the Actions of International Organizations: Hague Academy of International Law (Brill; Nihoff, The Hague, 2014) pp. 113–146; and in José Manuel Cortes Martin, ‘The Responsibility of Members Due to Wrongful Acts of International Organizations’ (2013) 12 Chinese Journal of International Law pp. 679–721; see also Catherine Bröllmann, The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Hart, Oxford, 2007). 7 In addition to the ilc codification and preparatory work, see generally International Law Association, ‘Berlin Conference (2004): Accountability of International Organizations: Final Report’, May 2004, pp. 26–31, available at: , 1 June 2015. 8 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), 5 December 2011, International Court of Justice, [2011] icj Reports p. 644, at pp. 659–661. One of the objections to the Court’s jurisdiction was that the conduct complained of by Macedonia was not attributable just to Greece because “the decision to defer the invitation to the Applicant to join the Organization was a collective decision taken by nato ‘unanimously’ at the Bucharest Summit, and not an individual or autonomous decision by the Respondent” (para. 39). The Court rejected this construction by clarifying that the conduct lamented by Macedonia was Greece’s own, not nato’s: the  Application referred “specifically to the Respondent’s conduct, irrespective of the consequences it may have on the actual final decision of a given organization as to the  Applicant’s membership”, and included conduct antecedent to nato’s decision (para. 42).

196

Messineo

the ario,9 as well as, indirectly, by the wto panel in the Airbus case.10 Assuming that a victim of harm caused by the wrongful act of an international organization might theoretically have a valid claim against one or more States, this chapter will focus instead on how such a victim may invoke responsibility, and what obstacles he or she is likely to encounter.11 In this regard, I will advance three simple propositions. First, as we have just seen, if you are the victim of harm in the context of international organization action, the law may be against you as a matter of substance, in the sense that your potential claim against a member State would fail on the merits. Second, even if the law were in your favour, it may be difficult to find the right forum: in Section 2, I will consider the shortage of suitable forums in light of procedural restrictions. Third, even if you did find a forum, there may be other difficulties: in the concluding Section 3, I will consider other possible obstacles, such as legal costs, and I will briefly advocate for the rekindling of old utopias in matters of international adjudication. 9 10

11

ario with Commentaries, supra note 5, Art. 58 ario, supra note 6, para. 5. Measures Affecting Trade in Large Civil Aircraft (United States v. European Communities, France, Germany, Spain, and United Kingdom), 30 June 2010, wto Dispute Settlement Body, Panel Report, wt/ds316/r, paras. 7.169–7.177. One question before the Panel was whether the international organization was the only proper respondent in the case, as the eu Commission maintained, or if the four Member States of the European Union whose conduct was also complained of by the United States should be considered co-respondents. The Panel determined that all five were respondents because the us had started proceedings “asserting claims concerning, inter alia, alleged subsidies provided by the European Communities and by the governments of each of four ec Member States, France, Germany, Spain, and the United Kingdom”; and “each of these five is, in its own right, a Member of the wto, with all the rights and obligations pertaining to such membership, including the obligation to respond to claims made against it by another wto Member”. In other words, regardless of any shared responsibility issue, each Member State was certainly responsible in their own right for their own acts. These obstacles partly overlap with those which may be encountered when invoking a State’s responsibility for its own conduct (whether in the context of the activity of international organizations or otherwise). The analysis here focuses solely on acts which are (also) attributable to an international organization and on the responsibility engaged by a State because of membership to the organization, rather than because of its own act or omission. The present author has addressed elsewhere the question of potential dual attribution of the same internationally wrongful act to more than one state and/or international organization at the same time: see Francesco Messineo, ‘Attribution of conduct’, in A. Nollkaemper and I. Plakokefalos (eds.), Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (Cambridge University Press, Cambridge, 2014) pp. 60–97.

The Invocation of Member State Responsibility

2

197

Even if the Law were in Your Favour, It would be Difficult to Find the Right Forum

A The Injured Party is an Individual (or a Company) Acting Directly (1) In General The first hurdle to overcome for a victim seeking redress is finding the right forum. In this regard, we must distinguish between situations in which the injured party is an individual (or a company) from situations in which the injured party is a State (or international organization). Indeed, an individual may be acting directly (as set out in this Section 2.A). If so, he or she might attempt to bring his or her claim before domestic courts of the State itself (see Section 2.A(2)), before domestic courts of other States (see Section 2.A(3)), or before international courts and tribunals (see Section  2.A(4)). However, an individual’s claim may also be espoused by his or her State of nationality (see section 2.B), or a State may act in its own right (see section 2.C), or a third State might be acting in application of erga omnes or erga omnes partes principles (see section 2.D). (2) Domestic Courts of the Respondent State If an individual or company is acting directly, the first option is to attempt to sue the respondent State before its own courts. In general terms, the obstacles in this regard arise from domestic constitutional and administrative law. A certain amount of deference is usually shown by Courts towards their governments, and such deference and the limits of judicial review of governmental action are likely to be particularly high in the case of action in connection with an international organization, because international cooperation is often shielded behind constitutional provisions allowing more leeway. For example, Article 11 of the Italian Constitution is one such ‘shield’, in that it would allow domestic Italian courts to reduce the breadth of judicial scrutiny of government conduct undertaken in application of eu law.12 In one of its recent pronouncements on the matter, the Italian Constitutional Court recalled that “by virtue of the limitations of sovereignty allowed by Article 11 of the Constitution, this Court has acknowledged the scope and many implications of the prevalence of European Union law over constitutional provisions (judgment 126 of 1996)”; the only exception are those situations where eu law is in contrast with 12

The provision reads as follows: “Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organizations furthering such ends”.

198

Messineo

“fundamental principles of the State’s constitutional order or inalienable human rights (judgment 170 of 1984)”.13 The concept of equivalent protection, arising from the practice of the European Court of Human Rights, could also lead some domestic courts to exercise greater deference towards international organizations by virtue of similar presumptions as to a given international organization protecting rights in a manner broadly equivalent to domestic constitutional law.14 The Italian approach is just one among many. A comparative study would be required to assess the many different filters and types of limits which exist in this regard across domestic legal orders; and major scholarly endeavours such as the Global Administrative Law project have tackled the complexities involved in this area of the law.15 Indeed, the cases of successful invocation of member State responsibility before domestic courts are few and far between. One of the best known is the 2013 Nuhanović case, in which the Dutch Supreme Court affirmed the principle that an individual State may be held responsible for the conduct of its troops put at the disposal of the un during a peace support operation under the auspices of the un.16 In particular, the Court held that the same potentially wrongful conduct may in principle be attributed both to the un and to a member State, so that, regardless of any question of un immunity before domestic courts, a remedy would be available against the Dutch government, which is not immune before Dutch Courts. But it is too early to see if other domestic courts around the world will follow suit: before Nuhanović, there had only been a few examples of success, such as Turkish17 13

Constitutional Legitimacy of Articles 18(1)(r) and 19(1)(c) of Law n. 69 of 22 April 2005, 21 June 2010, Italian Constitutional Court, No. 227/2010, para. 6 of the ‘Considerato in diritto’ part. 14 See Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland, 30 June 2005, European Court of Human Rights, Grand Chamber, App. No. 45036/98, (2006) 42 European Human Rights Reports p. 1, paras. 152–157. 15 For an overview, see Nico Krisch and Benedict Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’ (2006) 17 European Journal of International Law pp. 1–13. 16 The Netherlands v. Hasan Nuhanović, 6 September 2013, Dutch Supreme Court, No. 12/03324. See also Hasan Nuhanović v. The Netherlands, 5 July 2011, Court of Appeal in The Hague, ljn: br5388, ljn: R5388, ildc 1742 (nl 2011); and Hasan Nuhanović v. The Netherlands, 10 September 2008, District Court in the Hague, ljn: bf0181, No. 265615. 17 uss Saratoga v. tcg Muavenet Case, Akan and ors v. Turkish Ministry of Defence, 22 February 1995, Turkish Supreme Military Administrative Court, Final Award on Compensation, No. K 1995/1095, ildc 1731 (tr 1995). The Court held Turkey responsible for an incident during a joint us-Turkish nato exercise.

The Invocation of Member State Responsibility

199

and Belgian18 courts granting remedies against their respective governments for nato acts, and the British House of Lords granting a remedy against the uk  government for activity of British soldiers acting under un auspices in  Cyprus  in the late sixties.19 However, subsequent attempts in the uk failed,20 and other legal orders, such as the German one, have flatly refused claims of this type. In a first instance judgment of 2012, which was related to the complex Kunduz case, it was affirmed that German domestic courts had no jurisdiction over the killing of individuals by German forces operating with nato in Afghanistan.21 Indeed, the difficulties do not only arise because of potential attribution issues: another major obstacle is how the domestic legal system conceives of its role vis-á-vis responsibility for internationally wrongful acts, itself a function of how international law is treated under domestic law. For instance, in the Varvarin Bridge case, thirty-five former Yugoslavian citizens had brought an action against Germany before German courts lamenting breaches of international humanitarian law by nato, and their claim was refused inter alia on the dubious grounds that the Articles on State Responsibility (‘asr’) did not envisage individual claims, and that therefore only States could bring claims of international responsibility.22 Though perhaps misconceived,23 the latter case is not isolated. From a somewhat similar perspective, the highest administrative Court in Italy, the Council of State, denied the claim of an Italian company, Di Lenardo, which was requesting a judicial review of the Italian implementation of an eu customs Regulation (Commission Regulation (ec) 896/2001 of 7 18 19 20 21

22

23

nv vb v. Belgian Bureau of Car Insurers and Belgian State, Minister of Defence, 10 March 2005, Belgian Police Court, (2008) 72(16) Rechtsk Weekbl 679, ildc 1504 (be 2005). Attorney-General v. Nissan, 11 February 1969, uk House of Lords, [1969] ukhl 3, [1970] 1 ac p. 179. See R. (Al-Jedda) v. Secretary of State for Defence, 12 December 2007, uk House of Lords, [2007] ukhl 58, [2008] 1 ac p. 332. Anonymous v. German Federal Government, 9 February 2012, German Administrative Court (First Instance), 26 K 5534/10, ildc 1858 (de 2012), para. 65. In an airstrike ordered by a German colonel in 2009 in the Kunduz River in Afghanistan, a number of civilians were killed. On the related German domestic law developments, see Elisabeth V. Henn, ‘The Development of German Jurisprudence on Individual Compensation for Victims of Armed Conflicts: The Kunduz Case’ (2014) 12 Journal of International Criminal Justice pp. 615–637. Varvarin Bridge Case, 35 citizens of the Former Federal Republic of Yugoslavia v. Germany, 2 November 2006, German Federal Supreme Court, iii zr 190/05, bghz 166, ildc 887 (de 2006). See ibid. Helmut Aust’s commentary to the case in the International Law in Domestic Courts database, at ildc 887 (de 2006).

200

Messineo

May 2001). The Court held that it was not competent to decide on the breach of World Trade Organization (‘wto’) law by the Italian State and the eu, nor should the Italian constitutional court be seized of the matter, inter alia because rules concerning state responsibility could not autonomously be invoked by citizens before domestic jurisdictions.24 The most radical form of this type of obstacle is the doctrine of non-­ justiciability of the international legality of the conduct of a State before its own courts because of the indivisibility of the State from the point of view of public international law. The ilc underlined that, in matters of international responsibility, “the State is treated as a unity, consistent with its recognition as a single legal person in international law”.25 According to some authors, including Roger O’Keefe, this has far-reaching implications before domestic legal orders such as that of the uk: “[I]n those situations where … international law imposes an obligation, only the United Kingdom as such, and not the Crown or Parliament or the courts, is bound by it”, and therefore no action would exist before domestic courts of the uk concerning the legality of uk acts under obligations of the uk as a whole.26 In other words, certain domestic legal systems do not contemplate breaches of international (rather than domestic or constitutional) obligations by the State because they conceive of international obligations as only operating at the inter-State level, where the State is considered as a whole and not split in its branches of government. This could be seen as a rather extreme consequence of dualism in the relationship between international and domestic law. These many types of filter often go back to the old adage that international responsibility operates only at the inter-State level and no rights or obligations exist towards citizens and individual companies. Although international law has since recognized the possibility and importance of individual claims, and the question of indivisibility of the State under international law need no longer necessarily be a bar in every domestic law context, these are just examples  of the many possible conceptual and legal obstacles facing individual

24

25

26

Di Lenardo Adriano Srl and Dilexport Srl v. Ministry of Productive Activities, 9 August 2011, Italian Council of State, (2011) 21 Italian Yearbook of International Law 382, ildc 1957 (it 2011), para. 7.4. International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts (2001), un Doc. a/res/56/83, as well as the Commentaries thereto (‘ars and Commentaries’), Art. 2 and para. 6 of the accompanying commentary. Roger O’Keefe, ‘The Doctrine of Incorporation Revisited’ (2008) 79 British Year Book of International Law pp. 7–85, at pp. 56–57.

The Invocation of Member State Responsibility

201

claimants seeking to invoke their government’s responsibility as a member State of an international organization. (3) Domestic Courts of Another State If the domestic courts of the respondent State are not amenable to such an action, a victim could also try to sue that government before another domestic court, perhaps the one of his or her nationality or residence. The claimant will, however, face the often insurmountable obstacles posed by the rules on State immunity.27 Customary international law provides that a State is immune from the jurisdiction of the domestic courts of another State, barring certain specified exceptions (concerning, for example, acta jure gestionis). This has recently been vigorously reaffirmed by the International Court of Justice in Germany v. Italy.28 As the conflict of paradigms of State immunity underlying that judgment has been the object of considerable scholarly analysis, there is no point in rehashing it here.29 Suffice it to say that, in the case of breaches of human rights or international humanitarian law, certain domestic courts, including the Italian Supreme Court of Cassation,30 had affirmed that they would not uphold state immunity; and that others, such as the uk House of Lords, had done precisely the opposite.31 The icj followed the ‘British’ approach. In addition, in Jones v. United Kingdom, the European Court of Human Rights confirmed the view adopted by the icj and by the uk House of Lords.32 Against this background, the recent judgment by the Italian Constitutional Court of 27

28 29

30

31 32

See generally Hazel Fox and Philippa Webb, The Law of State Immunity (3rd ed.) (Oxford University Press, Oxford, 2013); Roger O'Keefe and Christian J. Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University Press, Oxford, 2013). Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 3 February 2012, International Court of Justice, [2012] icj Reports p. 99. Compare e.g. Lorna MacGregor, ‘State Immunity and Human Rights: Is there a Future after Germany v. Italy?’ (2013) 11 Journal of International Criminal Justice pp. 125–145 (and  the other contribution to the same symposium on that issue of the Journal of International Criminal Justice); and Roger O’Keefe, ‘State Immunity and Human Rights: Heads and Walls, Hearts and Minds’ (2011) 44 Vanderbilt Journal of Transnational Law pp. 999–1045. Ferrini contro Repubblica Federale di Germania (Ferrini v. Germany), 11 March 2004, Italian Supreme Court of Cassation, No. 5044/04 (civile), (2004) 87 Rivista di Diritto Internazionale p. 539. Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia and another, 14 June 2006, uk House of Lords, [2006] ukhl 26, [2007] 1 ac p. 270. Jones v. United Kingdom, 14 January 2014, European Court of Human Rights, App. No. 34356/06 and 40528/06, (2014) 59 European Human Rights Reports p. 1.

202

Messineo

22 October 2014, which essentially rejected the effects of state immunity rules in the Italian domestic legal order insofar as human rights breaches were concerned, opened a new and interesting form of international jurisdictional conflict.33 The debate is open.34 For our purposes, the point is that rules on state immunity will in most cases constitute a major obstacle to bringing litigation against member States of international organizations before foreign courts (and, incidentally, to bringing litigation against international organizations themselves). (4) International Courts and Tribunals Because of the difficulties potentially encountered before domestic courts, the individual victim of harm might wish to sue the Member State of the international organization before an international court or tribunal. This could be a regional human rights system — such as the European or InterAmerican Court of Human Rights — or the internal judicial mechanism of the international organization itself, for instance, through a case before the General Court of the European Union. In these cases, the rules on invocation of the responsibility of the member State will be entirely dependent on the sub-system of international law under consideration: it may be that a remedy is available against a member State of an international organization in a bilateral investment treaty context, or in a human rights context, while no remedy is directly available in, say, the wto context. Furthermore, even when the responsibility of member States of an international organization can in principle be directly invoked by a victim of harm, some difficulties might be encountered by persons seeking redress because of issues of attribution of conduct. Before the European Court of Human Rights, for example, the respondent government successfully challenged the admissibility ratione personae of an application in the notorious Behrami case (fortunately all but set aside by the subsequent Al-Jedda case).35 As in many other contexts where 33 34

35

Constitutional Legitimacy of Article 1, Law No. 848 of 1957 and Article 1, Law No. 5 of 2013, 22 October 2014, Italian Constitutional Court, No. 238/2014. The case has led to a number of commentaries, reference to which is made inter alia by  Anne Peters, ‘Let Not Triepel Triumph — How To Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order’, VerfBlog, 23 December 2014, available at: . Cf. Behrami v. France and Saramati v. France, Germany and Norway, 2 May 2007, European Court of Human Rights, Grand Chamber, Admissibility, App. No. 71412/01 and 78166/01, (2007) 45 ehrr se10; and Al-Jedda v. United Kingdom 7 July 2011, European Court of Human Rights, Grand Chamber, App. No. 27021/08, 30 bhrc 637.

The Invocation of Member State Responsibility

203

responsibility is potentially shared between many States or States and international organizations, international courts have sometimes failed to accept claims of individuals for the same procedural reasons considered below as to inter-State claims.36 The Injured Party is an Individual (or a Company) Whose Claim is Espoused by Their State of Nationality It follows from the above that there are many possible hindrances faced by an individual or company seeking to find a forum where to sue the member State of an international organization directly, but these procedural obstacles may be alleviated if the State of nationality of the victim espouses his or her claim internationally under diplomatic protection rules. According to the Mavrommatis principle, an injury to a citizen is deemed to be an injury to their State of nationality so that, if the injury is internationally unlawful, it can become the object of an inter-State claim.37 This path is, however, not free from its own hindrances. First, the victim of harm would have to persuade his or her government to act on his or her behalf – something which individuals might find particularly difficult unless their political or economic interests coincide with those of the government. Second, even if the country in question were favourably disposed, it might not have the resources to face international litigation. Third, there are two additional procedural layers which apply to claims in diplomatic protection: the exhaustion of local remedies and the question of nationality. Article 44 of the asr enshrines these rules of customary international law, which were then further elaborated in the ilc Articles on Diplomatic Protection.38 Setting aside complex questions of nationality (such as those concerning the nationality of a corporation), the rule on the exhaustion of local remedies might constitute a particularly strong practical obstacle when invoking the responsibility of Member States of an international organization, because it leads to a sort of double whammy. Not only, as we saw in Section A.2 above, are there many potential procedural obstacles before domestic courts, but the victim would have to demonstrate that he or she has, in fact, tried to overcome those obstacles and attempted to obtain redress from the highest domestic courts of the respondent State B

36 37 38

See generally Annemarieke Vermeer-Künzli, ‘Invocation of Responsibility’, in A. Nollkaemper and I. Plakokefalos (eds.), supra note 12, pp. 251–283. Mavrommatis Palestine Concessions, 30 August 1924, Permanent Court of International Justice, (1924) Series A, No. 2, p. 12. asr and Commentaries, supra note 25, Article 44; and International Law Commission, Articles on Diplomatic Protection (2006), un Doc. a/res/62/67.

204

Messineo

before his or her claim could be espoused by his or her State of nationality. The claimant can indeed invoke an exception to the exhaustion of local remedies rule when available remedies would in fact have been ineffective, but proving that might be complicated. In practice, this adds  many potential admissibility challenges which further restrict the chances of success. C The Injured Party is a State When a State has been directly injured, the question of choosing the forum is (relatively) easier, as only inter-State adjudicatory proceedings will ordinarily be available. The availability of a forum will depend on the subset of international law rules being invoked: for instance, procedural systems available in a wto context will be different from those available in a human rights context, and so on. From the point of view of the general rules of international responsibility, the situation of a State invoking the responsibility of a member State of an international organization is no different from any other inter-State dispute, so that Article 42 of the asr would apply as the basic rule on standing: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. What characterizes the invocation of the responsibility of member States of an international organization is the fact that the responsibility invoked might be shared between many subjects of international law, including other member States and the international organization itself. In this case, the Monetary Gold principle of indispensable parties might constitute a further procedural obstacle.39 This is an issue which is discussed elsewhere in this special issue of the

39

See Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), 15 June 1954, International Court of Justice, Preliminary Question, [1954] icj Reports p. 19.

The Invocation of Member State Responsibility

205

Review,40 so it will not be addressed here at all, except to mention that, according to more recent jurisprudence such as Nauru,41 the principle may not apply in practice because of the concurrent principle of independent responsibility, enshrined in Article 47 of the asr, according to which, “[w]here several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act”. D A Third State Acts under Article 48 of the asr At the ilc, the development of norms on the invocation of international responsibility was quite complex. An initial version of the relevant article on invocation (what was at some point Draft Article 40) defined as the “injured States” all States that could invoke the responsibility of another State for a wrongful act, including those who were not directly affected by the breach. This attempt was linked to the idea, still advanced today by Barboza and Stern, that any breach of a legal obligation owed to other States in a multilateral ­context constitutes a “legal injury” for any State which is part of the same multilateral treaty or otherwise bound by the same set of rules.42 However, the final 2001 asr opted for a distinction between the invocation of responsibility by the “injured” States (Article 42 of the asr, including those espousing claims in diplomatic protection under Article 44 of the asr), and the invocation by “non-injured” States by virtue of erga omnes or erga omnes partes principles (Article 48 of the asr). It follows that an injured individual or company could theoretically succeed in persuading a third State — that is, not the one of their nationality — to bring an international claim against a member State of an international organization by virtue of the erga omnes and erga omnes partes rules enshrined in Article 48 of the asr, which concern cases of invocation of responsibility “by a State other than an injured State”, so long as the following conditions are met:

40 41 42

See the contribution of Paolo Palchetti in this special forum, ‘Litigating Member State Responsibility: the Monetary Gold Principle and the Protection of Absent Organizations’. See, among others, Certain Phosphate Lands in Nauru (Nauru v. Australia), 26 June 1992, International Court of Justice, Preliminary Objections, [1992] icj Reports p. 240. See e.g. Julio Barboza, ‘Legal Injury: The Tip of the Iceberg in the Law of State Responsibility’, in Ragazzi (ed.), supra note 2, pp. 7–22; Brigitte Stern, ‘A Plea for “Reconstruction” of International Responsibility based on the Notion of Legal Injury, also in Ragazzi (ed.), supra note 2, pp. 93–106.

206

Messineo

1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. 3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1. If an obligation is owed erga omnes, any State can invoke the responsibility of a non-complying State, regardless of who was directly injured by the breach. As is well known, this principle arises from the Barcelona Traction case.43 The icj recently also had the opportunity to clarify the concept of erga omnes par­ tes obligations in the Belgium v. Senegal case, where, referring back to the Reservations to the Convention on Genocide case, the Court held as follows with regard to the Convention Against Torture: 69. The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations

43

Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 5 February 1970, International Court of Justice, Second Phase, [1970] icj Reports p. 32, at para. 33.

The Invocation of Member State Responsibility

207

erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.44 However, as the third paragraph of Article 48 of the asr clarifies, any claim brought under these principles would not be one of diplomatic protection: if a claim were explicitly brought on behalf of an individual or company, the rules on exhaustion of local remedies and, crucially, nationality would still apply. A claim under Article 48 of the asr must therefore be a direct claim of the applicant State, on the international plane, that the respondent government has breached a provision of international law which is, by its own nature, owed to the international community as a whole (erga omnes, Article 48(1)(b)), or which is owed to all the signatories of a multilateral treaty because it protects their collective interest (erga omnes partes, Article 48(1)(a)).45 Aside from the fact that any remedy beyond a declaration would probably be unlikely, the nature of such inter-State claims would render any compensation due to the claiming State unlikely to be transferred to the injured individual or company. In fact, such a transfer is almost a matter of courtesy even in a diplomatic protection context.46 3

Even if You Did Find a Forum, There might be Other Obstacles

As we saw, all the options available to make a claim against a Member State of an international organization have many potential drawbacks. But even if the injured individual, company or State were to find a forum which had jurisdiction to hear the case, and their case were potentially well-founded as a matter of substantive law, there might be other, further obstacles to obtaining redress. First, there is the crucial issue of costs. As the litigation in the International Tin Council cases has shown, injured parties attempting to seek redress may have to make similar claims before various courts in succession or at the same time. 44

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, International Court of Justice, [2012] icj Reports p. 422, at paras. 67–70. See also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 28 May 1951, International Court of Justice, Advisory Opinion, [1951] icj Reports p. 15. 45 On the relationship between individual claims and erga omnes principles, see Annemarieke Vermeer-Künzli, ‘A Matter of Interest: Diplomatic Protection and State Responsibility “Erga Omnes”’ (2007) 56 International and Comparative Law Quarterly pp. 553–581. 46 See International Law Commission, Articles on Diplomatic Protection, supra note 38, Art. 19 (c).

208

Messineo

Legal costs would consequently levitate, well out of proportion for any claimant who is not deep-pocketed. Second, the inherent difficulties discussed in this chapter often arise because an injured party is limited in the scope of the substantive claim it can in fact make by the forum chosen. For instance, if no recourse is possible against an injuring international organization itself because of immunity principles, one might decide to sue the member State; or, if the most directly injuring member State is shielded because of State immunity principles, a claimant may decide to sue their State of nationality simply because a forum is in fact available there. In other words, the most direct or appropriate form of responsibility may not be available because of the many difficulties mentioned above, so that very cumbersome (and expensive) ‘proxies’ to the ‘real’ dispute are concocted. For example, in the Sayadi and Vinck communication of the Human Rights Committee of 2008,47 the Committee had to consider the question of Belgium’s responsibility in the context of the un Sanctions Committee list as a question focusing narrowly on the acts of Belgium as a State, seen completely separately from the acts of the un Security Council. In fact, it was clearly at the un level that the real injury to the claimant’s rights occurred and, in the opinion of some of the Committee Members, Belgium had done all that it was in its power to do to remedy the situation.48 4

Conclusions: Rekindling Old Utopias

This brings us to the conclusion of this rather grim overview of potential obstacles to obtaining redress from member States of international organizations. In the Sayadi and Vinck case, as in many others, the true obstacle resided in the fact that no direct independent remedy exists against international organizations, and that available direct remedies against States are few and far between. In my view, the solution to these problems is not attempting to carve out further exceptions to State immunity before domestic courts. Not only has that avenue been effectively foreclosed by the Germany v. Italy decision (pace the Italian Constitutional Court), it might also be strategically unwise in the long run because unenforceable domestic declaratory judgments are unlikely to promote the necessary political change within third states and international

47 48

Nabil Sayadi and Patricia Vinck v. Belgium, 22 October 2008, Human Rights Committee, Communication No. 1472/2006, un Doc. ccpr/c/94/d/1472/2006. Ibid., Individual opinion (partly dissenting) by Committee members Sir Nigel Rodley, Mr. Ivan Shearer and Ms. Iulia Antoanella Motoc.

The Invocation of Member State Responsibility

209

organizations.49 Rather, a two-pronged approach should be adopted, one which focuses on bringing responsibility closest to home. First, domestic judicial review procedures under constitutional and administrative law should become more open to claims deriving from internationally wrongful acts. Each domestic Court, as well as every State organ, should do its utmost to give effect to international law in the domestic forum and afford less deference to its government when breaches of international law are concerned. In this regard, even if a State’s legal system adopts a strict separation of domestic law from international law (one of the many shades of ‘dualism’, including the doctrine of indivisibility mentioned above), giving effect to international law is often a question of making judicial review mechanisms more available, even if they are formally domestic in nature. In other words, strengthening administrative law can be a tool for giving effect to public international law in the domestic forum. Second, international dispute settlement mechanisms should be reinforced. If the political will existed, it would be relatively easy to extend dispute settlement systems to international organizations so that they can also be directly sued before international courts and tribunals. The experience of wto litigation involving the European Union is evidence that the system of international adjudication can conceptually deal with international organizations as litigators without falling apart. On the other hand, States should accept more compulsory avenues of dispute resolution. This would bring us much closer to Wehberg’s dreams of affording injured parties a direct right of action for every breach of international law.

49

This has been eloquently explained by Roger O’Keefe, supra note 26, with reference to the separate question of state immunity bars to civil litigation alleging internationally wrongful ill-treatment occurred abroad at the hands of another State. He underlined how “this legal strategy and discourse have their bad guys, so to speak, confused” because it is the perpetrator State, not the forum State, which should be held ultimately accountable; and even if State immunity were bypassed by a declaratory judgment, there would be no (or little) enforcement possible in the forum State against the perpetrating State, nor an incentive for the latter to reform its policies of human rights abuse.

chapter 12

The Responsibility of Member States of International Organizations Concluding Observations Cedric Ryngaert 1 Introduction The ten contributions to this special forum have each brought to the fore various aspects of the responsibility of member States in connection with the acts of international organizations. This concluding contribution aims to bring together the different arguments. The contribution starts by pointing out, in Section 1, that the separate legal personality of the international organization and its member States, and the autonomy enjoyed by the international organization vis-à-vis its member States, does not mean that member States participating in institutional settings entirely disappear behind the international organization, including for responsibility purposes. Within these settings, member States retain some autonomous, discretionary powers which form the basis for their responsibility in connection with international organization action. The linchpin for a finding of member State responsibility is the issue of attributing conduct or responsibility to the member State rather than (only) to the international organization. Specific principles of attribution have been suggested by the International Law Commission (‘ilc’) in the Articles on the Responsibility of International Organizations for Internationally Wrongful Acts (‘ario’). As argued in Section 3, in many scenarios of joint or parallel international organization-member State action within institutional settings, conduct or responsibility can, on the basis of the familiar principles of attribution, in fact, be imputed to both the international organization and its member State(s). This dual attribution could result in the international organization and the member State(s) sharing responsibility. It is cautioned, however, that international organizations and member States should not too readily share responsibility,

* The research which resulted in this publication has been funded by the European Research Council under the Starting Grant Scheme (Proposal 336230 – unijuris) and the Dutch Organization for Scientific Research under the vidi Scheme (No 016.135.322).

© koninklijke brill nv, leiden, 2016 | doi 10.1163/9789004319806_013

Concluding Observations

211

particularly not when one of the actors is not ‘blameworthy’ as that term should properly be understood. Throughout the contributions to this special forum, it has become apparent that the principles governing the responsibility of member States are primarily doctrinal constructs which have not yet garnered a strong foothold in legal practice. Nevertheless, as pointed out in Section  4, the responsibility of member States has been invoked in a number of dispute-settlement fora, including before domestic courts. However, there remain major practical and doctrinal obstacles to the successful invocation of the responsibility of member States. Such obstacles could be overcome, but it is crucial that member States are ultimately not held responsible by virtue of their mere membership of an international organization. Where remedies against international organizations are lacking, the solution is not to allow claims to be vicariously directed against the member States but rather to strengthen remedies against the international organizations themselves. Even then, however, the mechanism of member State responsibility may prompt member States to make an additional effort to improve the quality of remedies at the level of the international organization. As creators of international organizations, it may be argued that member States have a duty to ensure that international organizations comply with basic rule of law prescriptions and establish adequate procedures that protect the rights of third parties. 2

The Autonomy of the International Organization vis-à-vis Its Member States

International institutional lawyers are wont to emphasize the autonomy of international organizations, and that their legal personality should be separate from their member States’. International organizations have become powerful actors which have their own agency and cannot be reduced to fronts for their founding fathers, the member States. As d’Aspremont points out, it can be argued that the ario, while aiming to restrain international organization power through responsibility (accounta­ bility) rules, have further cemented the power of international organizations,  even more than the conferral of international legal personality on international organizations has done.1 The ario make it clear indeed that international organizations have the capacity to aid, coerce, or direct other 1 It could thus be submitted that in the history of international institutional law, the ario may have had more empowering effect than the Reparation for Injuries case (Reparation for Injuries Suffered in the Service of the United Nations, 11 April 1949, International Court of

212

Ryngaert

actors — States in particular — to commit international wrongfully acts,2 which implies that their power may exceed that of States. Such scenarios of abuse of power are not common, however. In the ordinary course of events, international organizations exercise their powers with a view to discharging the functions legally assigned to them in their constitutional documents: they are not normally inclined to engage in wrongful conduct. For the effective exercise of these powers, it is crucial that international organizations need not be concerned by the risk of micro-management of member States. A legally-anchored autonomy for the international organization may go a long way to prevent intervention by their creators. Rules of international responsibility are important tools in this respect. Where such rules too easily allow for a member State’s responsibility to be engaged for, or in connection with the acts of an international organization (in particular through overbroad rules of attribution), it is to be expected that member States will intervene in the international organization’s affairs so as to prevent wrongful acts from being committed. Such an outcome would effectively scuttle the international organization’s autonomy, drastically reduce its effectivité, and eventually possibly reduce global welfare, which is normally boosted by international cooperation. This explains why Blokker has warned of the danger of doctrines of member State responsibility, citing, among other risks, the risk that, with respect to international military operations, member States will upset institutional command structures, and, even worse, that they may refrain from contributing troops for fear of being held responsible if operations go wrong. From this perspective, member States should certainly not be held responsible by virtue of their membership alone.3 Such a rule would unfairly allocate responsibility to actors who were not in a position to prevent wrongful conduct and would have dire effects for the functioning of inter­ national organizations. It remains, however, that, in spite of the separate international legal personality and the autonomy of international organizations, member States do not entirely disappear behind the international organization’s institutional veil (to use the elegant phrasing of Catherine Justice, Advisory Opinion, [1949] icj Reports p. 174), which for the first time recognized the separate international legal personality of international organizations. 2 International Law Commission, Articles on the Responsibility of International Organizations (2011), un Doc. a/res/66/100 and the accompanying Commentaries (‘ario and Commentaries’), Arts. 14–17. 3 Resolution ii, (1995) 66(1) Annuaire de l’Institut de Droit International p. 445; ario and Commentaries, supra note 2, commentary to Article 62.

Concluding Observations

213

Brölmann). The organization retains a measure of transparency, meaning that the member States remain discernible, with important consequences for responsibility. Within international institutional settings, or in connection with international institutional action, member States continue to pursue autonomous policies. This goes to show, as Wessel and Dekker have pointed out in their contribution, that member States can take on different qualities and functions in relation to the work of international organizations and, in spite of the autonomy of the international organization, do not disappear. Ana Sofia Barros, for her part, emphasizes that member States’ transfer of competences to international organizations is a continuous one, with member States in fact taking part in the exercise of international organization power or at least having a duty to manage the exercise of authority by international organizations. Some of the qualities and functions of member States in relation to international organizations have particular relevance for responsibility purposes. First, member States may, often via their voting power, push or obstruct particular projects within international organization organs that are composed of member State representatives, such as the un Security Council or the Board of Executive Directors of international financial institutions. It would be quite a stretch to attribute such voting behaviour to the international organization: the better view is that it is the member State’s own conduct.4 Ana Sofia Barros thus highlights that autonomous conduct of member States in connection with international organization decision-making could engage their international (State) responsibility and that due diligence obligations, such as those drawn from international human rights law, are incumbent on them when acting within international organizations. Along similar lines, the icj, in the Interim Accord Case (2011), held Greece, as a member State of nato, responsible for objecting and acting to prevent the former Yugoslav Republic of Macedonia (‘fyrom’) from receiving an invitation to proceed to nato membership,5 in violation of an Interim Accord (1995), whereby Greece had agreed “not to object to the application by or the membership of [fyrom] in international, multilateral and regional organizations and institutions of

4 Ana Sofia Barros and Cedric Ryngaert ‘The Position of Member States in (Autonomous) Institutional Decision-Making: Implications for the Establishment of Responsibility’ (2014) 11(1) International Organizations Law Review pp. 53–82. 5 Application of the Interim Accord of 13 September 1995 (fyrm v. Greece), 5 December 2011, International Court of Justice, [2011] icj Reports p. 644, at p. 660, para. 42.

214

Ryngaert

which [Greece] is a member”.6 According to the International Court of Justice (‘icj’), the question before it was “not whether the decision taken by nato … with respect to the Applicant’s candidacy was due exclusively, principally, or marginally to [Greece’s] objection”, but whether Greece “by its own conduct, did not comply with the obligation not to object contained in Article 11, paragraph 1, of the Interim Accord”.7 Secondly, autonomous member State action could be found in an operational context, where the member State places its organs at the disposal of the  international organization for the conduct of operations mandated and commanded by an international organization. Insofar as the member State continues to exercise effective control over these organs, will wrongful conduct carried out by these organs be attributed to the member State and engage the member State’s responsibility in accordance with the law of state responsibility.8 Notably in multinational military operations under the auspices of the un or a regional organization, this principle has major traction, as discussed by Tom Dannenbaum. Relatedly, a measure of autonomous member State action may take place where member States implement decisions of international organizations, who may have been allocated competences but no implementation or enforcement powers of their own. The role of member States as law-implementers begs the question as to whether their responsibility is, or should be, engaged when international law violations take place when implementing international organization obligations. Thirdly, member States may use their influence to cause international organizations to perform particular conduct, namely where they aid or assist the international organization, direct or control it, coerce it, or take advantage of its competences. Such conduct, if an internationally wrongful act, may engage the responsibility of both the international organization and the intervening member State: while the conduct may be attributed to the international organization, the responsibility may also be attributed to the member State. Part v of the ario gives an overview of the relevant principles. It also adds that member States could incur subsidiary responsibility where they have accepted responsibility for a wrongful act towards the injured party or have led the 6 Interim Accord between the Hellenic Republic and the fyrom, 13 September 1995, extracted in Application of the Interim Accord, supra note 5. 7 Application of the Interim Accord, supra note 5, para. 70. 8 Art. 7 of the ario a contrario (“The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct”).

Concluding Observations

215

injured party to rely on their responsibility,9 a scenario that may occur where, in the constitutional document of the international organization, member States lay down such subsidiary responsibility, such as for debts or other liabilities of the organization. 3

The Centrality of Attribution

One of the key issues determining the allocation of responsibility between international organizations and their member States pertains to who, within a complex, multi-layered normative and operational institutional setting, precisely controlled, decisively influenced, or accepted a fateful decision leading to a violation of international law. In deceptively simple terms, this is the issue of where the international organization begins and the member States end, or vice versa, which was unpacked by Ramses Wessel and Ige Dekker in their opening contribution. For it is a cornerstone of the law of responsibility that an actor can only be held responsible where the impugned acts could be attributed to it, or where it is somehow connected to these acts. Specific rules of attribution of conduct and responsibility between international organizations and their member States feature in the ario (some of them borrowed from the ars), such as control, direction, coercion, acceptance, and circumvention. All of them base attribution, and ultimately responsibility if an actual violation of international law is found, on the proximity of an actor to a particular ­conduct (attribution of conduct), or the proximity of an actor to another actor  to whom the wrongful conduct has been attributed (attribution of responsibility). On the basis of the rules of attribution, it is by no means excluded that conduct or responsibility is simultaneously attributed to the international organization and its member State(s): for example, where both exercise effective control over wrongful conduct, or where one directs the other to commit an internationally wrongful act. The responsibility of international organizations and their member States can then be considered as shared. Shared responsibility via dual attribution need not be exceptional. In cooperative undertakings between international organizations and member States it may possibly be the rule rather than the exception. Three scenarios spring to mind: 9 Art. 62 of the ario. Note that some of the principles discussed in Part v of the ario, notably Arts. 58, 59 and 60, may not only apply to member States, but to any States, even when they are not members of the relevant international organization. See ario and Commentaries, supra note 2, commentary (4) to the chapeau of Part v of the ario.

216

Ryngaert

(1) the conduct of un peace operations; (2) the imposition of un sanctions; and (3) mixed agreements to which both the eu and its member States are parties. First, un peace operations may be structurally predisposed towards shared responsibility, as member States place troop contingents at the disposal of an international organization, and a complex command structure is typically set up, involving a un and a national force commander, who in turn may be influenced by un headquarters or national capitals as the case may be. Where these troops commit or fail to prevent violations, both the un and the member State may exercise a measure of effective control over the relevant conduct, which on that basis may be attributed to both. As Tom Dannenbaum notes in his contribution, such dual attribution was in fact implied by Dutch courts in the Srebrenica litigation and by the European Court of Human Rights (‘ecthr’) in the Al Jedda case. Dual attribution may also be found in another, not uncommon, scenario of international organization-member State cooperation, namely the imposition of un sanctions against suspected terrorists or terrorist supporters. Such sanctions are decided at the level of the un, transformed into statutory law by regional organizations (such as the eu) and/or member States, and applied against individuals or entities by member States. Where such sanctions are not in compliance with international human rights law, both the un and the member States implementing them may share international responsibility, as Antonios Tzanakopoulos has observed. The sanctions physically applied against a particular person are obviously attributable to the State as the implementing actor; but, assuming that the state is legally bound to apply sanctions ordered by the un Security Council (pursuant to Article 25 of the un Charter) and is not just exercising its discretion, the un, as the controlling or deciding organization, may also have the relevant conduct, or at least responsibility for that conduct, attributed to it. Thirdly, dual attribution, and the ensuing shared responsibility of the international organization and its member State, as Esa Paasivirta has highlighted, may be the default position with respect to mixed international agreements with third parties to which both the eu and its member States are parties. Third parties should not be adversely affected by an internal division of competences between international organizations and their member States and should thus be allowed to invoke the responsibility of both for the violation of the agreement. Thus, the Draft eu-Singapore Free Trade Agreement provides that the eu and its member States shall not assert “the inadmissibility of a claim, or otherwise assert that a claim or award is unfounded or invalid, on the ground that the proper respondent should be or should have been the Union

Concluding Observations

217

rather than the member State or vice versa”.10 If the eu and the member States would like to avoid a finding of joint responsibility, they could always communicate to third parties the exact division of competences between them in respect of the implementation of the agreement so that these parties could take an informed decision as to whose responsibility to invoke for a violation. Insofar as this division of competences is not updated, of course, as Brölmann observed, such division cannot be opposed to third parties, with the attendant  consequences for responsibility. To a certain extent, joint eu-member State responsibility as the default responsibility regime11 is also how the corespondent mechanism under the eu-echr Draft Accession Agreement12 will operate. Pursuant to this mechanism, where an individual directs an application regarding a violation of the European Convention on Human Rights against one or more member States of the European Union, the eu may in some circumstances become a co-respondent to the proceedings in respect of an alleged violation notified by the Court; if subsequently a violation is established, the Agreement provides that the respondent and the co-respondent shall be jointly responsible for that violation.13 In scenarios of joint international organization-member State action, dual attribution or shared responsibility should not be found too readily, however, as it may well be that one of the actors involved has no individual agency or power to prevent the wrongful conduct. Thus, Dannenbaum criticises the Hague District Court judgment’s implication in the Mothers of Srebrenica litigation (2014) that the relevant conduct — the expulsion of Bosnian civilians from a mini safe area where they had sought refuge — might also be attributable to the United Nations, and not just to the Netherlands as the troop-contributing state, on the ground that in the particular case, the un, unlike the Netherlands, did not hold ‘key levers of obedience-generating control’. Somewhat similarly, one may wonder whether a member State faithfully implementing a sanctions resolution of the un Security Council binding on it is anyhow blameworthy. Conscious of the need to offer accountability to victims of sanctions, courts have made ingenious attempts to hold member States (or the eu) responsible. 10 11

12

13

Art. 9.15(4) of the draft eu-Singapore Free Trade Agreement. Note that Brölmann, in her contribution to this special forum, takes issue with the characterization of such joint responsibility as the default responsibility regime. Instead, she argues, descriptively, that ad hoc arrangements on responsibility are normally made. Council of Europe, Fifth negotiation meeting between the cddh ad hoc negotiation group and the European Commission on the Accession of the eu to the European Convention on Human Rights, Council of Europe Document 47+1(2013)008rev2, Strasbourg, 10 June 2013. Ibid., Article 3(7).

218

Ryngaert

In the Kadi case, the Court of Justice of the eu famously turned a blind eye to the international normative source of the anti-terrorist sanctions imposed by the un and held the eu liable for violations of eu fundamental rights protections.14 In the Nada case, the ecthr held Switzerland responsible for violations of the European Convention on Human Rights, on the ground that it exercised its discretion when implementing un sanctions, even when Switzerland did little more than implement resolutions that were legally binding on it.15 Such decisions may seem to unfairly target member States (or the eu), but as Tzanakopoulos has pointed out, they not only implement the responsibility of the member State but also that of the un, as they serve as a mechanism of pressure for the un to change its ways, lest its decisions remain unimplemented. More generally, when eu member States do no more than implement binding eu decisions and in fact just act as agents of the eu (which indeed relies on its member States as eu law-enforcement agencies), it would be somewhat incongruous to hold a member State responsible alongside the eu. As Paasivirta suggests in this respect, responsibility may have to be based on competence; thus, where a member State exercises the eu’s competences, the responsibility may have to lie with the eu. The International Tribunal for the Law of the Sea has held as much in its advisory opinion in Case No. 21, holding that where an international organization, in the exercise of its exclusive competence in fisheries matters, concludes a fisheries access agreement with [a member State of the Sub-Regional Fisheries Commission, a West African international organization] only the international organization may be held liable for any breach of its obligations arising from the fisheries access agreement, and not its member States16 even if the pertinent fishing vessel flies the flag of a member State. Obviously, that a regional economic integration organization such as the eu has exclusive competences over a number of subject-matters may be well-known to third parties so that they are put on notice that responsibility claims should be 14

15 16

Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, 3 September 2008, European Court of Justice, Joined cases C-402/05 P and C-415/05, [2008] ecr i-6351. Nada v. Switzerland, 12 December 2012, European Court of Human Rights, App. No. 10593/08. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, 2 April 2015, International Tribunal for the Law of the Sea, Advisory Opinion, Case No. 21, available at: , paras. 172 and 174.

Concluding Observations

219

directed to the international organization rather than the member State. However, even in case of shared or parallel competences, the third party may want to inquire what competences belong to the international organization and the member State. As a result, a finding of joint international organization-member State responsibility in case of international law violations is not a natural occurrence. 4

Invocation of Responsibility

As is also the case in general international law, the allocation of responsibility between member States and international organizations is primarily determined by the member States and international organizations themselves, as dispute-settlement mechanisms with jurisdiction over international responsibility questions are largely absent. Over the years, States and international organizations have paid little attention to the intricacies of member State responsibility, however. Even in the consultation round organised by the ilc in the context of its work on the ario, input from States and international organizations on the issue was rather scarce. As a result, the principles of member State responsibility are largely a doctrinal creation flowing from the application per analogiam of categories found in the earlier ilc asr, or simply from common sense. In the commentaries to the relevant ario principles, at any rate, little state and institutional practice can be discerned. How such practice develops after the adoption of the ario, is likely to be strongly influenced by the choices made by the drafters of the ario. Mechanisms that can settle disputes over the allocation of responsibility between member States and international organizations are not entirely absent, however. While international courts do not normally have jurisdiction over international organizations, they do have jurisdiction over States. Similarly, while the immunity of international organizations will normally bar domestic courts’ exercise of jurisdiction over international organizations, these courts have jurisdiction over States, at least their own State. The responsibility of member States could thus well be litigated in court. Case-law from the ecthr, the icj, and some domestic courts demonstrates the potential of such litigation. The ecthr has addressed member State responsibility head-on in the context of attributing conduct to states contributing troops to multinational operations under un auspices (Behrami and Al Jedda),17 as well as in a 17

Joined cases Behrami and Behrami v. France, 2 May 2007, European Court of Human Rights, App. No. 71412/01 and Saramati v. France, Germany And Norway, 2 May 2007,

220

Ryngaert

string of cases concerning the responsibility of member States for eu conduct (starting with Bosphorus).18 The icj has obliquely touched upon the issue in a number of cases (Phosphates, Application Interim Agreement).19 The most pertinent case brought before the icj, concerning the responsibility of nato member States for the nato bombing of Serbia in 1999, was aborted for jurisdictional reasons at an early stage of the proceedings.20 Domestic courts, for their part, have hardly addressed member State responsibility, with the notable exception of Dutch courts. In a number of high-profile cases with respect to the 1995 massacre in Srebrenica (Bosnia-Herzegovina) filed by victims’ relatives against the State of the Netherlands — which had contributed troops to the un operation in Bosnia — Dutch courts held the state responsible for delivering Bosnian men into the hands of Bosnian Serb militia, in the knowledge that in all likelihood they would be killed.21 The courts’ decisions are well-reasoned and make abundant reference to international law, in particular to Article 7 of the ario, which enshrines the effective control standard as a standard to allocate responsibility in international military operations. Having been translated immediately into English, they have garnered the attention of international legal scholarship22 and may well have impact in other jurisdictions confronted with questions of allocation of responsibility in international military operations to which the forum state has contributed troops. As Francesco Messineo warns, however, legal and practical

18

19

20 21

22

European Court of Human Rights, App. No. 78166/01; Jedda v. United Kingdom, 7 July 2011, European Court of Human Rights, App. No. 27021/08, 30 bhrc 637. Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland, 30 June 2005, European Court of Human Rights, App. No. 45036/98, (2006) 42 European Human Rights Reports p. 1. Certain Phosphate Lands in Nauru (Nauru v. Australia), 26 June 1992, International Court of Justice, Preliminary Objections, [1992] icj Reports p. 240. Application of the Interim Accord, supra note 5. Legality of the Use of Force (Federal Republic of Yugoslavia v. France), 15 December 2004, International Court of Justice, Preliminary Objections, [2004] icj Reports p. 575. Nuhanović v. Netherlands, 5 July 2011, Gerechtshof 's-Gravenhage, Appellate Judgment, ljn: br 5388; Mustafic v. Netherlands, 5 July 2011, Gerechtshof's-Gravenhage, Appellate Judgment, ljn: br5386; Mothers of Srebrenica v. Netherlands, 17 July 2014, Rechtbank 's-Gravenhage, ljn: 8748/C/09/295247. E.g. Bérénice Boutin, ‘Responsibility of the Netherlands for the Acts of Dutchbat in Nuhanović and Mustafić: The Continuous Quest for a Tangible Meaning for “Effective Control” in the context of Peacekeeping’ (2012) 25(2) Leiden Journal of International Law pp. 521–535; Paolo Palchetti, ‘Attributing the Conduct of Dutchbat in Srebrenica: The 2014 Judgment of the District Court in the Mothers of Srebrenica Case’ (2015) Netherlands International Law Review pp. 279–294.

Concluding Observations

221

obstacles may stand in the way of domestic courts entertaining such cases. In other jurisdictions where cases against the State have been brought, notably the United Kingdom and Germany, courts have declared cases involving military operations abroad non-justiciable or ruled that individuals are not entitled to invoke international responsibility norms in domestic claims processes. Costs are obviously an additional complicating factor, which in the Dutch Srebrenica cases happened to be overcome because foundations supported the claimants.23 States are well-advised to remove remaining obstacles to litigation concerning the responsibility of member States in domestic courts. Even where courts can entertain cases pertaining to member State responsibility, as Paolo Palchetti has observed, account should however also be taken of the indispensable third party doctrine, as enunciated by the icj in the Monetary Gold Case.24 Pursuant to the Monetary Gold principle, a court cannot exercise its jurisdiction over a dispute when the legal interests of a third party (being a party not before the court) would form the very subject-matter of the decision.25 This principle may prove to be a serious obstacle to successful litigation against member States with respect to the allocation of responsibility in connection with international organization conduct, as a decision on the responsibility of the State may almost inevitably impact on the legal position of the international organization: holding that a member State is attributed responsibility in connection with international organization conduct may presuppose the attribution of conduct to the international organization. As Palchetti rightly observes, however, a narrow interpretation of Monetary Gold in such cases is called for, as further limitations to the jurisdiction of courts over issues of member State responsibility are undesirable. Where derived member State responsibility does not require international wrongfulness on the part of the international organization — and even more, where courts 23

24

25

Stichting Mothers of Srebrenica and Nuhanovic Foundation. The latter foundation was established in 2011, on account of one of the Srebrenica cases (Nuhanović v. State of the Netherlands, supra note 21), by a number of leading litigators and specialists in the field of accountability and remedies for violations of international humanitarian law. According to its mission statement, the Foundation “assist[s] war victims who seek access to justice to obtain a remedy in the form of reparation, restitution or compensation”, and “provide funds for investigations and legal representations in negotiations and litigation”: see its webstie, available at: . The Foundation also supports litigation outside the Netherlands. Monetary Gold Removed from Rome in 1943 (Italy v. France; United Kingdom and United States of America), 15 June 1954, International Court of Justice, Preliminary Question, [1954] icj Reports p. 19. Ibid., p. 32.

222

Ryngaert

do not have jurisdiction over international organizations in the first place — the Monetary Gold principle may not applicable, and cases against member States can move forward, perhaps subject to a rule that affected international organizations are allowed to make observations. So far, in any event, Monetary Gold has not played a role in judicial decisions with respect to member State responsibility, although the principle was invoked by the parties in various cases.26 In an international society aspiring to be based on the rule of law, external judicial intervention to settle disputes involving the responsibility of member States in connection with international organization action is surely to be applauded. However, as in other areas of life, such intervention, while not belittling its relevance, should be a last resort. Preferably, victims of institutional action, even if involving member States, can avail themselves of remedies offered by the international organization itself. The recent surge of judicial accountability efforts targeting member States is nevertheless understandable insofar as these remedies have not been, or have not been sufficiently, forthcoming. In many cases, victims have vicariously proceeded against member States, where in fact blame should have also, or even largely, been assigned to an international organization, which was nevertheless not amenable to suit for jurisdictional reasons. Thus, victims of violations committed in international military operations have tended to file suit against troop-contributing nations rather than international organizations,27 and individuals appearing on un anti-terrorism sanctions lists have filed suit against implementing states and regional organizations rather than against the un. Judgments rendered in such  cases may hold member States responsible, sometimes for good reason. However, such decisions may shoot the pianist rather than the composer. As of necessity, refraining from making pronouncements on the responsibility

26

27

Banković and others v. Belgium and 16 other States, 12 December 2001, European Court of Human Rights, App. No. 52207/99, para. 32; Joined cases Behrami and Behrami v. France, 2 May 2007, European Court of Human Rights, App. No. 71412/01 and Saramati v. France, Germany And Norway, 2 May 2007, European Court of Human Rights, App. No. 78166/01; Legality of the Use of Force, supra note 20; and Application of the Interim Accord, supra note 5, as cited in Paolo Palchetti’s contribution to this special forum. In rare cases, the international organization itself has also been targeted, but international organization immunity will ordinarily be found and serve as a procedural bar to further proceedings. See the case brought in the Netherlands against the un in respect of the Srebrenica massacre: Mothers of Srebrenica, supra note 21, (confirming the functional immunity of the un), as upheld by the ECtHR (see Stichting Mothers of Srebrenica v. Netherlands, 11 June 2013, European Court of Human Rights, App. No. 65542/12.

Concluding Observations

223

of the relevant international organization which is not before the court will inevitably produce a truncated narrative of blameworthiness. It is better to have issues of shared responsibility adjudicated by just one mechanism, located as closely as possible to the source of the violation but, nevertheless, independent of the tortfeasors. In this respect, Blokker suggests to centralise dispute-resolution with regard to international organizations or international organization-connected action primarily within the international organizations themselves. International organization mechanisms, exclusively staffed with experts in international institutional law, may be more alive to the realities of joint international organization-member State action, as a result of which their decisions may be easier to implement than decisions of outside courts, in particular member State courts. A general arbitration mechanism with appeals competences may supervise these mechanisms and ensure consistency of application of the law, in ways that dispersed member State or regional courts cannot. Whether such internal mechanisms will actually be established, however, is uncertain. Blokker may well argue that these will increase the international organization’s legitimacy — which in the current accountability era suffers owing to the absence of meaningful remedies available to aggrieved parties — but it remains to be seen whether international organizations will overcome their historical aversion to legal claims. The non-implementation, after almost 70 years, of Section 29 of the 1946 General Convention on Privileges and Immunities, providing that the un shall make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party, does not bode well in this regard. Interest groups and member States should not let up in their efforts to have such modes established. The big stick of member State responsibility carried by courts, in particular domestic courts, may naturally ensure that reformist efforts steered by member States do not slacken. In this respect, the mechanism of member State responsibility, as applied in litigation, may be characterized as a means to assign blame to member States not just for not doing enough to prevent its own violations, but also for not doing enough to prevent and redress international organization failures without which its own violations would not have occurred. 5

Concluding Observations

Since the ecthr’s Bosphorus judgment, it is common to posit that when member States accede to international organizations, they do not leave their

224

Ryngaert

international law obligations at home.28 International organizations may draw an institutional veil, but this veil could, under certain circumstances, be pierced or lifted. Where the member States are clearly visible behind the veil, their responsibility for wrongful acts within an institutional context could be engaged, whether or not alongside the responsibility of the international organization. This visibility becomes even stronger where member States use their discretion within an institutional context and act in a fully autonomous fashion: in this scenario, the institutional veil metaphor does not even seem apt. The potential for member State responsibility is an almost inevitable consequence of the complex interplay between international organizations and member States in decision-making and implementation. Member States integrate international organization decision-making organs and, in furthering their own national interests, may thus influence eventual decisions. Member States also play a key role in the implementation of international organization decisions, as international organizations do not always possess their own lawenforcement agencies. When wrongful acts occur in the context of such institutional decision-making and implementation, member States may well be held responsible given their proximity to the act. Irrespective of any contemporary international organization-member State interaction in decision-making or implementation, it may even be argued that member States have a continuous obligation — possibly under primary norms of international law — to monitor and check the exercise of competences by  international organizations, even if they were not involved in the actual exercise. It is then the very failure to properly ‘manage the authority’ of an international organization causing injury to third parties that engages the responsibility of the member State. This power and influence which member States exercise over international organizations, regardless of the latter’s ­separate legal personality and functional autonomy, ultimately constitutes the basis for a member-State responsibility paradigm. In given cases, the establishment of such responsibility by courts and tribunals may leave a lot to be desired, 28

Bosphorus, supra note 18, para. 154: In… establishing the extent to which a State's action can be justified by its compliance with obligations flowing from its membership of an international organization to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention.

Concluding Observations

225

for practical, procedural, and political reasons. Regardless of the limitations of dispute-settlement, however, the development of a more mature, theoretically grounded doctrine of member State responsibility has the potential to change member States’ calculations when acting within institutional s­ ettings, through mechanisms of value-internalization, or political (including civil society) pressure.

Index Afghanistan 26, 134–35, 199 Africa 36 Ago 37, 88, 98, 99, 101, 102 Alvarez 24 Al-Qaida 36, 44, 140–43, 158 Amerasinghe 22–23, 194 Andean Community 44 Anzilotti 100, 102 Arab Organization for Industrialization 78 Articles on Diplomatic Protection 203 Articles on the Responsibility of International Organizations (ario) attribution, see below adoption of conduct 82, 167, 215 organs at the disposal of international organizations 9, 83–86, 117, 119–20, 124, 126–27, 133–34, 138, 150, 198, 214, 216, 220 organs of an international organization 83, 124, 150, 167 State organs 117, 119, 120, 124, 148–51, 153, 214 ultra vires 30, 82, 117, 126, 129, 130 claims of individuals 43–46, 77, 104, 105, 178, 196, 197, 199–201, 203–8 choices made in drafting the 38–40, 99–103, 109, 219 comparison with ars 35, 83, 106, 109–10, 119–21, 137, 215 countermeasures 140, 157 criticism 37–38 derived responsibility  acceptance of responsibility 187, 214 aid and assistance 89, 107, 109, 117, 180, 181, 186–87, 214 circumvention 35, 66–67, 89, 109, 122, 151–52, 185, 215 coercion 62, 88, 107, 109, 185, 215 direction and control 9, 10, 40, 88–89, 107, 109, 180, 181, 186–87, 214, 215 dispute settlement 38, 45 empowerment of international actors 9, 106–13, 211

European Union’s role in the drafting of the 57 illegal ventures 138 lex specialis rules 57, 172, 178 practice 39, 88, 85, 172, 190, 219 provision of funds 38, 80 position of the European Union 91, 160, 161, 165–68, 172 responsibility of international organizations 38–39, 47, 162, 167 shared responsibility, see below subjective elements 100–1 subsidiary responsibility 77, 80–82, 90, 93, 162, 214 Articles on the Responsibility of States for Internationally Wrongful Acts (ARS)  attribution, see below adoption of conduct 82 exercising governmental ­authority 83, 103, 119, 133, 120 organs placed at the disposal of the State 83, 119–20, 129, 131 ultra vires acts 82, 117, 126, 129, 130 State organs 82–83, 103, 105, 118–19, 151 choices made in drafting the 99–103, 219 circumstances precluding wrongfulness 105 comparison with ario, see comparison with ars derived responsibility  aid and assistance 186–87 coercion 88, 215 direction and control 88, 105, 215 empowerment of States 104–7 erga omnes claims 204–5, 207 illegal ventures 138 lex specialis rules 178 practice 121 standing 204 Asian Infrastructure Investment Bank (aiib) 17

228 Association of South East Asian Nations 36 attribution and the ario 9, 57, 82–87, 91, 116–24, 126–34, 137, 138, 150–53, 166, 167, 180, 202, 210, 215, 216, 217, 220, 221 and the ars 82–83, 89, 116–20, 124, 131–35, 137, 138, 150–53 dual or multiple 85, 94, 118, 119, 121–38, 150, 152–53, 156, 180–81, 196, 210, 217 of omissions 70 presumptive 120, 122, 124, 125, 130, 135 problems with the application of attribution rules 150, 164–66, 168–69, 172 role of 101, 210 eu approach 57, 159, 166–68 un approach 86 Australia 183 Barboza 205 Bederman 110 Belgium 41, 199, 208 bin Laden 140, 141, 158 Blokker 10, 12, 81 Bosnia 84–85, 115, 217, 220 Bosnia and Herzegovina 123, 220 Brownlie 194 Cassese 32, 55, 63, 112 Chile 28 China 28 Codex Alimentarius Commission 36 Colombia 31 colonialism 30 competition law 31, 166 concurrent responsibility, see shared responsibility Condorelli 32 constitutional law 51, 54, 197–98, 200, 209 constitutionalist approach to international law 49–50, 60–64, 67, 71 control  and the ario 9, 85, 86, 88–89, 107, 109, 117–20, 125, 127–30, 137, 150, 151, 181, 186–87, 215 and the ars 83, 88, 120, 124, 134, 151 influence 56, 67

Index effective 9, 83–86, 109, 117–20, 126–30, 134, 137, 151, 214–16, 220 normative 83, 150–51, 153 operational 83, 85, 115, 123–24, 127, 129, 131, 133, 134 overall 151 overwhelming and effective 89 preventive interpretation of ­effective 127–30, 134, 137–38 ultimate authority and 122, 125, 134 Cooperation Council of Turkish Speaking States 36 cooperation frameworks 17–18 Council of Europe 25 European Convention of Human Rights 34–35, 64, 65, 70, 131, 143, 176, 191, 217–18 European Court of Human Rights 46, cooperative military enterprises 9, 41, 51, 82, 83, 86, 114, 116, 120–38, 178, 179, 212, 214, 220, 222 challenges to international law 115–16 Coalition Public Authority (cpa) 131–33 Dutchbat 40–41, 84–86, 123, 127–30 enforcement operations 27, 36, 37 illegal ventures 137–38 international organization-led 117–19 International Security and Assistance Force in Afghanistan 134 mnf 124 peacekeeping operations 1, 27, 36–37, 41–42, 114–15 123–24, 128, 180, 198, 216 kfor 34, 84, 115, 122–24, 180, 191 minustah 42 unmik 34, 84, 180 un approach 86 State-led 119–21 troop-contributing States 2, 9 83–86, 115, 118, 120, 123–24, 126–30, 133, 135, 180, 212, 217, 220, 222 ultra vires acts 126 Crawford 186 customary international law and the ario 38, 116–17, 137, 152, 172 and the ars 203 and the Articles on Diplomatic Protection 203

229

Index disputes over 29 formation of 12, 117 on dispute settlement 173 on human rights 63, 140–41, 144, 146–47, 149, 153 on immunity 201 on shared responsibility 175 on the use of force 28 Cyprus 199 de Schutter 56, 81 diplomatic and consular relations 28 diplomatic protection 76, 156, 203, 205, 207 dispute settlement 27–31, 43–46, 69, 70, 160, 170, 176–78, 180, 189, 190, 193–94, 211, 225 adjudication 196, 209 dual attribution, see attribution, dual or multiple due diligence 50, 60, 65–71, 168–69, 213 East African Community 44 East Timor 183 environment 68, 69, 163 erga omnes 63, 140, 194, 197, 205–7 Euratom 72 European Patent Office 72 European Union (eu) 8, 14, 15, 29, 31, 36, 53, 65, 91, 92, 94, 145, 159–77, 181, 196, 209, 216–18 and attribution 57, 159, 166–68 and the ario, see ario, position of the European Union competence 15, 27, 57, 91, 92, 94, 159, 161, 163–77, 217, 218 Council of the European Union 21, 53, 163 European Court of Justice (ecj) 29, 46, 139 General Court of the European Union 202 European Stability Mechanism 36 eu Commission 19, 31, 92, 163 eu Parliament 163 former members, position of 21–22 law-making 24, 26, 166, 218 legal personality 161–64 Lisbon Treaty 22, 162–63, 170

mixed agreements 91, 92, 159–61, 172, 173, 216 relationship with third States 15, 92, 176 remedies 44, 167 public international law and 8, 14–15, 65, 159–61, 163, 167, 173–74 Exclusive Economic Zone 168–69 Federal Republic of Yugoslavia 89–90, 199 Former Yugoslav Republic of Macedonia 90, 179, 195, 213 France 34, 115, 121, 179, 196 Gaja 39, 106 Gazzini 32 genocide 29, 37, 40, 84, 123 Germany 31, 199, 221 good faith 16, 25, 80, 92, 94, 174 Greece 90, 179, 188, 195, 213–14 global administrative law 62–63, 198 global governance 48–49, 59, 71 Guatemala 51 human rights 1, 2, 25, 49, 50, 56, 61, 63–71, 81, 84, 115–16, 131, 132, 139, 140, 143–45, 154, 155, 157, 158, 198, 201, 202, 204, 209, 213 customary international law on 140–41, 144, 146–47, 149, 153 equivalent protection by international organizations 145, 154–55, 198 extraterritoriality of human rights ­obligations 66, 116, 130–33 right to a fair trial 70, 140, 142–43, 146–50, 152–53, 155–58 right to remedy 64, 140–43, 147–48, 153, 156, 158 the eu and 218 humanitarian law 116, 119, 201, 221 Haiti 42, 72 Higgins 39, 76, 79 Indonesia 183 Institut de Droit International 40, 79–80, 111, 194 international institutional law 3, 11–12, 22–24, 34, 49, 71, 75, 79–80, 109–11, 211, 223

230 institutional veil 38, 74, 77, 82–94, 164, 194, 212, 224 bypassing the 88–89, 194 Inter-American Court of Human Rights 202 International Atomic Energy Agency 24 International Bureau of Weights and Measures 36 International Chamber of Commerce (icc) 78 International Civil Aviation Organisation (icao) 24, 42 International Commission on Missing Persons 36 International Court of Justice (icj) 28–30, 31, 45, 89, 118–19, 126, 136, 178–79, 181–83, 187–88, 193 icj Statute 187, 189, 192 principle of consent 190, 193 International Criminal Court (icc) 11, 16 International Criminal Tribunal for the ­former Yugoslavia 31 International Labor Organisation (ilo) 15, 36 international organizations, as third party to a dispute 181, 191 autonomy 13, 19, 32, 36, 37, 46, 47, 56, 79, 81, 210–13, 224 decision-making procedures 1, 2, 10, 18–21, 39, 52, 56, 58, 63, 67, 68, 90, 116, 128, 143, 213, 224 binding decisions 10, 18, 24, 26, 140, 144, 149, 150, 152, 180, 181 dissolution 22, 23 immunity 2, 17, 41, 44–45, 69, 70, 84–87, 94, 129, 146, 198, 208, 219, 222 locus standi 45, 190 organs of 12, 13, 19, 20, 39, 53, 61, 76 power of 9, 95, 107, 211 relationship with member states 1, 3, 9, 10, 12–14, 17, 19–21, 32, 34–36, 39, 48, 50, 54, 55, 165, 166, 169 roles of 10, 23–25, 36, 75 institutional structure 1, 12–13, 19–20, 75, 119, 161 volonte distincte 12–13, 39, 81 International Organization of Vine and Wine 36 International Monetary Fund 19, 24 International Renewable Energy Agency 36

Index International Tin Council 37, 77–78, 81, 93, 194, 207 investment treaties 15, 170, 177, 202 Iran 31 Iran-United States Claims Tribunal 31 Iraq 114, 125, 131, 142 Israel 30 Italy 197–99 jurisdiction extraterritorial 116, 130–31 ratione personae 35, 86, 149, 188, 202 jus cogens, see peremptory norms Klabbers 3, 13–14, 27, 30, 61 Kosovo 34, 84, 115, 122 law of international organizations, see international institutional law law of the sea 25, 28–29, 160, 168, 174–76 flag State liability 168–69, 218 law of treaties 22, 25, 74–76 legal personality 1, 20, 30, 39, 73–75, 78, 80, 90, 95, 108, 110, 111, 159, 162–65, 185, 210–12, 224 circumvention and 185 eu and 159, 161–65 see institutional veil un and 30, 164 Libya 29 Middle East 31 Monetary Gold Principle 178–92, 204, 221–22 Nepal 42 New Zealand 183 non-proliferation of nuclear weapons 31, 54, 185 Northern Atlantic Treaty Organization (nato) 24, 34, 36, 77, 89–90, 114, 115, 122–24, 134, 135, 137, 178–79, 188, 195, 198, 199, 220, 213–14 obligation to prevent 2, 67, 69–71 Organization of American States (oas) 24 Organization for Economic Co-operation and Development (oecd) 24 Organization of Petroleum Exporting Countries (opec) 17 O’Keefe 200

231

Index pacta tertiis nec nocent nec prosunt 14 Palestine 30, 54 Permanent Court of Arbitration 45 peremptory norms 154 Portugal 183 Prost 146–47 racial discrimination 30 remedy/ reparation 1, 41, 43–46, 94, 104, 148, 149, 167, 194, 198–99, 202, 204, 207–8, 211–22, 223 restorative justice 97–98, 104, 109 right to, see human rights, right to remedy Regional Safety Oversight Organization 42 Revolutionary Armed Forces of Colombia (farc) 31 Russia 21, 26 Sarooshi 55–57 Schermers 12, 80 Scotland 31 Serbia 85, 178–79, 220 shared responsibility 78, 94, 138–40, 147, 153, 157, 196, 210, 215–17, 223 European Union and 175–76 differentiation between State and international organization 9–12 holistic approach 81 Singapore 51, 171, 216 sovereignty 21, 32, 48, 59, 135, 197 exercise of sovereign powers 49, 52, 54, 60, 61, 71 shared 50, 63 sovereign veil 74, 75 transferral 24, 39, 42, 51–52, 54–55, 58 Soviet Union 90, 121 Spain 196 Srebrenica 37, 40–41, 72, 84, 85, 123, 127–29, 220–22 Mothers of Srebrenica Association  84–86, 128 States as member States of international organizations as agents 27, 150, 166, 167, 218

as creators 13, 16–18, 50, 57–61, 64, 211, 212 as former members 21–22 as hosts 17, 82 as implementers 25–26, 31, 42, 56–58, 70, 140, 141, 145, 146, 148–58, 161, 166, 176, 181, 214, 216–18, 222, 224 as mediators 30–31 as parties to a dispute 28–30 immunity 201–2, 208, 209 legitimacy 49 obligations 8, 14–16, 18, 21, 25, 26, 38, 50, 57, 59, 64–67, 69–71, 80, 90, 92, 94, 130–33, 140, 144–50, 152–55, 157–59, 166, 173–75, 177, 185, 211, 213, 214, 224 power 9, 55, 56, 59, 60, 62, 66, 71, 107 Stern 204 Sub-Regional Fisheries Commission 168 Switzerland 17, 145, 218 Taliban 26, 134, 140–41, 158 The Netherlands 31, 40, 41, 72, 84–85, 94, 123, 127–34, 137, 138, 198, 216, 217, 220–22 Torture 48, 136, 206–7 Turkey 198 Ukraine 26 United Kingdom 53, 65, 121, 125, 131, 133–37, 183, 196, 200, 221 Brexit deal 21 Supreme Court 139, 155–56 United Nations 1, 17, 23–25, 27–30, 34, 36–38, 41, 42, 45, 54, 64, 72, 82–86, 115, 122–31, 138–40, 144, 146–55, 157, 158, 164, 178, 180, 191, 198, 199, 208, 214, 216–20, 223, 222 Charter 28, 29, 114, 140, 146, 148, 149, 155, 157–58, 164, 216 Committee on Economic Social and ­Cultural Rights (cescr) 65–66 immunity 41, 45, 85–87, 146, 198 International Law Commission (ilc) 1, 2, 3, 8, 25, 37–40, 42, 45, 57, 66, 72, 73, 76, 80, 82, 83, 87, 89, 93, 99, 106, 110, 116, 118, 119, 121, 126, 137, 162, 172, 180, 186–87, 190, 194, 195, 200, 203–5, 210, 219

232 United Nations (cont.) legal personality 30, 164 Ombudsperson 44, 70, 141–42, 146, 147 Sanctions Committee 44, 70, 141–43, 208 Secretary-General 147 un Environment Programme (unep) 24 un General Assembly 11, 18, 24, 37–38, 77, 163 un Security Council 1, 19, 21, 26, 29, 31, 36–37, 44, 68, 70, 77, 122, 125, 134, 139, 140–43, 145–52, 154, 155, 157–58, 208, 213, 216–17 un specialised agencies 11, 29, 54 Union of South American Nations 36 United States 16, 28, 31, 53, 54, 120, 130, 131, 136, 166, 179, 196

Index Universal Postal Union 24, 36 Universal Declaration of Human Rights 24, 63, 143 vicarious responsibility 138, 211, 222 Vienna Convention on the Law of Treaties 15, 16, 22, 75–76 Wehberg 193–94, 209 Western European Union 24 World Health Organisation (who) World Health Assembly 24 World Bank 24, 36, 44, 54, 68–69 Inspection Panel 44, 69 World Meteorological Organization 24 World Trade Organization (wto) 25, 28, 29, 160, 166, 169, 176, 196, 200, 202, 204, 209