This panel was convened at 10:45 a.m., Friday, March 25, by its moderator, Blanca Montejo of the United Nations, Office of Legal Affairs, who introduced the panelists: Jose E. Alvarez of New York University School of Law; Vera Gowlland-Debbas of the University of Geneva; Maurizio Ragazzi of the World Bank; and Daphna Schraga of the United Nations, Office of Legal Affairs.
INTRODUCTORY REMARKS BY BLANCA MONTEJO
The topic of this panel has drawn much attention over the last decade due to two particularly relevant events: first, the International Law Commission's (ILC) decision to include the topic of the responsibility of international organizations in its long-term program of work together with the launching by the 1LC of the project of Draft Articles on the Responsibility of International Organizations in the year 2002 (Draft Articles), and second, the 2007 decision of the European Court of Human Rights in the Behrami and Saramati cases (1) in the context of which the Court made reference to the Draft Articles.
THE DRAFT ARTICLES
The history of the project dates back to 2000, when the ILC included the topic of the responsibility of international organizations in its long-term program after the conclusion of the Draft Articles on State Responsibility. Following that decision, in 2002 the Commission appointed Professor Giorgio Gaja as Special Rapporteur.
In elaborating the Draft Articles, the Commission largely followed the model of the Articles on State Responsibility. Such methodology, together with the absence of practice, has generated a great deal of controversy with respect to certain provisions, to the extent it has been argued that international organizations are characterized, unlike states, by the principle of speciality and that a "one size fits all approach" was ill-suited for international organizations.
Since 2002, the work of the Commission has moved rapidly, and in its last session in 2009, the Commission adopted on first reading a set of 66 Draft Articles which were transmitted to governments and international organizations for final comments and observations. Those comments were submitted at the beginning of 2011. The second reading of the Draft Articles has already commenced and is expected to be completed sometime in the summer of 2011.
BEHRAMI AND SARAMATI
Part of the controversy was triggered by the reading of the Draft Articles by the European Court of Human Rights in Behrami and Saramati. In those cases, the Court found that the conduct in question (i.e., the de-mining (or rather the failure to de-mine) of a particular area in Kosovo and the detention of Mr. Saramati) was in principle attributable to the United Nations and not to the respondent states. This was because, according to the Court, the Security Council retained "ultimate" authority and control pursuant to Security Council Resolution 1244. (2) In his commentary to the Draft Articles, the Special Rapporteur indicated that, when applying the criterion of effective control, "'operational' control would seem more significant than 'ultimate' control, since the latter hardly implied a role in the act in question." As it seems, a gap emerged between the Court's reading of the Draft Articles and the Commission's own intent when drafting them.
Be it as it may, the decision of the Court paved the way for other courts at the national level to analyze the roles and, in that context, the responsibilities of international organizations. Moreover, the decision of the Court has initiated relevant jurisprudence on the responsibility of international organizations as a new body of international law emphasizing the importance of the work of the Commission, as well as the potentially significant impact that the work currently being undertaken will have on the future work and policies of international organizations.
The topic of the responsibility of international organizations has therefore made the leap from the realm of the purely academic discussion to the very tangible and practical consequences that the Draft Articles will have for international organizations. Indeed, the decision of the Court has raised serious concerns with respect to operations undertaken by member states under the auspices of Security Council resolutions, since the particular reading by the European Court of Human Rights has exposed the United Nations to claims arising from operations in respect of which it has no "effective control." In this respect, some have argued that while it seems fair for international organizations to assume responsibility in respect of acts for which they are responsible in the performance of their roles, a question arises as to whether responsibility should be attributed to international organizations in certain cases for acts with respect to which they have no demonstrable control.
Reaching the right balance constitutes a challenge. In light of this context, the purpose of this panel is, therefore, to analyze the current status as well as the future of the law of the responsibility of international organizations.
BLANCA MONTEJO, Legal Officer, General Legal Division, Office of Legal Affairs, United Nations. Any views expressed in these remarks are those of the author and do not necessarily reflect the opinions of the Office of Legal Affairs or of the United Nations.
(1) Behrami v. France, Saramati v. France, Joined App. Nos. 71412/01 & 78166/01 (Cur. Ct. H.R. May 2, 2007).
(2) The Court concluded with regard to Saramati that KFOR (Kosovo Force) was exercising lawfully delegated Chapter VII powers of the Security Council, so that the detention of Mr. Saramati was in principle attributable to the United Nations. Similarly, with the failure to de-mine in Behrami, the Court noted that despite the facts on the ground, UNMIK (United Nations Interim Administration Mission in Kosovo) and not KFOR had a mandate to demine and as such was a subsidiary organ of the UN, so that the failure to de-mine was also in principle "attributable" to the UN.
REVISITING THE ILC's DRAFT RULES ON INTERNATIONAL ORGANIZATION RESPONSIBILITY
By Jose E. Alvarez
From my perspective, the ILC's decision to undertake this topic and to use as its model its prior Articles of State Responsibility (ASR) was, from the start, a miscalculation. (1a) Its set of 66 articles, adopted on first reading in 2009, has not alleviated my concerns. The project continues to suffer from over-ambition. The ILC's Draft Articles extend not only to the responsibilities of international organizations, as their title suggests, but also to a subject deliberately left out of the original Articles on State Responsibility: the responsibilities of states in connection with acts that they commit within international organizations. (2) The articles' broad ambit continues to apply to all "international" (not just "intergovernmental") organizations, whether established by treaty or by "any other instrument governed by international law," and applies to non-state parties "through whom the organization acts" (Article 2). The articles therefore cover entities as distinct in function as the United Nations specialized agencies, international financial institutions, the World Trade Organization, the Organization for Security and Co-operation in Europe, the Organization of the Petroleum Exporting Countries, and even international courts (such as the Special Tribunal for Lebanon or the International Criminal Court)--as well as the thousands of private contractors and non-governmental organizations "through whom" these international organizations act. The articles also anticipate international organizations and state responsibility for both the actions and their omissions of international organizations (Article 4).
The 66 Draft Articles continue to be modeled on the ASR in structure and language, (3) on the assumption that absent demonstrable practice to the contrary (which the ILC acknowledges is scarce with respect to most issues covered), the ASR should presumably apply since international organizations are also "subjects" of international law. The Draft Articles presume that primary rules of obligation apply to international organizations (see Article 4's bare-bones description of an "international wrongful act" as applied to international organizations), and that these rules delineate, as do the ASR, only "secondary" rules. The 1LC does not anticipate that its articles will be formally adopted as a treaty. It appears to assume, probably correctly, (4) that its efforts will be influential even if only incorporated in the course of an approving General Assembly resolution (as was the case for the ASR).
The 66 articles continue to suffer from five general problems.
Lack of evident state practice with respect to the presumed primary rules, as well as with respect to the ILC's proposed secondary rules. As is clear from the responses given by international organizations (mostly recently by the United Nations Office of Legal Affairs) and by states, with the exception of a few pockets of specialized international organization practice (e.g., United Nations peacekeeping, the responsibility of European Union institutions, claims by international organization employees under internal international organization administrative law), there are relatively few instances of claims against international organizations or against states based on their international organization activities. Whereas the ASR was mostly a codification exercise, this appears to be mostly "progressive" development based substantially on dicta in a small number of judicial decisions, including ICJ advisory opinions, as well as scholarly writings. (5) The lack of practice here is not because international organizations are incapable of doing wrong. It reflects uncertainties about which primary rules (e.g., which part of the human rights covenants?) apply to international organizations, and about whether which international organizations, if...