Draft articles on the responsibility of international organizations, with commentaries 2011



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Draft articles on the responsibility of international organizations, with commentaries

2011




Copyright © United Nations
2011
Responsibility of international organizations

General commentary

(1) In 2001 the International Law Commission adopted a set of articles on the responsibility of States for internationally wrongful acts. As stated in those articles, they “are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization” (art. 57). Given the number of existing international organizations and their ever increasing functions, these issues appeared to be of particular importance. Thus the Commission decided in 2002 to pursue its work for the codification and the progressive development of the law of international responsibility by taking up the two questions that had been left without prejudice in article 57 on State responsibility. The present draft articles represent the result of this further study. In conducting the study the Commission has been assisted by the comments and suggestions received from States and international organizations.

(2) The scope of application of the present draft articles reflects what was left open in article 57 on State responsibility. Most of the present draft articles consider the first issue that was mentioned in that provision: the responsibility of an international organization for an act which is internationally wrongful. Only a few draft articles, mainly those contained in Part Five, consider the second issue: the responsibility of a State for the conduct of an international organization. The second issue is closely connected with the first one because the conduct in question of an international organization will generally be internationally wrongful and entail the international responsibility of the international organization concerned. However, under certain circumstances which are considered in articles 60 and 61 and the related commentaries, the conduct of an international organization may not be wrongful and no international responsibility would arise for that organization.

(3) In addressing the issue of responsibility of international organizations, the present draft articles follow the same approach adopted with regard to State responsibility. The draft articles thus rely on the basic distinction between primary rules of international law, which establish obligations for international organizations, and secondary rules, which consider the existence of a breach of an international obligation and its consequences for the responsible international organization. Like the articles on State responsibility, the present draft articles express secondary rules. Nothing in the draft articles should be read as implying the existence or otherwise of any particular primary rule binding on international organizations.

(4) While the present draft articles are in many respects similar to the articles on State responsibility, they represent an autonomous text. Each issue has been considered from the specific perspective of the responsibility of international organizations. Some provisions address questions that are peculiar to international organizations. When in the study of the responsibility of international organizations the conclusion is reached that an identical or similar solution to the one expressed in the articles on State responsibility should apply with respect to international organizations, this is based on appropriate reasons and not on a general presumption that the same principles apply.

(5) One of the main difficulties in elaborating rules concerning the responsibility of international organizations is due to the limited availability of pertinent practice. The main reason for this is that practice concerning responsibility of international organizations has developed only over a relatively recent period. One further reason is the limited use of procedures for third-party settlement of disputes to which international organizations are parties. Moreover, relevant practice resulting from exchanges of correspondence may not be always easy to locate, nor are international organizations or States often willing to disclose it. The fact that several of the present draft articles are based on limited practice moves the border between codification and progressive development in the direction of the latter. It may occur that a provision in the articles on State responsibility could be regarded as representing codification, while the corresponding provision on the responsibility of international organizations is more in the nature of progressive development. In other words, the provisions of the present draft articles do not necessarily yet have the same authority as the corresponding provisions on State responsibility. As was also the case with the articles on State responsibility, their authority will depend upon their reception by those to whom they are addressed.

(6) The commentaries on the articles of State responsibility are generally more extensive, reflecting the greater availability of practice. When the wording of one of the present draft articles is similar or identical to an article on State responsibility, the commentary of the former will give the reasons for its adoption and the essential explanations. In so far as provisions of the present draft articles correspond to those of the articles on State responsibility, and there are no relevant differences between organizations and States in the application of the respective provisions, reference may also be made, where appropriate, to the commentaries on the latter articles.

(7) International organizations are quite different from States, and in addition present great diversity among themselves. In contrast with States, they do not possess a general competence and have been established in order to exercise specific functions (“principle of speciality”). There are very significant differences among international organizations with regard to their powers and functions, size of membership, relations between the organization and its members, procedures for deliberation, structure and facilities, as well as the primary rules including treaty obligations by which they are bound. Because of this diversity and its implications, the draft articles where appropriate give weight to the specific character of the organization, especially to its functions, as for instance article 8 on excess of authority or contravention of instructions. The provision on lex specialis (art. 64) has particular importance in this context. Moreover, the diversity of international organizations may affect the application of certain articles, some of which may not apply to certain international organizations in the light of their powers and functions.

(8) Certain special rules on international responsibility may apply in the relations between an international organization and its members (art. 64). These rules are specific to each organization and are usually referred to as rules of the organization. They include the constituent instrument of the organization and the rules flowing from it (art. 2). The present draft articles do not attempt to identify these special rules, but do consider the impact that they may have on the international responsibility of the organization towards its members and on the responsibility of members for the conduct of the organization. The rules of the organization do not per se bind non-members. However, some rules of the organization may be relevant also for non-members. For instance, in order to establish whether an international organization has expressed its consent to the commission of a given act (art. 20), it may be necessary to establish whether the organ or agent which gives its consent is competent to do so under the rules of the organization.

(9) The present draft articles are divided into Six Parts. Part One defines the scope of the articles and gives the definition of certain terms. Parts Two to Four (arts. 3 to 57) follow the general lay-out of the articles on State responsibility. Part Two sets forth the preconditions for the international responsibility of an international organization to arise. Part Three addresses the legal consequences flowing for the responsible organization, in particular the obligation to make reparation. Part Four concerns the implementation of responsibility of an international organization, especially the question of which States or international organizations are entitled to invoke that responsibility. Part Five addresses the responsibility of States in connection with the conduct of an international organization. Finally, Part Six contains certain general provisions applicable to the whole set of draft articles.

Part One
Introduction

Article 1


Scope of the present draft articles

1. The present draft articles apply to the international responsibility of an international organization for an internationally wrongful act.

2. The present draft articles also apply to the international responsibility of a State for an internationally wrongful act in connection with the conduct of an international organization.

Commentary

(1) The definition of the scope of the draft articles in article 1 is intended to be as comprehensive and accurate as possible. While article 1 covers all the issues that are to be addressed in the following articles, this is without prejudice to any solution that will be given to those issues. Thus, for instance, the reference in paragraph 2 to the international responsibility of a State in connection with the conduct of an international organization does not imply that such a responsibility will be held to exist.

(2) For the purposes of the draft articles, the term “international organization” is defined in article 2. This definition contributes to delimiting the scope of the draft articles.

(3) An international organization’s responsibility may be asserted under different systems of law. Before a national court, a natural or legal person will probably invoke the organization’s responsibility or liability under some municipal law. The reference in paragraph 1 of article 1 and throughout the draft articles to international responsibility makes it clear that the draft articles only take the perspective of international law and consider whether an international organization is responsible under that law. Thus, issues of responsibility or liability under municipal law are not as such covered by the draft articles. This is without prejudice to the possible applicability of certain principles or rules of international law when the question of an organization’s responsibility or liability arises under municipal law.

(4) Paragraph 1 of article 1 concerns the cases in which an international organization incurs international responsibility. The most frequent case will be that of the organization committing an internationally wrongful act. However, there are other instances in which an international organization’s responsibility may arise. One may envisage, for example, cases analogous to those referred to in Chapter IV of Part One of the articles on the responsibility of States for internationally wrongful acts.36 An international organization may thus be held responsible if it aids or assists a State or another organization in committing an internationally wrongful act, or if it directs and controls a State or another organization in the commission of such an act, or if it coerces a State or another organization to commit an act that would, but for the coercion, be an internationally wrongful act. Another case in which an international organization may be held responsible is that of an internationally wrongful act committed by another international organization of which the first organization is a member.

(5) The reference in paragraph 1 to acts that are wrongful under international law implies that the present draft articles do not address the question of liability for injurious consequences arising out of acts not prohibited by international law. The choice made by the Commission to separate, with regard to States, the question of liability for acts not prohibited by international law from the question of international responsibility prompts a similar choice in relation to international organizations. Thus, as in the case of States, international responsibility is linked with a breach of an obligation under international law. International responsibility may thus arise from an activity that is not prohibited by international law only when a breach of an obligation under international law occurs in relation to that activity, for instance if an international organization fails to comply with an obligation to take preventive measures in relation to an activity that is not prohibited.

(6) Paragraph 2 includes within the scope of the present draft articles some issues that have been identified, but not dealt with, in the articles on responsibility of States for internationally wrongful acts. According to article 57 of those articles:

“[they] are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization”.37

The main question that was left out in the articles on responsibility of States for internationally wrongful acts, and that is considered in the present draft articles, is the issue of the responsibility of a State which is a member of an international organization for a wrongful act committed by the organization.

(7) The wording of Chapter IV of Part One of the articles on the responsibility of States for internationally wrongful acts only refers to the cases in which a State aids or assists, directs and controls, or coerces another State.38 Should the question of similar conduct by a State with regard to an international organization not be regarded as covered, at least by analogy, in the articles on responsibility of States for internationally wrongful acts, the present draft articles fill the resulting gap.

(8) Paragraph 2 does not include questions of attribution of conduct to a State, whether an international organization is involved or not. Chapter II of Part One of the articles on the responsibility of States for internationally wrongful acts deals, albeit implicitly, with attribution of conduct to a State when an international organization or one of its organs acts as a State organ, generally or only under particular circumstances. Article 4 refers to the “internal law of the State” as the main criterion for identifying State organs, and internal law will rarely include an international organization or one of its organs among State organs. However, article 4 does not consider the status of such organs under internal law as a necessary requirement.39 Thus, an organization or one of its organs may be considered as a State organ under article 4 also when it acts as a de facto organ of a State. An international organization may also be, under the circumstances, as provided for in article 5, a “person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority”.40 Article 6 then considers the case in which an organ is “placed at the disposal of a State by another State”.41 A similar eventuality, which may or may not be considered as implicitly covered by article 6, could arise if an international organization places one of its organs at the disposal of a State. The commentary on article 6 notes that this eventuality “raises difficult questions of the relations between States and international organizations”.42 International organizations are not referred to in the commentaries on articles 4 and 5. While it appears that all questions of attribution of conduct to States are nevertheless within the scope of the responsibility of States for internationally wrongful acts, and should therefore not be considered anew, some aspects of attribution of conduct to either a State or an international organization will be further elucidated in the discussion of attribution of conduct to international organizations.

(9) The present draft articles deal with the symmetrical question of a State or a State organ acting as an organ of an international organization. This question concerns the attribution of conduct to an international organization and is therefore covered by paragraph 1 of article 1.

(10) The present draft articles do not address issues relating to the international responsibility that a State may incur towards an international organization. Although the articles on the responsibility of States for internationally wrongful acts do not mention international organizations when considering circumstances precluding wrongfulness, the content of international responsibility or the invocation of the international responsibility of a State, they may be applied by analogy also to the relation between a responsible State and an international organization. When, for instance, article 20 sets forth that “[v]alid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent”,43 the provision may be understood as covering by analogy also the case where a valid consent to the commission of the act of the State is given by an international organization.

Article 2
Use of terms

For the purposes of the present draft articles,

(a) “international organization” means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;

(b) “rules of the organization” means, in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization;

(c) “organ of an international organization” means any person or entity which has that status in accordance with the rules of the organization;

(d) “agent of an international organization” means an 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.

Commentary

(1) The definition of “international organization” given in article 2, subparagraph (a), is considered as appropriate for the purposes of the present draft articles and is not intended as a definition for all purposes. It outlines certain common characteristics of the international organizations to which the following articles apply. The same characteristics may be relevant for purposes other than the international responsibility of international organizations.

(2) The fact that an international organization does not possess one or more of the characteristics set forth in article 2, subparagraph (a), and thus is not within the definition for the purposes of the present articles, does not imply that certain principles and rules stated in the following articles do not apply also to that organization.

(3) Starting with the Vienna Convention on the Law of Treaties of 23 May 1969,44 several codification conventions have succinctly defined the term “international organization” as “intergovernmental organization”.45 In each case the definition was given only for the purposes of the relevant convention and not for all purposes. The text of some of these codification conventions added some further elements to the definition: for instance, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986 only applies to those intergovernmental organizations which have the capacity to conclude treaties.46 No additional element would be required in the case of international responsibility apart from possessing an obligation under international law. However, the adoption of a different definition is preferable for several reasons. First, it is questionable whether by defining an international organization as an intergovernmental organization one provides much information: it is not even clear whether the term “intergovernmental organization” refers to the constituent instrument or to actual membership. Second, the term “intergovernmental” is in any case inappropriate to a certain extent, because several important international organizations have been established with the participation also of State organs other than governments. Third, an increasing number of international organizations include among their members entities other than States as well as States; the term “intergovernmental organization” might be thought to exclude these organizations, although with regard to international responsibility it is difficult to see why one should reach solutions that differ from those applying to organizations of which only States are members.

(4) Most international organizations are established by treaties. Thus, a reference in the definition to treaties as constituent instruments reflects prevailing practice. However, forms of international cooperation are sometimes established without a treaty. In certain cases, for instance with regard to the Nordic Council, a treaty was subsequently concluded.47 In order to cover organizations established by States on the international plane without a treaty, article 2 refers, as an alternative to treaties, to any “other instrument governed by international law”. This wording is intended to include instruments, such as resolutions adopted by an international organization or by a conference of States. Examples of international organizations that have been so established include the Pan American Institute of Geography and History (PAIGH),48 and the Organization of the Petroleum Exporting Countries (OPEC).49

(5) The reference to “a treaty or other instrument governed by international law” is not intended to exclude entities other than States from being regarded as members of an international organization. This is unproblematic with regard to international organizations which, so long as they have a treaty-making capacity, may well be a party to a constituent treaty. The situation is likely to be different with regard to entities other than States and international organizations. However, even if the entity other than a State does not possess treaty-making capacity or cannot take part in the adoption of the constituent instrument, it may be accepted as a member of the organization if the rules of that organization so provide.

(6) The definition in article 2 does not cover organizations that are established through instruments governed by municipal law, unless a treaty or other instrument governed by international law has been subsequently adopted and has entered into force.50 Thus the definition does not include organizations such as the World Conservation Union (IUCN), although over 70 States are among its members,51 or the Institut du Monde Arabe, which was established as a foundation under French law by 20 States.52

(7) Article 2 also requires the international organization to possess “international legal personality”. The acquisition of legal personality under international law does not depend on the inclusion in the constituent instrument of a provision such as Article 104 of the United Nations Charter, which reads as follows:

“The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.”

The purpose of this type of provision in the constituent instrument is to impose on the member States an obligation to recognize the organization’s legal personality under their internal laws. A similar obligation is imposed on the host State when a similar text is included in the headquarters agreement.53

(8) The acquisition by an international organization of legal personality under international law is appraised in different ways. According to one view, the mere existence for an organization of an obligation under international law implies that the organization possesses legal personality. According to another view, further elements are required. While the International Court of Justice has not identified particular prerequisites, its dicta on the legal personality of international organizations do not appear to set stringent requirements for this purpose. In its advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt the Court stated:

“International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.”54

In its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the Court noted:

“The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence.”55

While it may be held that, when making both these statements, the Court had an international organization of the type of the World Health Organization (WHO) in mind, the wording is quite general and appears to take a liberal view of the acquisition by international organizations of legal personality under international law.

(9) In the passages quoted in the previous paragraph, and more explicitly in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations,56 the Court appeared to favour the view that when legal personality of an organization exists, it is an “objective” personality. Thus, it would not be necessary to enquire whether the legal personality of an organization has been recognized by an injured State before considering whether the organization may be held internationally responsible according to the present articles.

(10) The legal personality of an organization which is a precondition of the international responsibility of that organization needs to be “distinct from that of its member States”.57 This element is reflected in the requirement in article 2, subparagraph (a), that the international legal personality should be the organization’s “own”, a term that the Commission considers as synonymous with the phrase “distinct from that of its member States”. The existence for the organization of a distinct legal personality does not exclude the possibility of a certain conduct being attributed both to the organization and to one or more of its members or to all its members.

(11) The second sentence of article 2, subparagraph (a), seeks first of all to emphasize the role that States play in practice with regard to all the international organizations which are covered by the present articles. This key role was expressed by the International Court of Justice, albeit incidentally, in its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, in the following sentence:

“International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.”58

Many international organizations have only States as members. In other organizations, which have a different membership, the presence of States among the members is essential for the organization to be considered in the present articles.59 This requirement is intended to be conveyed by the words “in addition to States”.

(12) The fact that paragraph (a) considers that an international organization “may include as members, in addition to States, other members” does not imply that a plurality of States as members is required. Thus an international organization may be established by a State and another international organization. Examples may be provided by the Special Court for Sierra Leone60 and the Special Tribunal for Lebanon.61

(13) The presence of States as members may take the form of participation as members by individual State organs or agencies. Thus, for instance, the Arab States Broadcasting Union, which was established by a treaty, lists “broadcasting organizations” as its full members.62

(14) The reference in the second sentence of article 2, subparagraph (a), to entities other than States — such as international organizations,63 territories64 or private entities65 — as additional members of an organization points to a significant trend in practice, in which international organizations increasingly tend to have a mixed membership in order to make cooperation more effective in certain areas.

(15) International organizations within the scope of the present articles are significantly varied in their functions, type and size of membership and resources. However, since the principles and rules set forth in the articles are of a general character, they are intended to apply to all these international organizations, subject to special rules of international law that may relate to one or more international organizations. In the application of these principles and rules, the specific, factual or legal circumstances pertaining to the international organization concerned should be taken into account, where appropriate. It is clear, for example, that most technical organizations are unlikely to be ever in the position of coercing a State, or that the impact of a certain countermeasure is likely to vary greatly according to the specific character of the targeted organization.

(16) The definition of “rules of the organization” in subparagraph (b) is to a large extent based on the definition of the same term that is included in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations and between International Organizations.66 Apart from a few minor stylistic changes, the definition in subparagraph (b) differs from the one contained in that codification convention only because it refers, together with “decisions” and “resolutions”, to “other acts of the organization”. This addition is intended to cover more comprehensively the great variety of acts that international organizations adopt. The words “in particular” have nevertheless been retained, since the rules of the organization may also include such instruments as agreements concluded by the organization with third parties and judicial or arbitral decisions binding the organization. For the purpose of attribution of conduct, decisions, resolutions and other acts of the organization are relevant, whether they are regarded as binding or not, insofar as they give functions to organs or agents in accordance with the constituent instruments of the organization. The latter instruments are referred to in the plural, consistently with the wording of the Vienna Convention,67 although a given organization may well possess a single constituent instrument.

(17) One important feature of the definition of “rules of the organization” in subparagraph (b) is that it gives considerable weight to practice. The influence that practice may have in shaping the rules of the organization was described in a comment by NATO, which noted that NATO was an organization where “the fundamental internal rule governing the functioning of the organization — that of consensus decision-making — is to be found neither in the treaties establishing NATO nor in any formal rules and is, rather, the result of the practice of the organization”.68

(18) The definition seeks to strike a balance between the rules enshrined in the constituent instruments and formally accepted by the members of the organization, on the one hand, and the need for the organization to develop as an institution, on the other hand. As the International Court of Justice said in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations:

“Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.”69

(19) The definition of “rules of the organization” is not intended to imply that all the rules pertaining to a given international organization are placed at the same level. The rules of the organization concerned will provide, expressly or implicitly, for a hierarchy among the different kinds of rules. For instance, the acts adopted by an international organization will generally not be able to derogate from its constituent instruments.

(20) A definition of the term “organ [of the organization]” is given in subparagraph (c). International organizations show a variety of approaches with regard to the use of this term. Some constituent instruments contain a list of organs, which may be more or less wide,70 while in the rules of certain other organizations the term “organ” is not used.

(21) Notwithstanding this variety of approaches, it is preferable not to adopt a uniform definition which would be at odds with the rules of various organizations. The different scope that the term “organ” may have according to the rules of the organization concerned does not affect attribution of conduct to the organization, given the fact that also the conduct of agents is attributed to the organization according to article 6. Thus, subparagraph (c) refers to the rules of the organization and considers that an organ is “any person or entity which has that status according to the rules of the organization”.

(22) The definition in subparagraph (c) is similar to the one of organ of State, which is given in Article 4, paragraph 2, of the articles on the responsibility of States for internationally wrongful acts. According to this text, “[a]n organ includes any person or entity which has that status in accordance with the internal law of the State”. Subparagraph (c) leaves it to the international organization concerned to define its own organs.

(23) Subparagraph (d) provides a definition of the term “agent” which is based on a passage in the advisory opinion of the International Court of Justice on Reparation for Injuries Suffered in the Service of the United Nations. When considering the capacity of the United Nations to bring a claim in case of an injury, the Court said:

“The Court understands the word ‘agent’ in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions – in short, any person through whom it acts.”71

(24) When the Court referred to one of the functions of the organization, it did not exclude that the agent be charged with carrying out, or helping to carry out, more than one function. The reference to “one of its functions” in subparagraph (d) should be understood in the same way.

(25) International organizations do not act only through natural persons, whether officials or not. Thus, the definition of “agent” also covers all the entities through whom the organization acts.

(26) The definition of “agent” is of particular relevance to the question of attribution of conduct to an international organization. It is therefore preferable to develop the analysis of various aspects of this definition in the context of attribution, especially in article 6 and the related commentary.

(27) In order to avoid a possible overlap between the definition of “organ of an international organization” and that of “agent of an international organization”, the latter phrase only covers persons or entities which do not come within the definition under subparagraph (c).

Part Two
The internationally wrongful act of an international organization

Chapter I


General principles

Article 3


Responsibility of an international organization for its internationally wrongful acts

Every internationally wrongful act of an international organization entails the international responsibility of that organization.

Commentary

(1) The general principle, as stated in article 3, applies to whichever entity commits an internationally wrongful act. The same may be said of the principle stated in article 4.72 The formulation of article 3 is modelled on that applicable to States according to the articles on the responsibility of States for internationally wrongful acts. There seems to be little reason for formulating these principles in another manner. It is noteworthy that in a report on peacekeeping operations the United Nations Secretary-General referred to:

“the principle of State responsibility — widely accepted to be applicable to international organizations — that damage caused in breach of an international obligation and which is attributable to the State (or to the Organization) entails the international responsibility of the State (or of the Organization) [...]”.73

(2) The wording of article 3 is identical to that of article 1 of the articles on the responsibility of States for internationally wrongful acts, but for the replacement of the word “State” with “international organization”.

(3) When an international organization commits a wrongful act, its responsibility is entailed. One may find a statement of this principle in the advisory opinion of the International Court of Justice on Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, in which the Court said:

“[...] the Court wishes to point out that the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity.

“The United Nations may be required to bear responsibility for the damage arising from such acts.”74

(4) The meaning of international responsibility is not defined in article 3, nor is it in the corresponding provisions of the articles on responsibility of States for internationally wrongful acts. There the consequences of an internationally wrongful act are dealt with in Part Two of the text, which concerns the “content of the international responsibility of a State”.75 Also in the present draft articles the content of international responsibility is addressed in further articles (Part Three).

(5) Neither for States nor for international organizations is the legal relationship arising out of an internationally wrongful act necessarily bilateral. The breach of the obligation may well affect more than one subject of international law or the international community as a whole. Thus in appropriate circumstances more than one subject may invoke, as an injured subject or otherwise, the international responsibility of an international organization.

(6) The fact that an international organization is responsible for an internationally wrongful act does not exclude the existence of parallel responsibility of other subjects of international law in the same set of circumstances. For instance, an international organization may have cooperated with a State in the breach of an obligation imposed on both. Another example may be that of conduct which is simultaneously attributed to an international organization and a State and which entails the international responsibility of both the organization and the State.

Article 4
Elements of an internationally wrongful act of an international organization

There is an internationally wrongful act of an international organization when conduct consisting of an action or omission:

(a) is attributable to that organization under international law; and

(b) constitutes a breach of an international obligation of that organization.

Commentary

(1) Article 4 expresses with regard to international organizations a general principle that applies to every internationally wrongful act, whoever its author. As in the case of States, the attribution of conduct to an international organization is one of the two essential elements for an internationally wrongful act to occur. The term “conduct” is intended to cover both acts and omissions on the part of the international organization. The rules pertaining to attribution of conduct to an international organization are set forth in Chapter II.

(2) A second essential element, to be examined in Chapter III, is that conduct constitutes the breach of an obligation under international law. The obligation may result either from a treaty binding the international organization or from any other source of international law applicable to the organization. As the International Court of Justice noted in its advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, international organizations

“are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties”.76

A breach is thus possible with regard to any of these international obligations.

(3) Again as in the case of States, damage does not appear to be an element necessary for international responsibility of an international organization to arise. In most cases an internationally wrongful act will entail material damage. However, it is conceivable that the breach of an international obligation occurs in the absence of any material damage. Whether the damage will be required or not depends on the content of the primary obligation.


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