June 13, 2011 ; by Kristen Boon
The International Law Commission (ILC) has adopted the Draft Articles on the Responsibility of International Organizations (RIO). The final version of the articles is available on the ILC’s website. As the Chairman of the Drafting Committee noted, the adoption of these articles marks a historic occasion as the ILC has been working on the law of responsibility for over 60 years. The ILC is expected to adopt the commentaries to the Articles in August, 2011. Both the text and commentaries will be sent to the GA in October 2011 for action.
Skeptics of the ILC’s project will quickly see that the final version of the RIO articles is similar to the version released after the ILC’s first reading in 2010. Indeed, the structure, coverage and ultimately the implications of the Draft Articles remain largely unchanged. For an analysis of the criticisms and the implications of the Draft Articles, see my YJIL on-line article here.
(options available to IOs that are not happy about the Draft)
The ILC’s decision to stay the course will no doubt be of concern to the many IOs that have expressed displeasure with earlier versions of the Articles. At this juncture, IOs are left with few options: (i) they could contract around the draft articles and take advantage of the provision on lex specialis, allowing their rules to take precedence over the residual rules of responsibility; (ii) they might make use of the many critical IO comments submitted to the ILC to argue that the Articles are not binding (as customary law), or (iii) they could try to lobby States to speak out against the Draft Articles before they get to the GA. If a treaty were being proposed, IOs might have been able to control the application of the Articles by proposing a special sign-on process, as they did with the Treaty on Privileges and Immunities of 1946. As it stands now, no treaty is on the books, and hence no such option is available to them.
For those who have been following the maturation of the Draft Articles, there are some developments of note in this final version.
First, the Articles now include this definition of organ: “any person or entity which has that status in accordance with the rules of the organization.” The definition of Agent changed slightly, and now reads: “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.” This more expansive definition brings it in line with the approach of the ICJ in the Advisory Opinion on Reparation for Injuries.
Second, a new Article 5 establishes that “the characterization of an act of an international organization as internationally wrongful is governed by international law.” This provision was added to clarify that international law determines whether an act of an IO is wrongful or not. Prior versions were ambiguous as to the role of the “rules of the organization” in determining wrongfulness.
(imputability = attributable)
Article 17 has been restructured. This interesting article lays the basis for responsibility of IOs that either adopt binding decisions or non-binding authorizations on member states or other IOs. The inclusion of “authorizations” is significant, as it shows how states that operate through IOs may become indirectly responsible for the acts of an IO.
Finally, more detailed criteria have been added to the countermeasures regime in Articles 22 and 52, 53 & 57.
The implications of the Draft Articles are not to be underestimated. They will affect states operating through IOs, as well as IOs directly.
Although they don’t create a forum to sue IOs, or even a way to work around the extensive privileges and immunities of IOs, they do set new baselines with regards to the consequences of wrongful actions, including the rules of attribution and the standard for reparations (”full” reparations in the words of the Draft Articles).
Like the State Responsibility articles before them however, only states and IO have the right of invocation under Article 43. The extension of responsibility to IOs might be seen as a step in the right direction in the broader movement of “accountability”, but the fact that individuals are subordinated to a system limited to states and IOs dates (and limits) them considerably.
