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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part V The Implementation of International Responsibility, Ch.66 Invocation of Responsibility by International Organizations

Eglantine Cujo

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 June 2019

Subject(s):
Responsibility of international organizations — Wrongful acts — Responsibility of states — Countermeasures

(p. 969) Chapter 66  Invocation of Responsibility by International Organizations

The issue of the invocation of international responsibility by international organizations is complex and was long-neglected by codification projects, case law, and doctrine. Article 33(2) ARSIWA reserves the possibility of rights arising from the international responsibi lity of a State which might accrue directly to any person or entity other than a State. The ILC subsequently considered the issue of invocation of responsibility by international organizations in the context of codifying the responsibility of international organizations,1 albeit under the restrictive angle of invocation of the responsibility of another organization, and not of a State. The ILC has nevertheless considered that ARSIWA ‘can be applied by analogy also to the relationship between a responsible State and an international organization’.2 Although the question of passive responsibility of international organizations has been the subject of several studies,3 little attention has been given to the active responsibility of international organizations (with the exception of some aspects of practice of the European (p. 970) Community). It has been suggested that this question requires no consideration, since situations of active responsibility of international organizations ‘in any case hardly raise any difficulty anymore’.4 The question of the invocation of inter national responsibility by international organizations (whether it is against a member State, a third party State or another organization) nevertheless raises difficult questions and merits a thorough study. We will proceed here, following the distinction maintained by the ILC, by examining first the situation of the injured international organization, then that of the international organization having an interest in respect of the breached obligation.

The injured international organization

The invocation of international responsibility belongs to the injured subject, which has priority. We will therefore examine the issue of the quality of the injured international organization before considering the consequences which attach to it.

(a)  Injury to an international organization

As subjects of public international law, international organizations are holders of rights which another subject of international law may breach. In other words, and just as for States, whether an organization is an injured subject depends on the participation of the organization in a primary legal relationship. The possibility of injury to the rights of an organization presented itself very early,5 and was taken into account in the initial stages of the ILC work on the responsibility of States.6 It is becoming more relevant in practice because of the increasing activity of such organizations in international legal relations.

Nevertheless there are certain questions concerning the specific character of international organizations as subjects of international law. In the classic law on responsibility, a subject is considered as injured and entitled to invoke international responsibility when one of its rights has been denied or compromised by an internationally wrongful act or where it has been particularly affected by such an act.7 Consequently, classifying an international organization as injured in the sense that is understood in the law of responsibility implies that the organization has been the beneficiary of the breached obligation. This presupposes that an international organization can hold certain rights under international law. While this does not raise any difficulty in respect of States (hence ARSIWA does not attach great importance to the content of the international obligations the breach of which engages responsibility),8 in respect of international organizations the question arises as to whether the organization has competence to derive rights directly from international law. A few remarks must be made on this point.

The first issue is that the rights which pertain to the organization must be distinguished from those which attach to its members. In respect of rights belonging to the organization itself, it is clear that where these rights are infringed by a wrongful act, the organization (p. 971) will be an injured subject.9 The situation is sometimes relatively clear. It is clear where the breached obligation results from a bilateral treaty to which the organization is a party; it is also clear where the breached obligation concerns an area in respect of which the organization has exclusive competence (for example, breach of a commercial obligation which is owed to the EC); and it is clear where a breached obligation concerns an agent of the organization, ie ‘any person through whom it acts’,10 as the breach results in direct prejudice to the organization.11

On the other hand, some cases are more problematic. Above all, in a situation where an organization and its members are parties to a treaty in which the exact field of the respective competences of each is not clearly defined, it is not easy to determine to whom the breached obligations are owed. In contemporary practice that difficulty has generally been circumvented by obliging the organization or its Member States to make declarations as to the scope of their respective competencies for the information of third parties.12 Further, where the organization has succeeded its member States in the exercise of certain competences under a treaty there might be difficulties. Should the breach of rights which were initially held by the member States be considered as a breach of the rights of the organization? Where the succession is recognized by other parties to the agreement (as was the case at the time with GATT of 1947 where the Contracting Parties recognized and accepted the succession of the EEC to its members), the organization must be considered as injured by the breach. This is even more clear in situations of representation, ie where agreements are concluded by States on behalf of the organization to which they belong, since here the rights are owed to the organization from the very beginning.13

A second issue is whether the organization draws rights from its constitutive charter even though it is not, by definition, a party to it. Where member States of an international organization breach the constitutive treaty, do they breach an obligation owed to the organization or only one which they owe to other contracting parties? The latter seems the preferable interpretation: since the organization is not party to the primary legal relationship, it should not be considered as injured by a breach of the primary obligation. Herein lies the paradox (especially for so-called integrated organizations): the treaty creates the organization and yet the organization does not have rights corresponding to the obligations of State parties to comply with the terms of that instrument.14 Of course, the international organization certainly has an interest in respect for its constitutive treaty, but the recognition of an interest does not entail the attribution of a right.15 Furthermore, even though it is true that there are many defence mechanisms for norms which are under the care of an (p. 972) international organization,16 these are not based on a right which the organization draws from the law of responsibility, but are the result of competences attributed to the organization by the treaty. The organization must thus be considered as a third party and the law of treaties envisages expressly that, in such a situation, in order for a provision of a treaty to give rise to a right for the organization, the parties to the treaty must have intended, through this provision, to confer such a right and the organization must have consented.17 One may be surprised at the Commentary of the ILC on draft article 27 of the Draft Articles on the law of treaties between States and international organizations or between international organizations, according to which:

[a]n international organization may deny a contracting State the benefit of performance of a treaty if that State has committed a wrongful act against the organization, no matter whether that wrongful act consists in a breach of the treaty or of a general rule of international law, or in a breach of the rules of the organization if the State is also a member of the organization.18

Of course an organization’s rights may be infringed when a member State breaches any engagement directly between the organization and that member State (for example, the agreements under article 43 UN Charter). The organization’s rights may also be infringed by a member State where there is a breach by that State of its obligations towards the organization which concern an agent of that organization.19

Finally, another difficult situation must be mentioned: where the rights of member States are infringed. In this situation, and depending on the degree of integration of the organization, is the organization itself also injured? Opinion is divided on this point, but it appears that the organization would not be injured, since it is not party to the primary legal relationship.

(b)  Invocation of responsibility by an injured international organization

The identification of the injured subject is an element in the process of determining the legal consequences of an internationally wrongful act. Consequently, and as soon as the capacity of the international organization to be injured by an internationally wrongful act has been established, it has the right to invoke the international responsibility of another subject of law.20 The organization must be able to demand cessation of the act as well as reparation for the prejudice suffered (apart from the situation where the organization is not recognized by the third party State, in which case the possibility of invoking responsibility falls to the members of the organization). To do this, the organization may, as the ICJ indicated in 1949, resort to ‘the customary methods recognized by international law’ (protest, negotiation, arbitration, etc);21 the particular responses of the organization may vary.22 This flexibility can be seen in examples from practice: following harm caused to the property of the United Nations Emergency Force (p. 973) by members of military contingents, the UN Secretariat delivered an opinion in which it indicated that the issue of the recovery of indemnities owed for that harm could be settled on the international level directly between the UN and the government concerned.23 The clauses regulating the treatment of indemnification claims envisaged in the agreements between the EU and third party countries and concerning the status of forces under the direction of the EU may also be cited here.24

If the author of the internationally wrongful act does not fulfil its obligations of cessation or reparation, the question of the remedy of countermeasures through the organization must also be envisaged (it was also raised by Ago in his Eighth Report).25 Where the rights of the organization itself have been infringed, the doctrine suggests that the organization may resort to countermeasures to ensure that the responsible party puts an end to the wrongful act and repairs the harm.26 The work of the ILC on the responsibility of international organizations supports this approach.27

The use of countermeasures by an international organization is, in practice, relatively exceptional (with the exception of the EC in the commercial context). It nevertheless raises certain questions, especially because of the internal distribution of competences between the organization and its members which can result in a disparity between injured subject and the subject which adopts countermeasures (a situation which also highlights the artificial character of treating the responsibility of States and organizations separately). Since international organizations only have the competences which are attributed to them, where an organization has been injured it may be necessary for the member States to adopt countermeasures.28 This may be the case where the organization and its members jointly participate in a treaty or, more generally, there may be solidarity which bonds the organization to its member States.

Where both an organization and its member States are parties to a treaty, two scenarios may occur. The first is that the organization and its member States are considered as one and the same party (this is for example the case for certain cooperation agreements of the EC and its member States). Where there is a breach of an obligation which is owed both to the organization and to its member States, countermeasures may be taken in accordance with the internal rules of the organization (subject to the criterion of proportionality which could be difficult to fulfil depending on the reaction being that of the organization or of its member States). The second scenario is where the organization and its member States are recognized as distinct parties and where the obligations owed to them are not mixed. The situation of the EC and its member States at the WTO is interesting here, since the Memorandum of Agreement on the Settlement of Disputes expressly authorizes (p. 974) resort to countermeasures in a sector other than the one in which the breach occurred. The EC may be injured (for example by the institution of illegal subsidies applied to exports within the Community market), but the efficiency of the reaction may necessitate measures which are within the competence of member States. This substitution of one party by another cannot be contested where it has been accepted by the other members of the organization (and here special attention must be given to the criterion of proportionality of countermeasures). Nevertheless, opinion is divided on the issue. For some, the principle remains that the party entitled to respond is the injured party.29 For others, the organization must have capacity to invoke responsibility in all cases.30 Apart from this particular case, opinion is generally in support of the recognition of the competence of member States to obtain, by way of countermeasures, respect for the obligation by the subject whose wrongful act has injured the organization.31

The second scenario concerns the justification of a disjunction between the injured subject and the subject which seeks to obtain reparation or cessation of the wrongful act, having regard to the solidarity which can exist between the organization and its members. The idea that the organization may take countermeasures against a State whose wrongful act injures one of its member States is defended by some.32 It is nevertheless difficult to find a basis in law for this conclusion, except if it is accepted that the member States have transferred every competence to respond to the organization, which seems very unlikely, and that this situation is opposable to third parties. However, where there is an armed attack, the organization may be entitled to take countermeasures as a form of collective self-defence.

As far as the conditions for the resort to countermeasures are concerned, article 54 of the 2009 Draft Articles provides that the rules stated by the ILC in relation to the responsibility of States apply mutatis mutandis to countermeasures taken by international organizations.33 As far as the proportionality of countermeasures is concerned, it has long been discussed in the literature whether it should be read differently in respect of measures taken by international organizations. It is clear that the work of the ILC on the responsibility of States is not very useful on this point since it did not resolve the situation of countermeasures taken by a plurality of injured States. In 1992 some members of the ILC raised the question of countermeasures by a plurality of injured States:

Assuming that no coordinated, collective (‘horizontal’) action was undertaken by those States, it was likely that each injured State would be predominantly concerned with its own relationship with the (p. 975) State which had committed the wrongful act. Taken alone, that conduct might seem reasonable. But what if, collectively, the conduct of all the injured States amounted to a disproportionate response? A provision to the effect that each State should respond with due regard to the responses of other injured States was viewed as too vague.34

In his Third Report, Special Rapporteur Crawford also specified in relation to the situation of collective countermeasures taken by non-injured States that ‘all the countermeasures taken in relation to a particular breach should be considered in determining whether the response is, overall, proportionate’.35 In his Sixth Report on the Responsibility of International Organizations, Special Rapporteur Gaja nevertheless did not seem to consider that the requirement of proportionality as it features in ARSIWA should be adapted, but rather that it could be taken up as it was in the context of international organizations.36 The Draft Articles on the Responsibility of International Organizations adopted in 2009 go in the same direction since the drafting of article 53 is identical to that of article 51 of the 2001 Articles. Its Commentary, surprisingly, is silent on the question.

Beyond proportionality, there is no doubt that the list concluded by the ILC in 2001 (article 50) of obligations which cannot be affected by countermeasures is also relevant for measures taken by international organizations.37 It is also included in the 2009 Draft Articles (article 52).

Finally, a last point must be mentioned concerning the conditions for the exercise of countermeasures by international organizations. In the special case where an organization invokes the international responsibility of a subject for harm caused to one of its agents, there is no doubt that it must be proved that the agent is an agent of the organization just as, in the case of direct harm to a State organ, the State must prove that the organ which suffered the prejudice is indeed an organ of the State. Furthermore, a specification must be added with regard to the situation mentioned by the Court in 1949 of potential competition of claims formulated by an organization and a State. The Court ruled on this point that ‘there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim’.38 Solutions ‘inspired by goodwill and common sense’ must be found and ‘risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case’, it being understood that, in any case, the defendant State cannot be forced to make reparation twice for harm caused.39 Academic writers have also addressed this issue and proposed slightly different solutions (for Eagleton, priority must be given to the action of the organization).40 Whatever the answer to this last question should be, there will only (p. 976) be competition where the organization and the State are invoking the breach of the same international obligation with respect to the same act (for example in the case where a blue helmet is subjected to acts of torture by a belligerent).

Invocation of responsibility by an international organization which is not injured

Apart from the situation where the international organization invokes responsibility as an injured subject, the situation may arise where the organization invokes international responsibility without being injured but because of the interest that it has in respect for the breached obligation, taking account of its special character. The situation of an organization having an interest in respect for a breached obligation must be envisaged for erga omnes partes obligations and ‘obligations owed to the international community as a whole’ under the formulation that was finally retained by the ILC.41 Since these obligations are owed to ‘all’ the question arises whether they are also owed to international organizations, and whether on that basis international organizations would also be entitled to invoke responsibility for breaches of those obligations.

(a)  The interest of an international organization in respect for the breached obligation

(i)  Membership of a group to whom the obligation is owed

The first situation envisaged by article 48(1) ARSIWA where a State other than the injured State can invoke responsibility is where the breached obligation is owed to a group of States including the invoking State and the obligation is established with the purpose of protecting the collective interest of the group. These obligations can be classified as erga omnes partes obligations. They may arise under multilateral treaties or customary international law.42 Nothing prevents an international organization from being part of such a group, as article 48(1) of the 2009 Draft Articles notes in the case of the invocation of responsibility of another organization.

(ii)  Membership of the international community as a whole

The second situation, where the breached obligation is owed to the international community as a whole, is more delicate. The notion of the international community as a whole is not precisely defined.43 In this context, one could be tempted to adopt a restrictive definition of the international community as comprising only States. If a broader definition is adopted, there is a risk that the international community could be comprised of each and every subject of international law (including individuals for particular purposes), since the only criterion would be possessing international legal personality. However, pragmatic reasons negate such a logical deduction. In fact, international organizations do not occupy the same position as individuals in the international legal order and the participation of international organizations as forming part of the international community does not necessarily entail the automatic recognition of individuals as doing so. On the one hand, and in contrast to individuals, international organizations actively participate in the formation (p. 977) of international law and in particular may be parties to treaties which may, by their terms, establish obligations owed to the international community as a whole.44 On the other hand, again in contrast to individuals, international organizations may be seen as the extension of their member States, and, by definition, act in the common interest. Accordingly, there would seem to be a purely functional reason which explains why organizations such as the ICRC should be considered to constitute members of the international community.45

A more restrictive view of the scope of the international community does not appear to correspond to reality and recognition of international organizations as members of the international community is desirable. With the exception of the particular context of the law of treaties (the Vienna Conventions, including that of 1986 on international organizations, refer to the international community of States),46 the repeated use in treaty practice of the expression ‘international community as a whole’ with preference over ‘international community of States as a whole’ seems to provide some support for a broader notion of the international community.47 Notably, the Court refers to ‘obligations of a State towards the international community as a whole’.48 In the ILC, the terminology employed by successive Special Rapporteurs on State responsibility also evolved in this sense: although at the beginning the concept was referred to as the ‘international community of States as a whole’, the final terminology used by Special Rapporteur Crawford and approved by the ILC is ‘international community as a whole’. Objections were raised by some States (for example France, Mexico, Slovakia, and the United Kingdom49 on the basis that the expression ‘international community as a whole’ should read ‘international community of States as a whole’) but were rejected:

The Special Rapporteur does not agree that any change is necessary in what has become a well-accepted phrase. States remain central to the process of international lawmaking and law-applying, and it is axiomatic that every State is as such a member of the international community. But the international community includes entities in addition to States: for example, the European Union, the International Committee of the Red Cross, the United Nations itself.50

The Draft Articles on the Responsibility of International Organizations 2009 also use this inclusive conception of the international community (article 48).

It follows that the theory of assimilation of the UN to the international community as a whole, which was supported by some—for whom the global organization is the most satisfying institutional representation of the organized international community51—should be rejected. This theory is further of little use if it is considered that the sanctions that the (p. 978) Security Council may adopt relate to the law of collective security and not to the law of responsibility.52 It also follows that the argument that organizations should be excluded from the international community because they are not members of the Organization which represents this community is not appropriate. The Special Rapporteur justified this solution on the basis of the practical consideration that the lack of willingness on the part of UN organs should not result in a situation where a State which breaches an obligation towards the community as a whole could not be held to account for that breach.53

(b)  The consequences of international organization having an interest in respect for the breached obligation

The inclusion of a category of obligations owed to a group of States or to the international community as a whole was intended to broaden the scope for the invocation of responsibility. Should it be deduced from this that as from the moment when certain obligations are owed to international organizations, they have a right to invoke the responsibility of the author of the breach under the same conditions as States? This is quite unclear. As the Court has recognized: ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights’.54

Undoubtedly membership of a group to whom an obligation is owed or of the international community as a whole must entail certain consequences. The minimum that this could entail is the right to protest against breaches of erga omnes obligations, since protest is generally considered as a lawful act;55 it also be noted that there is significant practice in support of a right of protest (Community institutions, but also the organs of the Council of Europe, the African Union, etc).56 What are the consequences envisaged by ARSIWA? For States having an interest in the respect for the obligation which is breached, article 48(2) recognizes the right to require the cessation of the internationally wrongful act as well as guarantees of non-repetition on the one hand, and on the other, the right to require the execution of the obligation of reparation in the interest of the injured State or the beneficiaries of the breached obligation.57 Of course, the utility of recognizing these rights for organizations in addition to States is open to question, insofar as the right to invoke responsibility with regard to such obligations is not established in the personal interest of the party which invokes it ‘but in the community interest’58 or in the interest of the group. A distinction between the obligations concerned could be made in this regard and an organization could be entitled to require more from a member of a group to which it belongs (to whom an obligation is owed) than as a member of the international community as a whole. (p. 979) The 2009 Draft Articles also recognize the ability of non-injured organizations to invoke responsibility while distinguishing the situations where the breached obligation is owed to a group (article 48(1)) or to the international community as a whole (article 48(3)). In the latter case, the Draft Articles specify that, in a legitimate way, the ability of an organization to invoke the responsibility of another organization only exists if the protection of the interest of this community which underlies the breached obligation is included among the functions of the international organization invoking responsibility59—and with this same reservation, the existence of such an ability must be accepted where there is an organization that invokes the responsibility of a State. But the 2009 Draft Articles nevertheless do not distinguish between the situations where there is a determination of rights which belong to the organization having an interest in the respect of the breached obligation and the wording of article 48 is modelled on that of article 48(2) ARSIWA.

The Articles on State Responsibility leave open the question whether States other than injured States are entitled to resort to countermeasures to induce the responsible State to fulfil its secondary obligations. The insertion of an express provision relating to countermeasures in these circumstances was envisaged by the ILC until the last version of the draft articles. Former article 40 provided that any State could take countermeasures in the case of an ‘international crime’, breach of human rights or the breach of certain collective obligations, independently from the entitlement of any other State, including the injured State. Subsequently, a toned-down version of this proposition was retained:60 article 54 dealt with the resort to countermeasures by a State having an interest in respect for an obligation breached in two situations: first at request and on behalf of any injured State; and second in response to grave breaches of essential obligations owed to the international community and in the interest of the beneficiaries of the breached obligation.61 This provision was not retained in the final version of the articles and article 54 states that the Chapter dedicated to countermeasures:

does not prejudice the right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

It is therefore uncertain whether States other than injured States can take countermeasures62 and it seems difficult to recognize a power for organizations (including the UN63) to take countermeasures in these situations.64 What is more, the situation of countermeasures being taken by organizations seems sometimes to have been hidden, to the point of devising mechanisms which would in practice have prevented organizations from resorting (p. 980) to countermeasures.65 Article 56 of the 2009 Draft Articles leaves the question open since it takes up the ‘without prejudice’ approach that features in article 54 of the 2001 Articles. The commentary to article 5666 nevertheless implies that resort to countermeasures by an international organization in the case of a breach of an obligation owed to the international community as a whole or to a group to which it belongs is acceptable.

Even if international law recognizes a power for organizations to take countermeasures, it is still necessary that the organization itself has competence to take such measures. Such a competence is exceptional. Even in the framework of the EC, this competence does not exist, as is shown by the mechanism provided for by article 301 ECT, pursuant to which the EC only had competence to ensure the execution of measures decided within the EU; the progressive affirmation of the legal personality of the EU—even if today it is no longer open to question—in this regard underwent an interesting evolution. In the majority of cases, organizations can only recommend the taking of certain measures to their member States, because of their limited competence.67 Some authors defend the existence of such a competence for the UN, to take action against a third State.68

Furthermore, the emerging practice of some international organizations is even more limited than that of States, for instance the few cases of measures adopted by the EU in reaction to serious and repeated violations of human rights. An example is Common Position 2000/346/PESC of the EC Council of 26 April 2000 ‘extending and amending Common Position 96/635/CFSP on Burma/Myanmar’,69 which froze the assets of certain Burmese representatives following grave human rights breaches systematically committed in Burma. However, as indicated by Special Rapporteur James Crawford, measures adopted within the context of the UN would appear not to fall within this category.70 The denunciation of the cooperation agreement between the Community and with the SFRY on the basis of the law of treaties (a rebus sic stantibus clause) also shows that international organizations are reluctant to take measures under the general law of responsibility in this type of situation.71

International law seems to have taken note of this state of affairs. The different texts which contemplate the issue, even if they generally maintain the broad notion of ‘international community as a whole’, restrict the possibility of invoking responsibility only to States. The judgment in Barcelona Traction indicates, after having referred to ‘obligations of (p. 981) a State towards the international community as a whole’ that ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.72 Article 1(2) of the Institut de Droit International Resolution of 13 September 1989 relating to the protection of human rights provides that the obligation to respect human rights assumes the character of an erga omnes obligation and thus ‘ it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights’; and article 2(2) continues ‘States, acting individually or collectively, are entitled to take diplomatic, economic and other measures towards any other State which has violated the obligation set forth in Article 1, provided such measures are permitted under international law’.73

Academic writers also mostly exclude the possibility for organizations to invoke international responsibility and take countermeasures in cases of breaches of obligations that are owed to the international community. P-M Dupuy approaches the issue of ‘countermeasures that are taken with view to the satisfaction of an objective right that belongs to each member of the international community’74 without even contemplating measures taken by organizations. Verhoeven does not examine the question of breachs of obligations owed to the international community but expressly rejects an organization resorting to countermeasures where the rights of a third party State are infringed.75 Daillier and Pellet state however that ‘[t]he rights from which the international community benefits are still limited and, today, can only be exercised by States or international organizations, the traditional subjects of international law’.76 For Dubouis, a reaction is possible when it is within the competence of the organization since vis-à-vis the third party State the measure presents itself as a unilateral one.77 In a more engaged fashion, CD Ehlermann78 states that countermeasures by organizations must be accepted in cases of international crimes in the same way as for States. G Cohen-Jonathan notes further:

In a general way, and for grave and generalised breaches, international practice tends to accept the possibility of ‘countermeasures’ with the purpose of establishing respect for essential norms. A State, a group of States or an international organization (the European Union for example) can then react to a grave breach by taking coercive measures on the diplomatic or economic level.79

An evolution can nevertheless be expected with regard to grave breaches following from peremptory norms of general international law. In fact, for this special category of obligations owed to the international community as a whole it is accepted that breaches ‘can attract additional consequences, not only for the responsible State, but for all other States’.80 Among the supplementary consequences that are listed in article 41 ARSIWA, there is an obligation for States to cooperate to end, by lawful means, any grave breach (p. 982) in the sense of article 40.81 If subsequent practice was to confirm that the ‘lawful means’ mentioned by this article includes countermeasures, the instrumentalization of international organizations for the cooperation required by ARSIWA could develop into an interesting possibility.82 The measures decided by an organization offer guarantees of superior objectivity compared to those which emanate from States. This is also the justification for the solution given by the ICTY in Blaskic where the Tribunal envisages action which is instrumentalized and strictly framed by intergovernmental organizations on occasions of responses to grave breaches of international law.83 The 2009 Draft Articles and their commentaries do not, however, envisage this route and article 41(1) limits itself to taking up, mutatis mutandis, the wording of article 40 ARSIWA.

Further reading

  • A Bleckmann, ‘The Mixed Agreements of the EEC in Public International Law’, in D O’Keeffe & HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983)
  • G Cohen-Jonathan, ‘La protection des droits de l’homme et l’évolution du droit international— Conclusions générales’, in Colloque de la Société française pour le droit international de Strasbourg, La protection des droits de l’homme et l’évolution du droit international (Paris, Pedone, 1998), 307
  • E Cujo, Les réactions décentralisées de l’Union européenne à l’illicite, Thèse Paris X-Nanterre 2002
  • L Dubouis, ‘L’embargo dans la pratique contemporaine’ (1967) 13 AFDI 99
  • J Dutheil de la Rochere, ‘L’ère des compétences partagées. A propos de l’étendue des compétences extérieures de la Communauté européenne’ (August–September 1995) 390 RMC 461
  • C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des Cours 323
  • CD Ehlermann, ‘Communautés européennes et sanctions internationals—une réponse à Joe Verhoeven’ (1984–1985) 18 Revue Belge de Droit International 96
  • M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’Etat (Paris, Pedone, 2006)
  • JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345
  • G Gaja, ‘The European Community’s Rights and Obligations Under Mixed Agreements’, in D O’Keeffe & HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983), 133
  • C Held, Les accords internationaux conclus par la Communauté économique européenne—Etude de droit communautaire (Vevey, Saüberlin, & Pfeiffer, 1977)
  • E Kalpyris & R Vork, A Napolitano, Les sanctions des Nations Unies dans le conflit de l’ex-Yougoslavie—La coopération OSCE/UE (Brussels/Paris, Bruylant/LGDJ, 1995)
  • S Karagiannis, ‘Sanctions internationales et droit communautaire—A propos du règlement 1901/98 sur l’interdiction de vol des transporteurs yougoslaves’ (July–September 1999) 35 RTDE 363
  • (p. 983) P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998)
  • PJ Kuyper, ‘International Legal Aspects of Economic Sanctions’, in P Sarcevic & H Van Houtte, Legal Issues in International Trade (London/Dordrecht/Boston, Graham & Trotman/Martinus Nijhoff, 1990), 145
  • C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979)
  • K Oellers-Frahm, ‘The Erga Omnes Applicability of Human Rights’ (1992) 30 Archiv des Völkerrechts 28
  • B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 217
  • J Verhoeven, ‘Communautés européennes et sanctions internationals’ (1984–1985) 18 Revue Belge de Droit International 79(p. 984)

Footnotes:

See in particular G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597.

Commentary to art 1 of the Draft Articles on the Responsibility of International Organizations (DARIO) adopted on first reading by the ILC in August 2009, para 10; see also G Gaja, Seventh Report on Responsibility of International Organizations, 2009, A/CN.4/610, para 8.

See especially the work of P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998).

Ibid, 5.

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174.

R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1),44 (para 94); see now the work of the ILC on the responsibility of international organizations, including G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597, paras 6–10).

Commentary to art 42, para 2.

Introductory Commentary, para 1.

Opinion is unanimous on this point, see for example E David, Droit des organisations internationales (Brussels, PUB, 1996–1997), vol 2, 280.

10  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 177.

11  P-M Dupuy, Droit international public (Paris, Dalloz, 2004), 487; see also the position of the Administrative Tribunal of the ILO that rejects the idea of a condition of exhaustion of local remedies in the case cited by: D Ruzié, ‘La jurisprudence du Tribunal administratif de l’OIT’ (2000) 46 AFDI 475.

12  See Annex IX, arts 1–6; United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3, or art II(5)-7 of the Constitution of the FAO (as amended).

13  See P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998), 326.

14  Cf, however, DARIO, draft art 21(2); see also C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979), 271.

15  South West Africa, Second Phase, Judgment, ICJ Reports 1966, p 6, 47.

16  Cf C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979).

17  Art 36(2) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543, also requires express consent, while this is presumed where a right is conferred onto a third party State (see art 36(1)).

18  Report of the ILC, 34th Session, ILC Yearbook 1982, Vol II(2) 39 (emphasis added).

19  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 180.

20  See DARIO, draft art 42.

21  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 177.

22  See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 234ff.

23  Opinion of 20 August 1975, United Nations Juridical Yearbook 1975, 161.

24  See eg Official Journal of the European Union, 3 February 2009, L 33/43; 24 May 2008, L 136/46; 26 March 2008, L 83/40.

25  R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol. II(1), 44 (para 94).

26  J Verhoeven, ‘Communautés européennes et sanctions internationals’ (1984–1985) 18 RBDI 87; PJ Kuyper, ‘International Legal Aspects of Economic Sanctions’, in P Sarcevic & H Van Houtte (eds), Legal Issues in International Trade (London, Martinus Nijhoff, 1990), 156; in a more nuanced fashion: CD Ehlermann, ‘Communautés européennes et sanctions internationals—une réponse à Joe Verhoeven’ (1984–1985) 18 RBDI 103.

27  See DARIO Commentary to art 1, para 10, Report of the ILC, 61st Session, 2009, A/64/10, 42 and DARIO, draft arts 21 and 50–55.

28  This situation is contemplated by CD Ehlermann, ‘Communautés européennes et sanctions internationales—une réponse à Joe Verhoeven’ (1984–1985) 18 RBDI 96, 103.

29  J Dutheil de la Rochère, ‘L’ère des compétences partagées. A propos de l’étendue des compétences extérieures de la Communauté européenne’ (August–September 1995) RMC No 390, 461.

30  In this sense Ch Held, Les accords internationaux conclus par la Communauté économique européenne—Etude de droit communautaire (Vevey, Saüberlin, & Pfeiffer, 1977), 205. This author nevertheless accompanies his proposal with a reservation; according to him the organization can only intervene if the interested member State or member States cannot or do not want to act on their own behalf, considering that they are those that are primarily competent in the area. See also G Gaja, ‘The European Community’s Rights and Obligations Under Mixed Agreements’, in D O’Keeffe & HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 137; cf A Bleckmann, ‘The Mixed Agreements of the EEC in Public International Law’, ibid, 158.

31  See eg PJ Kuyper, ‘International Legal Aspects of Economic Sanctions’, in P Sarcevic & H Van Houtte, Legal Issues in International Trade (Dordrecht, Martinus Nijhoff, 1990), 156.

32  See especially E David, Droit des organisations internationals (Brussels, PUB, 1996–1997), 280, 281; P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998), 401; cf J Verhoeven, ‘Communautés européennes et sanctions internationales’ (1984–1985) 18 RBDI 79, 87, 90.

33  See DARIO Commentary to art 21, para 2, Report of the ILC, 61st Session, 2009, A/64/10, 98.

34  Report of the ILC, 44th Session, ILC Yearbook 1992, Vol II(2), 39 (para 270).

35  J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 401.

36  G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597, paras 53–54.

37  On this point see General Comment 8 (1997) of the ECOSOC Committee which inter alia examines the effect of measures taken by organizations on civil populations and indicates that ‘whatever the circumstances, such sanctions should always take full account of the provisions of the International Covenant on Economic, Social and Cultural Rights’: ECOSOC, General Comment No 8, The relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, E/C.12/1997/8 (para 1); cited in the Commentary to art 50, para 7.

38  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 185.

39  Ibid, 186.

40  CD Eagleton, ‘International Organizations and the Law of Responsibility’ (1950-I) 76 Recueil des cours 361.

41  Art 48 ARSIWA.

42  Commentary to art 48, para 6.

43  On this notion, see A-L Vaurs-Chaumette, below, Chapter 70.

44  J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, 46.

45  J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 36. As for the ICRC, but also for the UN Compensation Commission, the UNHCR etc, see Decision No 5 of the Governing Council of the United Nations Compensation Commission for Iraq, S/AC.26/1991/5 (1991), paras 4–5.

46  Article 53, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543.

47  See the list of conventions in the Commentary to art 25, para 18, fn 421.

48  Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3, 32 (para 33).

49  J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 36, fn 45.

50  Ibid, para 36.

51  See eg JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345, 355, B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 217, 256; see also the doctrine cited in G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1), 13 (fn 85); for a rejection of this concept see Report of the ILC, 46th Session, ILC Yearbook 1994, Vol II(2), 149 (para 330).

52  See especially on this point M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’État (Paris, Pedone, 2006).

53  J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 37.

54  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 178.

55  See eg art 3 of the resolution of the Institut de Droit International, 13 September 1989, ‘The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States’ (Santiago de Compostela), 63-II Annuaire IDI 338.

56  E Cujo & M Forteau, ‘Les réactions des organes politiques’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 2000), 668–670.

57  It must be noted that accepting that organizations have the same rights as States here supposes that obligations are also imposed on them—ie those of art 41 of ARSIWA, namely the non-recognition of the situation as lawful and non-assistance in the maintenance of the situation.

58  J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 376.

59  See on this point G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597, paras 32–40.

60  Crawford’s Fourth Report on State Responsibility indicates that even though this modification caused many controversies, the effect of the inclusion of this provision ‘is to reduce the extent to which countermeasures can be taken in a community interest, as compared with the first reading text (article [47] in conjunction with article [40])’: J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 59 (emphasis added).

61  ibid, para 70.

62  See the Commentary to art 54, ARSIWA.

63  See the rejection of the ILC of Special Rapporteur Riphagen’s proposition to make countermeasures dependent on a collective decision of the global Organization: W Riphagen, Preliminary Report on State Responsibility, ILC Yearbook 1980, Vol II(1) 121 (para 68–73); W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 36 (para 91), 44 (para 130, 134).

64  On this question see above, G Gaja, Chapter 64, and L-A Sicilianos, Chapter 80.

65  See the suggestion of Special Rapporteur Arangio-Ruiz that resort to countermeasures in response to an international crime ought to be subjected to a procedure at the ICJ, in which international organizations would not have standing. Cf G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1) 24; for the reasons for rejecting this proposition see ILC Yearbook 1998, Vol II(1), 74 (para 310).

66  Commentary to art 56, para 2.

67  See eg declaration of 11 January 1982 adopted by the Atlantic Council concerning the establishment of a state of war in Poland, reproduced in Ch Rousseau, ‘Chronique des faits internationaux’ (1982) 86 RGDIP 603, 606–607.

68  This is for example the situation for measures taken against the FRY at the time when it was not a member of the organization, see in this sense Kalpyris who is of the opinion that the Security Council can use Chapter VII against non-member States: E Kalpyris, R Vork, & A Napolitano, Les sanctions des Nations Unies dans le conflit de l’ex-Yougoslavie—La coopération OSCE/UE, (Brussels, Bruylant, 1995), 16; cf S Karagiannis, ‘Sanctions internationales et droit communautaire—A propos du règlement 1901/98 sur l’interdiction de vol des transporteurs yougoslaves’ (July-September 1999) 35 RTDE 382.

69  Official Journal of the European Communities, 24 May 2000, No L 122/1.

70  J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 73; and see the saving clause contained in art 59 ARSIWA.

71  Decision 91/602/CEE of the Council, 25 November1991 denouncing the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, Official Journal of the European Communities, 27 November 1991, No L 325/23.

72  Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3, 32 (para 33), emphasis added.

73  Resolution of the Institut de Droit International, 13 September 1989, The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States (Santiago de Compostela), 65-II Annuaire (01 338).

74  P-M Dupuy, Droit international public (Paris, Dalloz, 2004), 507.

75  J Verhoeven, ‘Communautés européennes et sanctions internationals’ (1984–1985) 18 RBDI 87, 89.

76  P Dallier & A Pellet, Nguyen Quoc Dinh, Droit international public (Paris, LGDJ, 2002), 402.

77  L Dubouis, ‘L’embargo dans la pratique contemporaine’ (1967) 13 AFDI 127.

78  CD Ehlermann, ‘Communautés européennes et sanctions internationals—une réponse à Joe Verhoeven’ (1984–1985) 18 RBDI 103, 104.

79  G Cohen-Jonathan, ‘La protection des droits de l’homme et l’évolution du droit international—Conclusions générales’, in Colloque SFDI Strasbourg, La protection des droits de l’homme et l’évolution du droit international (Paris, Pedone, 1998), 338.

80  Commentary to Part Two, Chapter III, para 7.

81  The ICJ nevertheless neglected this element of cooperation in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 159).

82  See commentary to art 41 that indicates that this cooperation ‘could be organized in the framework of a competent international organization, in particular the United Nations’ (para 2); already in 1993 did the ILC note that some authors are in favour of an intervention of regional organizations in preference to that of States ut singuli to sanction crimes; K Oellers-Frahm, ‘The Erga Omnes Applicability of Human Rights’ (1992) 30 Archiv des Völkerrechts 34.

83  Prosecutor v Tihomir Blaskic, ICTY, Appeals Chamber, judgment, 29 October 1997, IT-95-14-AR 108 bis, 110 ILR 607, 636 (para 56).