Noemi Gal-Or is professor of politics and international law and director of the Institute for Transborder Studies at Kwantlen Polytechnic University and a practising lawyer in Vancouver. She currently serves as communications officer on the Executive of the Canadian Bar Association’s National International Law Section and is vice-president and research director of the Canadian Branch of the International Law Association. This article has benefited from valuable comments by William Slomanson of Thomas Jefferson School of Law, John Currie of the University of Ottawa, and several anonymous reviewers as well as style editing by the author’s student assistant Keri Van Gerven. To all of them, the author extends sincere thanks.

¹ The World Bank Group (WB) consists of the International Bank for Reconstruction and Development, the International Development Association, the International Finance Corporation, the Multilateral Investment Guarantee Agency, and the International Centre for the Settlement of Investment Disputes. The World Trade Organization (WTO) is a forum for trade negotiations and dispute settlement designed to increase global prosperity by encouraging the removal of protectionist barriers to trade.

² “Member-driven” is the WTO’s own expression. See, for example, Moore, Mike, “Speech Notes to Legislators Assembly” (WTO News Speeches: DG Mike Moore, 2 December 1999), online: WTO <http://www.wto.org/english/news_e/spmm_e/spmmi8_e.htm> >Google Scholar; Alvarez, Jose, “Misadventures in Statehood,” EJIL Talk (2010), online: EJIL <http://www.ejiltalk.org/misadventures-in-statehood/#more-2621>.Google Scholar

³ For discussion of the European Union (EU) and the international responsibility of international organizations, see d’Aspremont, Jean, “A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union,” in Kosta, V, Skoutaris, N, and Tzevelekos, V, eds, The EU Accession to the ECHR (Portland, OR: Hart Publishers, forthcoming), online: SHARES <http://www.sharesproject.nl/wp-content/uploads/2013/04/SHARES-RP-22-final.pdf>..>Google Scholar

⁴ International Law Commission (ILC), “Draft Articles on the Responsibility of International Organizations” (2011) 2:2 YB ILC 52 [RIO]; ILC “Draft Articles on Responsibility of International Organizations, with Commentaries” (2011) 2:2 YB ILC 67 [RIO Commentaries]. See also ILC, Responsibility of International Organizations: Texts and Titles of Draft Articles 1 to 67 Adopted by the Drafting Committee on Second Reading, UNGAOR, UN Doc GA/CN.4/L.778 (2011).

⁵ Lex specialis is a short-form reference to the general rule that specific law displaces general law.

⁶ See Gaja, Giorgio, Rapporteur, Special, First Report on Responsibility of International Organizations , UNGAOR, UN Doc A/CN.4/532 (2003) at para 3.Google Scholar

⁷ ILC, “Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries,” UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2) (2001) 2(2) YB ILC 26, online: ILC <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf= [DARS]. See Gaja, supra note 6 at para 1.

⁸ ILC, “Text of the Draft Articles on Responsibility of International Organizations Adopted by the Commission on First Reading” (2011) 2:2 YB ILC 19 [DARIO]. Criticism faults the ILC for the parallels it drew between states and international organizations. Compare Alvarez, supra note 2; d’Aspremont, Jean and Ahlborn, Christiane, “The International Law Commission Embarks on the Second Reading of Draft Articles on the Responsibility of International Organizations” (2011) EJIL Analysis, online: EJIL <http://www.ejiltalk.org/the-international-law-commission-embarks-on-the-second-reading-of-draft-articles-on-the-responsibility-of-international-organizations/>.Google Scholar Several highly complex and controversial issues concerning the responsibility of international organizations were addressed during the drafting of the DARS, including, for example, attribution of conduct to an international organization that places one of its organs at the disposal of a state and the counter case — that of a state organ being placed at the disposal of an international organizations. See Gaja, supra note 6; DARS, supra note 7.

⁹ ILC, Responsibility of International Organizations: Comments and Observations Received from International Organizations, UNGAOR, UN Doc A/CN.4/637 (2011) and Addendum 1 [Comments and Observations from International Organizations].

¹⁰ ILC, Responsibility of International Organizations: Comments and Observations Received from International Organizations, UNGAOR, UN Doc A/CN.4/545 (2004) at 10 [emphasis added].

¹¹ Ibid at 33.

¹² Ibid. On the range of opinions concerning the WTO’s “mission,” see Charnovitz, Steve, “Triangulating the World Trade Organization. Symposium: The Boundaries of the WTO” (2002) 96 AJIL 28.CrossRefGoogle Scholar

¹³ ILC, Responsibility of International Organizations: Comments and Observations Received from Governments, UNGAOR, UN Doc A/CN.4/556 (2005) at 10.

¹⁴ Note that unlike the WTO, the WB and the International Monetary Fund (IMF) have established, and have been operating, internal inspection panels. See Alvarez, supra note 2; International Law Association (ILA), Accountability of International Organisations: Final Report (2004), online: ILA <http://www.ila-hq.org/en/committees/index.cfm/cid/9>.

¹⁵ Mushkat, Roda, “Compliance with International Environmental Regimes: Chinese Lessons” (2010) 34:2 Wm & Mary Envtl L & Pol’y Rev 493 at 503.Google Scholar

¹⁶ On WTO originating expectations, see Carmody, Chios, “WTO Obligations as Collective” (2006) 17:2 EJIL 419 at 422 CrossRefGoogle Scholar, arguing that “[t]he principal aim of the WTO agreement is to protect expectations” and distinguishing his understanding of WTO obligations from Pauwelyn, Joost, “A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?” (2003) 14:5 EJIL 907 CrossRefGoogle Scholar. See also Aaronson, Ariel, “Seeping in Slowly: How Human Rights Concerns Are Penetrating the WTO” (2007) 6:3 World Trade Review 413 at 430 CrossRefGoogle Scholar (offering detailed analysis on expectations concerning the protection of human rights and corresponding WTO rules). See further Esty, Daniel C, “The World Trade Organization’s Legitimacy Crisis” (2002) 1:1 World Trade Review 7 at 10–12 CrossRefGoogle Scholar: “[P]ublic perceptions about trade and trade policy making have changed. Trade is no longer considered to be an obscure policy domain best left to technical experts. Instead, trade issues and initiatives are now a major focus of public attention and discussion across the world. The trade regime can no longer function on the basis of technocratic rationality and quiet accomplishments … [T]he WTO mission must be understood as fundamentally an exercise in global-scale regime building with profound effects for every person on the planet … [T]he whole world is now watching the WTO and asking questions about the organization’s purpose, structure, representation, decision processes, and legitimacy.”

¹⁷ Even earlier, “the wave of dissent that began in the 1990s was, in a number of important respects, catalyzed by the Uruguay Round of trade negotiations that created the WTO. The WTO became a magnet for dissent.” Ostry, Sylvia, “Who Rules the Future? The Crisis of Governance and Prospects for Global Civil Society” (Paper prepared for the Robarts Centre for Canadian Studies, New Geographies of Dissent: Global Counter-Publics and Spheres of Power, Panel 1, York University, 2006) at 2 [unpublished]Google Scholar. Other financial and trade international organizations and fora were not spared criticism either. See, for example, Barr, Michael S and Miller, Geoffrey P, “Global Administrative Law: The View from Basel” (2006) 17:1 EJIL 15 (regarding criticism levelled at the Basel Committee).CrossRefGoogle Scholar

¹⁸ See, for example, He, Baogang and Murphy, Hannah, “Global Social Justice at the WTO? The Role of NGOs in Constructing Global Social Contracts” (2007) 83:4 International Affairs 707 CrossRefGoogle Scholar; Buchanan, Ruth, “Perpetual Peace or Perpetual Process: Global Civil Society and Cosmopolitan Legality at the World Trade Organization” (2003) 16:4 Leiden J Int’l L 673 CrossRefGoogle Scholar; Elsig, Manfred, “The World Trade Organization’s Legitimacy Crisis: What Does the Beast Look Like?” (2007) 41:1 Journal of World Trade 75 Google Scholar; Halle, Mark and Wolfe, Robert, “A New Approach to Transparency and Accountability in the WTO” (2010) Issue Brief 06, online: Entwined <http://www.iisd.org/pdf/2011/IssueBrief6-2010-09-14-low.pdf>.Google Scholar

¹⁹ I discuss the dichotomy between accountability and responsibility only briefly due to lack of space. For a more detailed analysis, see Gal-Or, Noemi and Ryngaert, Cedric, “From Theory to Practice: Exploring the Relevance of the Draft Articles on the Responsibility of International Organizations (DARIO): The Responsibility of the WTO and the UN” (2012) 13:5 German Law Journal 511 Google Scholar. See also Boon, Kristen E, “New Directions in Responsibility: Assessing the International Law Commission’s Draft Articles on the Responsibility of International Organizations” (2011) 37:2 Yale J Int’l L 1.Google Scholar

²⁰ Posner, Eric A, The Perils of Global Legalism (Chicago: University of Chicago Press, 2009).CrossRefGoogle Scholar

²¹ Klabbers, Jan, An Introduction to International Institutional Law (New York: Cambridge University Press, 2010)Google Scholar. I use “porridge” to describe the semantic muddiness of the meaning of responsibility in international law in a way similar to Jagdish Bhagwati’s use of the “spaghetti bowl” as a metaphor for a trade regime made complex by the multiplicity of bilateral trade agreements. See Bhagwati, Jagdish N, “US Trade Policy: The Infatuation with FTAs,” Columbia University Discussion Paper Series no 726 (April 1995) at 4, online: Columbia University <http://academiccommons.columbia.edu/catalog/ac:100125>..>Google Scholar

²² Posner, supra note 20 at 21.

²³ Ibid.

²⁴ Ibid, chapter 2 at 8. The emphasis on “global” is important as it places the “legalist” in the context of international, as distinct from domestic, law.

²⁵ In the quasi-legal regime known as “soft law,” legitimacy, transparency, and accountability are terms prevalent where voluntary codes of conduct are being discussed or developed.

²⁶ Anderson, Kenneth, “Conceptualizing Accountability in International Law and Institutions” (2011), online: Opinio Juris <http://opiniojuris.org/2011/02/25/conceptualizing-accountability-in-international-law-and-institutions/> >Google Scholar. The reason for the “societal” perception is social indeed, for “we do spend so much time in the company of other members of what looks to us to be a sort of transnational society of many different actors, and it all looks rather social to us” (ibid, part 1).

²⁷ Boon, supra note 19. See also ILA, supra note 14.

²⁸ The expression “communities of practice” is used instead of “undercurrents” in Brunnée, Jutta and Toope, Stephen, Legitimacy and Legality in International Law (New York: Cambridge University Press, 2010).CrossRefGoogle Scholar

²⁹ Mushkat, supra note 15. However, note especially Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 351 Google Scholar; Mushkat, Roda, “Dissecting International Legal Compliance: An Unfinished Odyssey” (2009) 38:1 Denv J Int’l L & Pol’y 161 Google Scholar; Brunnée, Jutta and Toope, Stephen, “Persuasion and Enforcement: Explaining Compliance with International Law” (2002) 13 Finnish YB Int’l L 274 Google Scholar; Franck, Thomas M, Fairness in International Law and Institutions (New York: Oxford University Press, 1995)Google Scholar; Arendt, Hannah, On Violence (Orlando, FL: Harcourt Publishers, 1969)Google Scholar. For a practical example of the functional essence of accountability, where expectations of compliance by business and government are addressed, see Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy,” UN Doc A/HRC/17/31 (2011).

³⁰ Paraphrasing Brunnée’s and Toope’s formulation of reciprocal fulfillment of duties in Fuller’s theory. See Brunnée and Toope, supra note 28 at 38–39. ILC Rapporteur Giorgio Gaja notes (referring to the work of the ILA Committee on the Accountability of International Organizations) that accountability, which addresses good governance, is a concept broader than responsibility for internationally wrongful acts, the latter being a concrete instance of accountability. See Gaja, Giorgio, Special Rapporteur, Third Report on Responsibility of International Organizations , UNGAOR, UN Doc A/CN.4/553 (2005) at 12, n 38.Google Scholar

³¹ A forward-looking analysis might contemplate the expansion of the law of international responsibility to include that of non-state actors (other than international criminal responsibility). For a general review, see Shaw, Malcolm N, International Law, 6th edition (Cambridge: Cambridge University Press, 2008) at 1310–31CrossRefGoogle Scholar; Klabbers, supra note 21 at 271–93; Reinisch, August, ed, Challenging Acts of International Organizations before Domestic Courts (Oxford: Oxford University Press, 2010).CrossRefGoogle Scholar

³² Arendt, supra note 29 at 43. For a compelling analysis of fairness and justice and the place of legitimacy in these contexts, see Franck, supra note 29. See also Gal-Or, Noemi, “Dispute Resolution in International Trade and Investment Law: Privatisation of the Public?” in Graz, Jean-Christophe and Noelke, Andreas, eds, Transnational Private Governance and Its Limits (New York: Routledge, 2007) 209 Google Scholar.

³³ Boyle, Alan and Chinkin, Christine, The Making of International Law (New York: Oxford University Press, 2007) at 24.Google Scholar

³⁴ Ibid at 25.

³⁵ For instance, when lawyers represent a client and concurrently or alternately engage in law development advocacy.

³⁶ DARS, supra note 7, Article 1, Commentary [emphasis added].

³⁷ See further Klabbers, supra note 21 at 271 (for a brief review of the international law principle that a breach of international law entails responsibility and a duty to repair).

³⁸ And unlike states, international organizations are not monolithic actors but, rather, of a “layered nature.” Ibid at 272.

³⁹ Ibid at 273, 283. The WTO’s constitutive agreement postulates that it is a legal entity. Marrakesh Agreement Establishing the World Trade Organization, 33 ILM 15 (1994) [Marrakesh Agreement]. See further discussion of this issue later in this article.

⁴⁰ So named after the convening in July 1944 of delegates from forty-four states in Bretton Woods, New Hampshire, for the purpose of devising a system of international economic cooperation for the post-Second World War era. The conference resulted in the establishment of the WB and the IMF. Some fifty years later, these would be supplemented by the creation of the WTO.

⁴¹ See generally Joseph, Sarah, Kinley, David, and Waincymer, Jeff, eds, The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Northampton, MA: Edward Elgar, 2009)CrossRefGoogle Scholar; Toufayan, Mark, “Between Solipsism and Empire (through Law): International Organizations and the Politics of Formalized Mimetism,” in Canadian Council on International Law, Responsibility of Individuals, States and Organizations Proceedings of the Thirty-Fifth Conference of the Canadian Council on International Law (Ottawa, ON: Canadian Council on International Law, 2007) 182 Google Scholar; and more specifically Astritis, Andy and Paradis, Michel “The Responsibility of International Financial Institutions and Their Member States: The Chixoy Dam Case at the Inter-American Commission on Human Rights,” in Canadian Council on International Law, ibid at 164)Google Scholar; “Rapporteur’s Report,” in Canadian Council on International Law, ibid at 211). For detailed discussion of the accountability of multilateral development banks, see Suzuki, Eisuke and Nanwani, Suresh, “Responsibility of International Organizations: The Accountability Mechanisms of Multilateral Development Banks” (2006) 27:1 Mich J Int’l L 178.Google Scholar

⁴² See, for example, Charnovitz, Steve, “Rethinking WTO Trade Sanctions” (2001) 95:4 AJIL 792 CrossRefGoogle Scholar; Sampson, Gary P, ed, The Role of the World Trade Organization in Global Governance (New York: United Nations University Press, 2001)Google Scholar; Marceau, Gabrielle, “WTO Settlement and Human Rights” (2002) 13:4 EJIL 753 CrossRefGoogle Scholar; and Petersmann, Ernst-Ulrich, “Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration” (2002) 13:3 EJIL 621 CrossRefGoogle Scholar; Albin, Cecilia, “Using Negotiation to Promote Legitimacy: An Assessment of Proposals for Reforming the WTO” (2008) 84:4 International Affairs 757 CrossRefGoogle Scholar. See also Ostry, supra note 17 at 10, observing that [t]he 1990’s anti-globalization movement was catalyzed by the WTO and the enemy that bound the disparate groups together was neo-liberalism (usually undefined). And the best (or worst) symbol of neo-liberalism was the WTO.”

⁴³ Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion), [1949] ICJ Rep 173 at 174–79 [emphasis added] [Reparations].

⁴⁴ Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion), [1980] ICJ Rep 73 at 89–90 [second emphasis added] [Interpretation].

⁴⁵ Ibid. This matter figures prominently in the RIO Commentaries, supra note 4, as well as in the scholarly debate, especially in regard to conduct in the course of United Nations (UN) peace keeping operations. See, for example, Gal-Or and Ryngaert, supra note 19.

⁴⁶ Sands, Philippe and Klein, Pierre, Bowett’s Law of International Institutions, 5th edition (London: Sweet and Maxwell, 2001)Google Scholar; Nollkaemper, Andre, “Constitutionalization and the Unity of the Law of International Responsibility” (2009) 16:2 Ind J Global Legal Stud 535 CrossRefGoogle Scholar; Alvarez, Jose, “International Organizations: Then and Now” (2006) 100 AJIL 324 CrossRefGoogle Scholar; Klabbers, Jan, “The Paradox of International Institutional Law” (2008) 5:1 Int’l Org L Rev 1.Google Scholar

⁴⁷ The lion’s share of the DARIO commentaries addressing substantive legal issues are devoted to responsibility arising in situations of armed conflict and corresponding peace operations. See ILC, “Text of the Draft Articles [on Responsibility of International Organizations Adopted by the Commission on First Reading] with Commentaries Thereto” (2011) 2:2 YB ILC 39 [DARIO Commentaries].

⁴⁸ See World Bank, The Inspection Panel at Fifteen Years: Accountability at the World Bank (2009), online: World Bank <http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTIONPANEL/o,,contentMDK:22333794~pagePK:64129751~piPK:64128378~theSitePK:380794,00.html>; “Independent Evaluation Office,” online: IMF <http://www.ieo-imf.org/ieo/pages/ieohome.aspx>.

⁴⁹ RIO Commentaries, supra note 4 at 2–3, General Commentary, paras 5–6 [emphasis added].

⁵⁰ Balding, Christopher and Wehrenfennig, Daniel, “Theorizing International Organizations: An Organizational Theory of International Institutions” (2011) 2:1 J Int’l Org Studies 7 at 13 Google Scholar. The WTO performs this role via various avenues, for example, when convening experts to discuss priorities for reform of WTO governance or fundamental human rights and the role of the WTO. See World Trade Organization, Global Problems, Global Solutions: Towards Better Global Governance, WTO Public Forum 2009 (2010) at 204 and 209, online: WTO <http://www.wto.org/english/forums_e/public_forum09_e/public_forum09_e.htm>.

⁵¹ The distinction between state and non-state membership is illustrated by the case of the European Union (EU), which is not a state but nevertheless a member of the WTO.

⁵² Balding and Wehrenfennig, supra note 50 at 17. On state economic and political strategizing of the use of WTO structures and process, see Davis, Christina L, Why Adjudicate? Enforcing Trade Rules in the WTO (Princeton, NJ: Princeton University Press, 2012).Google Scholar

⁵³ The special conditions placed on China when acceding to the WTO are known as “WTO-plus” obligations and provide for disciplines more stringent than the organization’s standard rules. See Ya Qin, Julia, “’WTO-Plus’ Obligations and Their Implications for the World Trade Organization Legal System: An Appraisal of the China Accession Protocol” (2003) 37:3 J World Trade 484.Google Scholar

⁵⁴ “Even though the WTO-plus obligations do not in themselves violate specific non-discrimination clauses of the WTO agreements, they do result in the creation of different classes of Members within the organization … Moreover, the creation of member-specific rules is potentially damaging to the WTO rule of law, a concept that has become increasingly important for the effective functioning of the WTO system.” Ibid at 514.

⁵⁵ Ibid at 510. General Agreement on Tariffs and Trade, 55 UNTS 194.

⁵⁶ This issue is addressed later in this article.

⁵⁷ Marrakesh Agreement, supra note 39. For instance, the preamble reads as follows: “Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade” (at preamble). On the DSB, see Qin, supra note 53 at 517.

⁵⁸ Stephan, Paul B, “The New International Law: Legitimacy, Accountability, Authority, and Freedom in the New Global Order” (1999) 70 U Colo L Rev 1555 at 1557 Google Scholar. Relevant private entities include civil society non-governmental organizations, multinational corporations, and business/industry/labour associations, many of which develop or administer international codes of conduct.

⁵⁹ See ibid at 1582 for reference to Albert O Hirschman and discussion of these options. For examples of the results of constraints exerted on the state by inter-national agreements and international organizations due to “a systematic built-in tendency toward collusion at the expense of citizens,” see Vaubel, Roland, “A Public Choice Approach to International Organization” (1986) 51 Public Choice 39 at 53.CrossRefGoogle Scholar

⁶⁰ Vaubel, supra note 59 at 51, explains that “the individual national politician has less of an incentive to monitor and improve the activities of international agencies.”

⁶¹ RIO, supra note 4 at 81, Article 50.

⁶² Petersmann, supra note 42.

⁶³ United States – Import Prohibition of Certain Shrimp and Shrimp Products (Appellate Body Report), WTO Doc DS58/AB/RW (2001), online: WTO <http://www.wto.org/english/tratop_e/dispu_e/58abrw_e.pdf>. Petersmann’s interpretation of this award is disputed by Howse, Robert, “Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann” (2002) 13:3 EJIL 651.CrossRefGoogle Scholar

⁶⁴ Brazil – Measures Affecting Patent Protection, Doc WT/DS199 (5 July 2001), online: WTO <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds199_e.htm>.

⁶⁵ Alston, Philip, “Resisting the Merger and Acquisition of Human Rights by Trade: A Reply to Petersmann” (2002) 13:4 EJIL 815 at 842.CrossRefGoogle Scholar

⁶⁶ Garcia, Frank J, “The Global Market and Human Rights: Trading Away the Human Rights Principle” (1999) 25:1 Brooks J Int’l L 51 Google Scholar. Garcia criticizes Joel Trachtman’s theory of trade-off devices for falling short in settling the dissonance between trade law and human rights law. See Trachtman, Joel P, “Trade and Problems: Cost-Benefit Analysis and Subsidiarity” (1998) 9 EJIL 32.CrossRefGoogle Scholar

⁶⁷ Garcia, supra note 66 at 73, 88.

⁶⁸ Ibid. See WTO, Singapore Ministerial Declaration, WTO Doc WT/MIN(96)/DEC (13 December 1996), online: WTO <http://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm> (where the WTO affirms commitment to international labour standards but considers the ILO to be the appropriate forum for trade labour issues) [Singapore Ministerial Declaration].

⁶⁹ Garcia, supra note 66 at 91.

⁷⁰ See Japan – Taxes on Alcoholic Beverages II (Appellate Body Report), WTO Docs WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (1996) at 31, online: WTO <http://www.mofa.go.jp/policy/economy/wto/cases/WTDS8ABR.pdf>: “WTO rules are not so rigid or so inflexible as not to leave room for reasoned judgements in confronting the endless and ever-changing ebb and flow of real facts in real cases in the real world. They will serve the multilateral trading system best if they are interpreted with that in mind.” For a similar approach regarding the WTO DSB following adoption of the DARS, see Marceau, supra note 42 at 773, 775, 789; Behboodi, Rambod, “Legal Reasoning and the International Law of Trade: The First Steps of the Appellate Body of the WTO,” in Mengozzi, Paulo, ed, International Trade on the Fiftieth Anniversary of the Multilateral Trade System (Milan, Italy: A Giuffrè, 1999) 302 at 306, 320, 336, 351.Google Scholar

⁷¹ Sands and Klein, supra note 46 at 115.

⁷² Jackson, John H, “Dispute Settlement and the WTO: Emerging Problems,” in WTO Secretariat, ed, From GATT to the WTO: The Multilateral Trading System in the New Millennium (The Hague: Kluwer Law International, 2002) 67 at 71.Google Scholar

⁷³ Ibid. See also, for example, Pauwelyn, Joost, “The Role of Public International Law in the WTO: How Far Can We Go?” (2001) 95:3 AJIL 535.CrossRefGoogle Scholar

⁷⁴ Marrakesh Agreement, supra note 39, Article II.1

⁷⁵ Ibid [emphasis added].

⁷⁶ Ibid [emphasis added].

⁷⁷ Ibid.

⁷⁸ Ibid, Article IX.1.

⁷⁹ Ibid.

⁸⁰ Ibid, Article V.1–2.

⁸¹ Ibid, Article V. Sands and Klein, supra note 46 at 492, observe that the World Bank group is not protected by a broad immunity from jurisdiction as the constituent instruments of the group’s organizations include a provision, common also in the constitutions of the majority of regional development banks, setting aside any such immunity.

⁸² Liability may arise in two ways. First, from WTO collaboration with international organizations of an executive character, and due to its own executive capacity (as discussed below) and, second, in reference to the “normative character” of the WTO, by application of non-contractual liability in the context of the WTO administrative and legislative activities. See Sands and Klein, supra note 46 at 515. See also analyses in Toufayan, supra note 41; Astritis and Paradis, supra note 41; Rigo Sureda, Andrés, “Informality and Effectiveness in the Operation of the International Bank for Reconstruction and Development” (2003) 6:3 J Int’l Econ L 565 CrossRefGoogle Scholar. This matter is addressed further in the next two sections.

⁸³ Marrakesh Agreement, supra note 39, Annex 2 on Understanding on Rules and Procedures Governing the Settlement of Disputes, Article 2.1 [Annex 2].

⁸⁴ Gal-Or, Noemi, “The Concept of Appeal in International Dispute Settlement” (2008) 19:1 EJIL 43 CrossRefGoogle Scholar.

⁸⁵ See also Shaffer, Gregory and Trachtman, Joel, “Interpretation and Institutional Choices at the WTO” (2011) 52:1 Va J Int’l L 103 at 123 Google Scholar: “The interpretive choices of the Appellate Body and panels in the WTO dispute settlement system can easily affect the allocation of powers among decision-making processes.” This may have far-reaching implications at the domestic and international levels.

⁸⁶ Singapore Ministerial Declaration, supra note 68 at para 19 [emphasis added].

⁸⁷ WTO, “Interpretation and Application of Article IV” at para 62, online: WTO <http://www.wto.org/english/res_e/booksp_e/analytic_index_e/wto_agree_ 02_e.htm#fntext65> [references omitted, emphasis added].

⁸⁸ Hoffmeister, Frank, “Litigating against the European Union and Its Member States: Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations?” (2010) 21:3 EJIL 723 at 742–43 [emphasis added]CrossRefGoogle Scholar. Hoffmeister examines whether the lex specialis principle applies to the attribution of conduct of EU member states to the EU where they act in execution of EU law (ibid at 747).

⁸⁹ Marrakesh Agreement, supra note 39 [emphasis added].

⁹⁰ Shaw, supra note 31 at 195.

⁹¹ Sands and Klein, supra note 46 at 475. The “attribution of legal personality simply means that the entity upon which it is conferred is a subject of international law and that it is capable of possessing international rights and duties” (ibid at 473).

⁹² WTO, Interpretation and Application of Article VIII at para 191, online: WTO <http://www.wto.org/english/res_e/booksp_e/analytic_index_e/wto_agree_03_e.htm#articleVIII> [emphasis added].

⁹³ Ibid.

⁹⁴ Marrakesh Agreement, supra note 39, Article VIII.4; Convention on the Privileges and Immunities of the Specialized Agencies, 16 August 1949, 33 UNTS 261 [Convention on Privileges]; Coordination of the Privileges and Immunities of the United Nations and of the Specialized Agencies, GA Res 179(0), UNGAOR, 2d Sess, UN Doc A/285 (1947).

⁹⁵ Ibid [emphasis added]. For analysis of the Convention on Privileges, supra note 94, and the liability of international organizations in international and domestic law, see Sands and Klein, supra note 46, chapter 15.

⁹⁶ Convention on Privileges, supra note 94, Article II.3. Although the WTO is a “related organization” and not a UN specialized agency, the two different types of international organizations are nonetheless sufficiently similar to allow an analogy between the provisions of the Marrakesh Agreement and those of the Convention on Privileges.

⁹⁷ “I have difficulties with the use of terms such as ‘gap’ or ‘to be completed,’ as they carry the connotation that something was missing from the text of the WTO. Nothing was missing.” Marceau, supra note 42 at 49. Many WTO obligations were drafted to allow member panels “’flexibility’ to enforce WTO norms or to assess WTO compliance” (ibid).

⁹⁸ Shaffer and Trachtman, supra note 85 at 123 use the term “executive” to describe such functions carried out by the organization’s secretariat (albeit to a fairly limited extent).

⁹⁹ Marrakesh Agreement, supra note 39, Article IX.1.

¹⁰⁰ Annex 2, supra note 83, Article 2(4), n 1. Referred to as a reverse-consensus process, this reinforces this article’s argument that the WTO is an autonomous international organization representing more than the sum of its member states.

¹⁰¹ Marrakesh Agreement, supra note 39, Article IX.

¹⁰² Ibid, Article IX.1.

¹⁰³ Ibid, Article IX.2.

¹⁰⁴ Ibid, Article IX.3.

¹⁰⁵ Sutherland, Peter, Sewell, John, and Weiner, David, “Challenges Facing the WTO and Policies to Address Global Governance,” in Sampsom, Gary, ed, The Role of the World Trade Organization in Global Governance (New York: United Nations University Press, 2001) at 104 Google Scholar. See also Sutherland, Peter, The Future of the WTO: Addressing Institutional Challenges in the New Millennium , World Trade Organization report (2004), online: WTO <http://www.ipu.org/splz-e/wto-symp05/future_WTO.pdf>.Google Scholar

¹⁰⁶ Scholte, Jan Aart, O’Brien, Robert, and Williams, Marc, “The WTO and Civil Society” (1999) 33:1 J World Trade 107 at 108 [emphasis added].Google Scholar

¹⁰⁷ Ibid.

¹⁰⁸ “Understanding the WTO: The Organization — Whose WTO Is It Anyway?” online: WTO <http://www.wto.org/english/thewto_e/whatis_e/tif_e/org1_e.htm>.

¹⁰⁹ Ibid.

¹¹⁰ See, for example, ibid: “In this respect, the WTO is different from some other international organizations such as the World Bank and International Monetary Fund. In the WTO, power is not delegated to a board of directors or the organization’s head.” But see McRae, Donald M, “The WTO in International Law: Tradition Continued or New Frontier?” (2000) 3:1 J Int’l Econ L 27.CrossRefGoogle Scholar

¹¹¹ Understanding the WTO: Developing Countries, Overview, online: WTO <http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm>.

¹¹² The WTO lists its functions as consisting of administering WTO trade agreements, providing a forum for trade negotiations, handling trade disputes, monitoring national trade policies, providing technical assistance and training for developing countries, and cooperating with other international organiza-tions. See “What Is the WTO?,” online: WTO <http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm>.

¹¹³ Ruggiero Renato, “A Shared Responsibility: Global Policy Coherence for Our Global Age” (Speech delivered at the Conference on Globalization as a Challenge for German Business; Export Opportunities for Small and Medium-Sized Companies in the Environmental Field, 9 December 1997), online: WTO Speeches <http://www.wto.org/english/news_e/sprr_e/bonn_e.htm>.

¹¹⁴ Lamy, Pascal, “The Place of the WTO and Its Law in the International Legal Order” (2007) 17:5 EJIL 969 at 971 [emphasis added].Google Scholar

¹¹⁵ Ibid at 972. Referring to lessons learned from the GATT experience, Jackson observes that “[w]ith very meager treaty language as a start, plus divergent alternative views about the policy goals of the system, GATT, like so many human institutions, took on a life of its own.” Jackson, supra note 72 at 69.

¹¹⁶ Lamy, supra note 114 at 972.

¹¹⁷ Ibid at 977. This is debatable: “The WTO is not sui generis; it is one among international organizations.” Steger, Debra, “Why Institutional Reform of the WTO Is Necessary,” in Steger, Debra, ed, Redesigning the World Trade Organization forthe Twenty-first Century (Ottawa: International Development Research Centre, 2010) 1 at 3 Google Scholar. Note also Jackson’s critical comment about the pre-WTO argument that the GATT represents a “separate regime,” in some way insulated from the general body of international law — an argument subsequently dismissed by the WTO Appellate Body. Jackson supra note 72 at 71.

¹¹⁸ Lamy, Pascal, “Global Governance Requires Localising Global Issues” (Speech delivered at the Oxford Martin School, Oxford University, 8 March 2012), online: WTO <http://www.wto.org/english/news_e/sppl_e/sppl220_e.htm>..>Google Scholar

¹¹⁹ Understanding the WTO: Who We Are, online: WTO <http://www.wto.org/english/thewto_e/whatis_e/who_we_are_e.htm>; Lamy, Pascal, “Keeping Markets Open Is Good Global Citizenship” (Speech delivered at the Jubilee Conference of the National Committee for International Co-operation and Sustainable Development of the Netherlands, 4 February 2012), online: WTO <http://www.wto.org/english/news_e/sppl_e/sppl215_e.htm>..>Google Scholar In Reparations, supra note 43 at 178, the International Court of Justice observed that the nature of a subject of international law “depends upon the needs of the community” [emphasis added].

¹²⁰ Lamy, supra note 114 at 975 [emphasis added].

¹²¹ “In the case of the WTO, the Appellate Body has acknowledged that the GATT remains firmly imbedded in general international law, stating that the Agreement ‘is not to be read in clinical isolation from public international law.’ Thus, to avoid confusion, the term ‘self-contained regime’ should not be used to circumscribe the hypothesis of a fully autonomous legal subsystem.” Simma, Bruno and Pulkowski, Dirk, “Of Planets and the Universe: Self-Contained Regimes in International Law” (2006) 17:3 EJIL 483 at 492.CrossRefGoogle Scholar

¹²² Cosbey, Aaron, “A Sustainable Development Roadmap for the WTO” (2009) International Institute for Sustainable Development (IISD) at 36, online: IISD <http://www.iisd.org/pdf/2009/sd_roadmap_wto.pdf>.Google Scholar

¹²³ See, for example, Cosbey, supra note 122: “How well is the WTO doing at performing this critically important job of multilateral governance? Not well.” Further, “[a] compelling case can be made that WTO has, thanks to the sort of pressure that this paper represents, taken on a number of topics they are poorly qualified to deal with and have consequently bungled. Much of the current environmental agenda in the WTO could fit that” (at x [emphasis added]). See also Jackson, supra note 72; Drache, Daniel, “Trade, Development and the Doha Round: A Sure Bet or a Train Wreck?” Centre for International Governance Innovation Working Paper no 5 (2006), online: CIGI <http://www.cigionline.org> Google Scholar; Petersmann, Ernst-Ulrich, “The WTO Constitution and Human Rights” (2000) 3:1 J Int’l Econ L 19 CrossRefGoogle Scholar; Petersmann, Ernst-Ulrich, “Human Rights and International Economic Law in the Twenty-First Century: The Need to Clarify Their Interrelationships” (2001) 4:1 J Int’l Econ L 3 CrossRefGoogle Scholar; Scholte, O’Brien, and Williams, supra note 106; Rosa Cedro, Rafael and Furtado Vieira, Bruno, “John Rawls’ Justice as Fairness and the WTO: A Critical Analysis of the Initial Position of the Multilateral Agricultural Negotiation” (2010) 3:2 Law and Development Rev 121 Google Scholar; Marceau, supra note 42; Sutherland, Sewell, and Weiner, supra note 105; Shaffer and Trachtman, supra note 85; Elsig, supra note 18; Smith, James, “Inequality in International Trade? Developing Countries and Institutional Change in WTO Dispute Settlement” (2004) 11 :3 Rev Int’l Political Economy 542 CrossRefGoogle Scholar; Monika Zagel, Gudrun, “Human Rights Accountability of the WTO” (2007) 1 Hum Rts & Int’l Legal Discourse 335.Google Scholar

¹²⁴ This is further explored later in the section discussing RIO Article 10 and its relevance to the WTO.

¹²⁵ Hoffmeister, supra note 88 at 746.

¹²⁶ See Cosbey, supra note 122 at 12. See also Jackson, supra note 72 at 68.

¹²⁷ Marceau, supra note 42 at 34. Further, “[e]ven if the WTO applicable law seems to exclude the direct application of rules on state responsibility, or some of them, these rules — to the extent they are customary — bind WTO members, as states, and remain a relevant benchmark for the interpretation of WTO law which is presumed to evolve consistently with international law” (at 35–36).

¹²⁸ To avert such an occurrence, the WTO might wish, for example, to define the meaning of conflict. For detailed discussion, including examples from WTO case law, see Marceau, supra note 42 at 60–67.

¹²⁹ The trend of adjudicative institution building confirms that international law is a “living tree.” The eventuality of an international court or tribunal with jurisdiction over matters relating to the international responsibility of international organizations cannot, therefore, be dismissed out of hand. In this regard, see Cuba’s comment on the DARIO concerning a dispute settlement mechanism. ILC, Responsibility of International Organizations: Comments and Observations Received from Governments, UNGAOR, UN Doc A/CN.4/636 (2011) at 7 [Comments and Observations from Governments].

¹³⁰ RIO, supra note 4, Article 64.

¹³¹ In the DARIO, supra note 8, the lex specialis provision appeared as Article 63. Other than minor phrasing amendments, the text of the provision remained substantially unchanged in RIO Article 64.

¹³² Comments and Observations from Governments, supra note 129 at 14.

¹³³ Ibid [emphasis added].

¹³⁴ Comments and Observations from International Organizations, supra note 9 at 4. Note that the UN comments emphasize the common traits shared by international organizations rather than their uniqueness.

¹³⁵ RIO Commentaries, supra note 4 at 100.

¹³⁶ Ibid.

¹³⁷ See RIO Commentaries, supra note 4 at 101, Article 64, Commentary, para 4, citing European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WTO Doc WT/DS174 (2006), online: WTO <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds174_e.htm>. In this award, the WTO panel endorsed the European Community’s (EC) position regarding sui generis constituent law: “[The WTO panel] accepted the European Communities’ explanation of what amounts to its sui generis domestic constitutional arrangements that Community laws are generally not executed through authorities at Community level but rather through recourse to the authorities of its member States which, in such a situation, ‘act de facto as organs of the Community, for which the Community would be responsible under WTO law and international law in general’” (at para 7.725). The RIO Commentaries note that this approach implicitly “admit[s] the existence of a special rule on attribution, to the effect that, in the case of a European Community act binding a member State, State authorities would be considered as acting as organs of the Community.” See RIO Commentaries, supra note 4 at 101, Article 64, Commentary, para 4.

¹³⁸ See Hoffmeister, supra note 88 at 724–25: “Next to the frequent use of the WTO dispute settlement system (as of March 2009 the EC had been involved in seventy-nine cases as a complainant, in sixty-four as a respondent and in yet another eighty-two as a third party), it was also party to the (recently settled) dispute before a special chamber of the International Tribunal on the Law of the Sea. Moreover, the European Commission intervened in a number of cases before the European Court of Human Rights and is currently engaged in three cases before ICISD [sic] tribunals. Only before the International Court of Justice has the European Union not yet appeared. However, even this possibility is not completely ruled out.”

¹³⁹ “This approach implies admitting the existence of a special rule on attribution, to the effect that, in the case of a European Community act binding a member State, State authorities would be considered as acting as organs of the Community.” RIO Commentaries, supra note 4 at 101, Article 64, Commentary, para 4. No further explanation on this point was provided by the ILC.

¹⁴⁰ European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Doc WT/DS291/R, WT/DS292/R and WT/DS293/R (2006), online: WTO <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds291_e.htm>; RIO Commentaries, supra note 4 at 101.

¹⁴¹ Bosphorus Hava Yollari Turizm ve Ticaret AS v Ireland, No 45036/98, [2005] VI ECHR 152 at para 137.

¹⁴² Indeed, objecting to the possible effect of the RIO in matters of attribution to an international organization of a wrongful act by a member state, the UN questions the ILC’s heavy reliance on EU experience. Comments and Observations from International Organizations, supra note 9 at 35.

¹⁴³ Ibid at 46. In its commentary on RIO Article 64, the ILC makes reference to RIO Articles 22 and 52. RIO Commentaries, supra note 4, Article 64, Commentary, para 8. Yet both Articles 22 and 52 refer to a “responsible international organization” and thus presume that a breach has been established. By implication, therefore, their reliance on lex specialis is irrelevant to determination of the existence of a breach.

¹⁴⁴ For relevant discussion concerning the EU, see Talmon, Stefan, “Responsibility of International Organizations: Does the European Community Require Special Treatment?” in Ragazzi, Maurizio, ed, International Responsibility Today (Boston, MA: Brill, 2005) 405.Google Scholar

¹⁴⁵ “’Lex specialis’ [is] a buzzword (mis)used all too often in the context of the DARIO.” D’Aspremont and Ahlborn, supra note 8 (under heading “the ‘rules of the organization’”). While “lex specialis” is, of course, not synonymous with “sui generis,” logically a sui generis international organization will likely have its own internal lex specialis.

¹⁴⁶ See Alvarez, supra note 2.

¹⁴⁷ See ibid; Pauwelyn, supra note 73 at 539. See also Hoffmeister, supra note 88 at 745–46; Boon, Kristen E, “The Role of Lex Specialis in the Articles on the Responsibility of International Organizations,” Seton Hall Public Law Research Paper no 2230336 (2012), online: SSRN <http://ssrn.com/abstract=2230336>.Google Scholar

¹⁴⁸ “Legal Responsibility of International Organisations in International Law” (Summary of the International Law Discussion Group meeting held at Chatham House, February 2011) at 9, online: Chatham House <http://www.chathamhouse.org/sites/default/files/public/Research/InternationalLaw/il100211summary.pdf>.

¹⁴⁹ Gaja, supra note 6 at 15.

¹⁵⁰ Ibid.

¹⁵¹ Ibid [emphasis added].

¹⁵² RIO, supra note 4, Article 10.

¹⁵³ The RIO do not address all these instances and, hence, leave the regime open ended.

¹⁵⁴ See, in particular, RIO Commentaries, supra note 4 at 11–12, Article 2, Commentary, paras 16–21.

¹⁵⁵ Ibid at 11, para 18 [emphasis added].

¹⁵⁶ Ahlborn, Christiane, “The Rules of International Organizations and the Law of International Responsibility,” ACIL Research Paper no 2011–03 (SHARES Series) (2011) at 1, online: SHARES <http://www.sharesproject.nl>.Google Scholar

¹⁵⁷ Ibid.

¹⁵⁸ RIO, supra note 4 at 3, Article 5, which reads: “The characterization of an act of an international organization as internationally wrongful is governed by international law.” This is apparently the ILC’s response to comments by the EC that rejected the proposition that its internal law forms part of international law. See Comments and Observations from International Organizations, supra note 9 at 24–25.

¹⁵⁹ The expression was first introduced in Article 5 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. For a detailed discussion of the evolution of the expression, see Ahlborn, supra note 156.

¹⁶⁰ Ibid at 5–6.

¹⁶¹ See d’Aspremont, supra note 3.

¹⁶² RIO Commentaries, supra note 4 at 3, General Commentary, para 8.

¹⁶³ Ibid.

¹⁶⁴ “The question may be raised whether all the obligations arising from rules of the organization are to be considered as international obligations. The legal nature of the rules of the organization is to some extent controversial.” Ibid at 99, Commentary to Article 10, para 5. See further Kristen E Boon, “ILC Adopts Articles on the Responsibility of International Organizations” (2011), online: Opinio Juris <http://opiniojuris.org/2011/06/13/ilc-adopts-articles-on-the-responsibility-of-international>.

¹⁶⁵ RIO, supra note 4, Article 10.1.

¹⁶⁶ DARIO, supra note 8 at 58, Article 9.

¹⁶⁷ RIO Commentaries, supra note 4 at 100–1, Commentary to Article 10, para 9.

¹⁶⁸ Ibid. Further, “[f]or an international organization many obligations are likely to arise from the rules of the organization” (at 99, para 4 [emphasis added]).

¹⁶⁹ “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.” RIO, supra note 4 at 3, Article 4 [emphasis added]. In this context, a “gap” to be filled by reference to international law arises. See Mexico’s comment that a “key criterion for the attribution of responsibility to international organizations, particularly in cases where the constituent instrument of the organization contained no express provision on the matter, continued to be that of effective control of the acts in question.” Gaja, Giorgio, Special Rapporteur, Eighth Report on Responsibility of International Organizations , UNGAOR, UN Doc A/CN.4/640 (2011) at 12, n 21.Google Scholar