¹ This article represents a shortened version of our broader manuscript (over 26,000 words) “Continuity in Rupture: The International Organisation in the 21st Century,” presented at Ruptures in International Law. A Workshop of the European Society of International Law's Interest Group on Legal Theory, 1 – 2 September 2010, Cambridge, UK.Google Scholar

² International Law Commission, Draft Articles on the Responsibility of International Organizations, May 30, 2011, A/66/10, [hereinafter DARIO]. An earlier version was adopted as International Law Commission, Draft Articles on the Responsibility of International Organizations chap. IV, 7 August 2009, (Supplement 10) A/64/10, [hereinafter DARIO 2009].Google Scholar

³ International Law Commission, Draft Article on the Responsibility of International Organizations: Comments and Observations Received From Governments and International Organizations, 6 2004, UN Doc. A/CN.4/545, 25 [hereinafter ILC Comments 2004]; International Law Commission, Draft Article on the Responsibility of International Organizations: Comments and Observations Received From Governments and International Organizations, 5 August 2005, UN Doc. A/CN.4/556, 12 [hereinafter ILC Comments 2005].Google Scholar

** The WTO satisfies the definitional requirements of an IO “possessing its own international legal personality” according to DARIO Article 2, matching the WTO's “legal personality” as embodied in the Marrakesh Agreement Establishing the World Trade Organization art. VIII.1,15 April 1994 [hereinafter Marrakesh Agreement].Google Scholar

⁴ As it currently stands, the international law on the international responsibility of IOs is under-developed indeed. The responsibility of IOs is normally internally oriented and concerns the relations between the IO and its staff. This is reflected, for instance, in the establishment of administrative tribunals by the chief economic IOs, namely the World Bank Group (see The World Bank Group, World Bank Administrative Tribunal, available at: http://lnweb90.worldbank.org/crn/wbt/wbtwebsite.nsf/(resultsweb)/about?opendocument, last accessed: 24 April 2012) and the International Monetary Fund (see The International Monetary Fund, IMF Administrative Tribunal, available at: http://www.imf.org/external/imfat/index.htm, last accessed: 24 April 2012— albeit not the WTO). To be sure, the DARIO, non-conclusive as yet, represents the crystallization of an idea that was a hypothetic proposition until very recently. The 1972 “Convention on International Liability for Damage Caused by Space Objects” represents a prudent step in this direction. Its Article XXII.1 reads as follows:Google Scholar

** “In this Convention, […], references to States shall be deemed to apply to any international intergovernmental organisation which conducts space activities if the organisation declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organisation are State Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. (Convention on International Liability for Damage Caused by Space Objects art. XXII.1, 29 March 1972, 961 U.N.T.S. 187 [emphasis added]).Google Scholar

** The likelihood of international responsibility of an IO was next considered in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (not in force as of January 2011). One of the stumbling blocks has been the inability to settle the issue of the rights and/or obligations of Member States of an IO party to a treaty. Nevertheless, the convention has been “generally accepted as the applicable law and is widely used as a handy written guide in practice” (Karl Zemanek, Introduction on the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Audiovisual Library of International Law (2008), available at: http://untreaty.un.org/cod/avl/ha/vcltsio/vcltsio.html, last accessed: 24 April 2012).Google Scholar

** This short history, which informed the ILC's Working Group report (International Law Commission, Responsibility of International Organizations Supplement 10 (2002), UN GAOR, 57th Session, UN Doc. A/57/10), and the sparse opinio juris in this matter likely explain the heavy reliance of the ILC on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd Session (2001), and submitted to the General Assembly as a part of the Commission's report covering the work of that session (A/56/10)). The report, which contains also commentaries on the draft articles, appears as corrected in the Yearbook of the International Law Commission, 2001, vol. II (Part Two) [hereinafter DARS]. It certainly intimates the innovative nature of the DARIO enterprise. It should therefore not come as a surprise that the DARIO has been drafted in view of potentially applying to all IOs that engage in unlawful actions which entail a wide spectrum of consequences ranging from the extremely and immediately harmful effects caused during UN peace operations to the medium and long term outcomes of WTO backed sanctions.Google Scholar

⁵ Apportioning liability between different actors is in fact one of the most promising research themes in international law. See notably the SHARES (Shared Responsibility in International Law) project headed by André Nollkaemper at the Amsterdam Center of International Law: Amsterdam Center for International Law, André Nollkaemper granted an ERC Advanced Grant, University of Amsterdam, Dec. 10, 2009, available at: http://www.jur.uva.nl/aciluk/news_new_publications.cfm/78D2F1D5-1321-B0BE-A4818911C56D4103 (last accessed: 24 April 2012).Google Scholar

⁶ For instance, as judicial decisions made by the WTO are implemented by the Member States provided that the latter retain some implementing discretion.Google Scholar

⁷ These differences ultimately find their basis in the functionally delimited powers and personalities of lOs. It is this principle of specialty which sets IOs so much apart from States, which are (almost all) legally uniform (same rights, duties, powers, and privileges).Google Scholar

⁸ Charter of the United Nations art. 103, 26 June 1945, 1 U.N.T.S. XVI.Google Scholar

⁹ See ILC Comments 2004, supra note 3, at 10.Google Scholar

¹⁰ Id. at 33.Google Scholar

¹¹ Id.Google Scholar

¹² Trachtman, Joel, The Constitutions of the WTO, 17 (3) European Journal of International Law (EJIL) 623–646 (on the question of whether to define the WTO functions more firmly). The WTO has been referred to as member-driven, to distinguish the WTO from the executive-type WTO and WB Group, for instance. See José Alvarez, Misadventures in Statehood, EJIL Talk!, Sep. 29, 2010, available at: http://www.ejiltalk.org/misadventures-in-statehood/#more-2621 (last accessed: 24 April 2012); Margaret Liang, Evolution of the WTO: Decision-Making Process, 125 Singapore Yearbook of International Law (SYBIL, 2005); Ngaire Woods & Amrita Narlikar, Governance and the Limits of Accountability: The WTO, The IMF, and the World Bank, 53(170) Int. Soc. Sci. J. 570 (2002). See also infra, Part C. I.Google Scholar

¹³ Including the system of public international law.Google Scholar

¹⁴ Selected works include Anna Lanoszka, The World Trade Organization. Changing Dynamics in the Global Political Economy (2009); Errol Mendes & Ozay Mehmet, Global Governance, Economy and Law (2003); Gary P. Sampson, The WTO and Sustainable Development (2005); Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003); Kent Jones, Who's Afraid of the WTO? (2004); Robert Howse & Ruti G. Teitel, Beyond the Divide: the International Covenant on Economic, Social and Political Rights and the World Trade Organization, in The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Sarah Joseph, David Kinley, & Jeff Waincymer eds., 2009); Fatoumata Jawara & Aileen Kwa, Behind the scenes at the WTO: the real world of international trade negotiations (2003).Google Scholar

¹⁵ Summary record of the 2751st meeting, UN Doc. A/CN.4/SR.2751, Yearbook of the International Law Commission, Vol. 1, at 4 (2003) [hereinafter Yearbook ILC 2003].Google Scholar

¹⁶ Marrakesh Agreement, art. VIII. 1.Google Scholar

¹⁷ Reparations for Injuries Suffered in the Service of the United Nations: Advisory Opinion, 1949 I.C.J. 174 (Apr. 11, 1949)[hereinafter Reparations]; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt: Advisory Opinion, 1980 I.C.J. 73 (Dec. 20, 1980); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 95 (Jul. 8, 1996).Google Scholar

¹⁸ Anonymous reviewers observed that given the assumption that international responsibility is not a concern for the WTO, owing to its structure and operation, theoretically this represents an excellent question. Consistent with this overall view, no publications are known which have dealt with WTO responsibility. This is contradicted with a scholarly literature replete with discussions on WTO's accountability. These studies stretch the spectrum from claims faulting the WTO for lack of legitimacy altogether to specific areas such as development, the environmental protection, human rights, and so on, for which the WTO regime has been found to be culpable. The seminal work summarizing these views has been the WTO's publication, the so-called Sutherland Report; see Panitchpakdi, Supachai, Sutherland Report, The Future of the WTO – Addressing Institutional Challenges in the New Millennium, Report by the Consultative Board to the Director-General, XII–2004, available at: http://www.wto.org/english/thewto_e/10anniv_e/future_wto_e.pdf (last accessed: 24 April 2012).Google Scholar

¹⁹ As well as the impact of the organization, an issue to which we attend in the next section.Google Scholar

²⁰ Lanoszka, supra note 14, at 9.Google Scholar

²¹ Jawara & Kwa, supra note 14 at 149–150, 196, 296.Google Scholar

²² Marrakesh Agreement, supra note 16, Article IV: Structure of the WTO, at paras. 2,3, and 4.Google Scholar

²³ Marrakesh Agreement, supra note 16.Google Scholar

²⁴ For instance, in the case of the 2003 Trade Policy Review of Senegal (see Howse & Teitel, supra note 14, at 55–56).Google Scholar

²⁵ New procedures require “timely conduct, adoption, possible compensation, or retaliatory actions,” see Lanoszka, supra note 14, at 53. Retaliation permits ‘cross-retaliation’ meaning that an aggrieved Member States can retaliate by not reciprocating, through denial of benefit of other treaty provisions, different from those breached by the offending Member State. See also Mendes & Mehmet, supra note 14, at 83.Google Scholar

²⁶ Marrakesh Agreement, supra note 16, Article 16: Adoption of Panel Reports.Google Scholar

²⁷ Lanoszka, supra note 14, at 40.Google Scholar

²⁸ Pauwelyn, supra note 14, at 45.Google Scholar

²⁹ Pauwelyn, supra note 14, at 45.Google Scholar

³⁰ Marrakesh Agreement, supra note 3.Google Scholar

³¹ Mendes & Mehmet, supra note 14 at 109.Google Scholar

³² Lanoszka, supra note 14 at 177.Google Scholar

³³ Lanoszka, supra note 14 at 232.Google Scholar

³⁴ Selected essays (without order of preference) include: Jackson, John, Dispute Settlement and the WTO: Emerging Problems, in From GATT to the WTO: The Multilateral Trading System in the New Millennium 67 (The WTO Secretariat ed., 2000); James Smith, Inequality in International Trade? Developing Countries and Institutional Change in WTO Dispute Settlement, 11 Rev. of Int'l. Pol. Econ. 542 (2004); The Role of the World trade Organization in Global Governance (Gary Sampson ed., 2001); Gabrielle Marceau, WTO Settlement and Human Rights, 13 EJIL 753 (2002); Steve Charnovitz, The WTO and Cosmopolitics, 7 JIEL 675 (2004); Ernst-Ulrich Petersmann, Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, 13 EJIL 621 (2002). Petersmann's article elicited a fierce debate on EJIL's 2002 pages.Google Scholar

³⁵ Lanoszka, supra note 14, at 51.Google Scholar

³⁶ For an account of such incidents see Jawara & Kwa, supra note 14.Google Scholar

³⁷ Mendes & Mehmet, supra note 14, at 74.Google Scholar

³⁸ Mendes & Mehmet, supra note 14, at 88.Google Scholar

³⁹ Mendes & Mehmet, supra note 14, at 88, 105 (where the same argument is applied to environmental standards).Google Scholar

⁴⁰ Mendes & Mehmet, supra note 14, at 110.Google Scholar

⁴¹ Howse & Teitel, supra note 14, at 43, 45.Google Scholar

⁴² In this context, see the analysis of Mendes & Mehmet, supra note 14 at ch. 2, on the likelihood of WTO relationship with the International Labour Organization (ILO), World Health Organization (WHO), and various multilateral environmental treaties, and the similar approaches taken in the following: see also Howse & Teitel, supra note 14, at chs. 11–13; Sampson, supra note 14 (who emphasizes the aspect of involvement with other IOs and coherence in the work of IOs). The requirement to cooperate (where appropriate) with the Bretton Woods international financial institutions (World Bank and IMF) is stipulated in Marrakesh Agreement, supra note 16 at Article III.5: Functions of the WTO. The cooperation between the Bretton Woods institutions and the WTO, which followed up on Article III.5, was urged in a decision by the WTO General Council in late 1996 (Agreements Between the WTO and the IMF and the World Bank, 18 November 1996, WT/L/194, available at: http://www.wto.org/english/thewto_e/coher_e/wtl194_e.doc, last accessed: 24 April 2012), following which cooperation agreements were signed between the WTO and the IMF (1996), and between the WTO and the World Bank (1997). The agreements were designed to enhance coherence in global economic policymaking and provide for several avenues of cooperation. Cooperation with other international institutions is provided in Marrakesh Agreement, supra note 16 at Article V: Relations with Other Organizations, and refers to both “other intergovernmental organizations that have responsibilities related to those of the WTO” (Marrakesh Agreement, supra note 16 at Article V. 1 [emphasis added]) and “non-governmental organizations concerned with matters related to those of the WTO” (Marrakesh Agreement, supra note 16 at Article V.2).Google Scholar

⁴³ Marrakesh Agreement, supra note 16.Google Scholar

⁴⁴ As in the case of medicines and the conflict diamonds (Howse & Teitel, supra note 14 at 47, 68); concerning health (European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, 12 March 2001, WT/DS135/AB/R, available at: http://www.wto.org/english/tratop_e/dispu_e/135abr)_e.pdf, last accessed: 24 April 2012); discussed in the context of our argument (Mendes & Mehmet, supra note 14 at 107; Sampson, supra not 14 at 295); regarding the environment, see WTO Appellate Body, U.S. - Import Prohibition of Certain Shrimp and Shrimp Products, 12 October 1998, WT/DS58/AB/R; Appellate Body Report, U.S. - Import Prohibitions of Certain Shrimp & Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, 22 October 2001, WT/DS58/AB/RW; discussed in the context of our argument in Lanoszka, supra note 14 at 179; Sampson, supra note 14 at 295. For additional similar arguments based on WTO rulings see Pauwelyn, supra note 14 at 20–23.Google Scholar

⁴⁵ Doha Declaration on the TRIPS Agreement and Public Health, 14 November 2001, WTO Doc. WT/MIN(01)DEC/W/2.Google Scholar

⁴⁶ DARIO, supra note 2 at art. 64.Google Scholar

⁴⁷ Lamy, Pascal, The Place of the WTO and its Law in the International Legal Order, 17 EJIL 969, 971 (2006).Google Scholar

⁴⁸ Id. at 972.Google Scholar

⁴⁹ Id.Google Scholar

⁵⁰ Id. at 977 [emphasis added].Google Scholar

⁵¹ Id. at 975 [emphasis added].Google Scholar

⁵² We will not discuss the adjudicative bodies with which such claim may be filed, nor will we address the question whether special treaty provisions stipulating the procedural aspects of a dispute settlement mechanism amount to lex specialis - all of which are subjects beyond the scope of this paper.Google Scholar

⁵³ WTO Panel Report, European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS174/R, 15 March 2005, para. 7.725 (“EC - Trademarks and Geographical Indications (US)“); see also DARIO, supra note 2, at 162.Google Scholar

⁵⁴ Interestingly, at least on its face, Commentary 4 to Article 64 (see DARIO, supra note 2) makes mention of the WTO's own ruling endorsing the European Communities’ position regarding sui generis constitutional law. However, pursuant to this special rule – which is, in fact, a singular rule of the EC rather than the WTO, albeit recognized by the WTO – the EC and not the EC Member States would be responsible under WTO and general international law for the execution of EC laws by Member States. Commentary 4 to Article 64 DARIO reads as follows: “A different view was recently endorsed in European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs by a World Trade Organization (WTO) panel, which “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.’ 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.” See id. at 167 [emphasis added]. This view was reiterated in European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R & WT/DS293/R, 29 September 2006, at 7.101.Google Scholar

⁵⁵ Note, however, that while EU law distinguishes European citizens from foreigners concerning access to EU justice, it does not preclude claims against it by its Member States and their citizens. This is an important distinction in the comparison of one sui generis IO and another – here the EU and WTO – the former providing for lex specialis in matters of responsibility, while the latter does not.Google Scholar

⁵⁶ Note that the ‘automatic’ applicability of the lex specialis principle has been fiercely debated, e.g. in the area of international humanitarian law and concerning the proliferation of international courts and tribunals.Google Scholar

⁵⁷ Referring to Article 10. 2, Part II on the Internationally Wrongful Act of an International Organization, Chapter Ill Breach of an International Obligation, DARIO supra note 2, at 98 [emphasis added].Google Scholar

⁵⁸ Id. Google Scholar

⁵⁹ Part II on the Internationally Wrongful Act of an International Organization, Chapter III Breach of an International Obligation, DARIO 2009, supra note 2, at 77 [emphasis added](“regardless of the origin or character of the obligation concerned’ in DARIO Article 10.1, id.)Google Scholar

⁶⁰ Article 10.2, DARIO, id. at 96–97.Google Scholar

⁶¹ DARIO, supra note 2 at 98.Google Scholar

⁶² See the interesting analysis by Pauwelyn, supra note 14, and his argument to the effect that the WTO is not a “closed legal circuit” (35), and certainly cannot be understood to be “self-contained” in the sense of the Permanent Court of International Justice in the Wimbledon case (id.) nor could the ICJ concept of “self-contained regime” in the Teheran Hostages case be applicable to the responsibility of an IO (id., 36).Google Scholar

⁶³ An international organization which coerces a State or another international organization to commit an act is internationally responsible for that act if:Google Scholar

** (a) The act would, but for the coercion, be an internationally wrongful act of the coerced State or international organization; andGoogle Scholar

** (b) The coercing international organization does so with knowledge of the circumstances of the act. See also, id. at 86.Google Scholar

** Note that the word “recommendations” present in Article 16 of DARIO 2009 was deleted for the purpose of Article 17 of DARIO. See also id. at 88.Google Scholar

⁶⁵ For a possible scenario of how such conflict may play out see, Andy Astritis and Michel Paradis, The Responsibility of International Financial Institutions and their Member States: The Chixoy Dam Case at the Inter-American Commission on Human Rights, Responsibility of Individuals, States and Organizations. Proceedings of the 25^th Annual Conference of the Canadian Council of International Law (2006). In their paper, the authors discuss the risks associated with public infrastructure projects, which are financed by the World Bank and the Inter-American Development Bank, and which may cause harm to basic human rights. When such risks were obvious (as they were in the case study before them, of the Chixoy Dam in Guatemala), involved non-State actors (in this case, international financial institutions) which did not consider the risk and went ahead anyway by lending the money to the government, they should be considered to be carrying with international responsibility. See also Howse & Teitel, supra note 14, at 42–47.Google Scholar

⁶⁶ Commentary 1 art. 17 is instructive. DARIO, supra note 2, at 106. The subsequent commentary explains the deletion of Article 16 of DARIO 2009, in response to comments received by states and lOs concerning issues different from those discussed here. Eighth report on responsibility of international organizations, A/CN.4/640, 14 March 2011 [hereinafter Eighth Report].Google Scholar

⁶⁷ Commentary 1 art. 17, Id. Google Scholar

⁶⁸ Commentary 5 to Article 17 (interpreting the article as attributing liability to the organization for a third party injury so as to “allow the third party […] to seek a remedy even before the act is committed”). Id. at 106.Google Scholar

⁶⁹ Commentary 44 to Article 16 (interpreting the article as attributing liability to the organization for a third party injury so as to “allow the third party […] to seek a remedy even before the act is committed.” DARIO, supra note 2, at 105 [emphasis added].Google Scholar

⁷⁰ Commentary 5 to Article 17, id., clarifies in this respect: “In the case of a binding decision paragraph 1 does not stipulate as a precondition, for the international responsibility of an international organization to arise, that the required act be committed by Member States or international organizations. Since compliance by members with a binding decision is to be expected, the likelihood of a third party being injured would then be high. It appears therefore preferable to hold the organization already responsible and thus allow the third party that would be injured to seek a remedy even before the act is committed. Moreover, if international responsibility arises at the time of the taking of the decision, the international organization would have to refrain from placing its members in the uncomfortable position of either infringing on their obligations under the decision or causing the international responsibility of the international organization, as well as possibly incurring their own responsibility.” See also id. at 106.Google Scholar

** Note that while Commentary 4 explains “coercion” in connection with other DARIO provisions, which may open possibilities for claims of international responsibility of the WTO, we are leaving this theoretical discussion for another time.Google Scholar

** While addressing the comments of states and IOs, the Eights Report's specifies that “[n]o proposal of amendment to the text of the draft articles is made in this section,” Commentary 1, art. 17, supra note 67, at 39. Accordingly, Article 17 of DARIO stresses the act of circumvention but leaves several aspects of the comments unaddressed.Google Scholar

⁷¹ DARIO, Article 17 Commentary 8 explains in this respect: “Paragraph 2 covers the case in which an international organization circumvents one of its international obligations by authorizing a member State or international organization to commit a certain act. When a member State or organization is authorized to commit an act, it is apparently free not to avail itself of the authorization received. However, this may be only in theory, because an authorization often implies the conferral by an organization of certain functions to the member or members concerned so that they would exercise these functions instead of the organization. Moreover, by authorizing an act, the organization generally expects the authorization to be acted upon.” DARIO, supra note 2, at 107” [emphasis added]. It can hardly be denied that the global trade (and investment) regime established by the WTO (and the General Agreement on Tariffs and Trade (GATT), and which has been evolving, produced an environment which influences Member States (and non-Member States) in the design of their relevant policies and practices. This influence has been criticized for its detrimental impact, for instance, on states with small economies, developing countries, and the public good as related to environmentally sustainable economic growth. See, for instance, Aaron Cosbey, A Sustainable Development Roadmap for the WTO, International Institute for Sustainable Development Publications Centre 36 (2009), available at: http://www.iisd.org/publications/pub.aspx?id=1196 (last accessed: 24 April 2012).Google Scholar

⁷² DARIO, Commentary 9, supra note 2, at 107.Google Scholar

⁷³ DARIO, Article 43, id. Google Scholar

** (a) Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; andGoogle Scholar

** (b) Performance of the obligation of reparation in accordance with Part Three, in the interest of the injured State or international organization or of the beneficiaries of the obligation breached.Google Scholar

⁷⁵ Yearbook ILC 2003, supra, note 15, at 4.Google Scholar

⁷⁶ DARIO, supra note 2, at 19.Google Scholar

⁷⁷ We defer the subject of the judicial forum and instance for claims against the WTO to another time.Google Scholar

⁷⁸ Cf. Article 2 of the DARIO on the “Use of Terms,” which defines an IO as follows: “(a) ‘International organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.” See DARIO, supra note 2, at 2. Article 2 Commentary 3 explains that the membership of a growing number of international organizations includes also “entities other than States as well as States,” see DARIO, supra note 2, at 72. One example is the World Tourism Organization, which includes States as “full members,” “territories or groups of territories” as “associate members” and “international bodies, both intergovernmental and non-governmental” as “affiliate members.” Cf. Commentary 14 to Article 2, at 75.Google Scholar

⁷⁹ Cf. Article 64, DARIO regarding lex specialis, supra note 2, and the discussion above.Google Scholar

⁸⁰ Cf. Article 43, DARIO, id.Google Scholar

⁸¹ One of the authors has explored this issue further in Cedric Ryngaert, Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: an Inquiry into the Application of the ‘Effective Control’ Standard after Behrami, 45 Israel L. Rev. 151–178 (2012).Google Scholar

⁸² Since there is no standing UN army, as Member States never concluded the necessary agreements under Article 43 of the UN Charter, it is a necessity that for every military operation conducted under UN auspices, UN Member States contribute troops (which qualify as State organs under Article 4 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts to the UN, which subsequently integrates them within its own subsidiary organs.Google Scholar

⁸³ As Sari and Dannenbaum point out, in practice, the UN does only very rarely have full command or operational control over national contingents. These contingents retain, as State organs, a strong relationship with the State, which continues to exercise command (through the National Force Commander) and control. Aurel Sari, Jurisdiction and Responsibility in Peace Support Operations, 8 HRLR 151, 159-60 (2008); Tom Dannenbaum, Translating the Standard of Effective Control Into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. ILJ 113, 142–151 (2010).Google Scholar

⁸⁴ On the preventative rationale, see also Larsen, Kjetil Mujezinovic, Attribution of Conduct in Peace Operations: the “Ultimate Authority and Control” Test, 19 EJIL 509, 520 (2008) (noting, regarding the Behrami case (Behrami and Behrami v. France (Appl. No. 71412/01)) before the European Court of Human Rights (ECHR) that the NATOled Kosovo Force (KFOR), and not the UN, exercised operational command and control, and that “[w]hen a human rights infringement occurs through KFOR actions, the Member States of NATO are undoubtedly in a position to prevent the violation or to respond to it, either through national orders - where the State has retained this authority - or through their involvement in NATO itself”). It is noted that Behrami raises the specific issue of UN and NATO Member States initially placing troops at the disposal of NATO, a force that was subsequently placed in UN's charge. The question then is to examine whether it was the UN, NATO, or the Member States who exercised control over the troops and their actions. In fact, the text of Article 6 DARIO itself contemplates the situation of placing at the care of one IO organs or agents of another IO. Google Scholar

⁸⁵ It is a well-established principle that States which exercise control over a territory, e.g., as an occupying power, are responsible for violations of international law committed by their military there. Cf. Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116 (December 19). It is similarly well-established that conduct gives rise to legal responsibility of a State if that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. Cf. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J 14 (June 27) at 65; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91 (February 26).Google Scholar

⁸⁶ Behrami v. France (Appl. No. 71412/01) and Saramati v. France, Germany and Norway (Appl. No. 78166/01), 45 EHRR SE10, para. 135 (emphasis added).Google Scholar

⁸⁷ Id. Google Scholar

⁸⁸ Sari, supra note 84 at 164; Marko Milanovic and Tatiana Papic, As Bad as it Gets: the European Court of Human Rights’ Behrami and Saramati Decision and General International Law, 58 International and Comparative Law Quarterly 267, 275, 281 (2009)Google Scholar

⁸⁹ In other words, a sort of a ‘Rules of Engagement’ protocol designed to distinguish UN from Member State responsibility.Google Scholar

⁹⁰ Reparations, supra note 17 at 179.Google Scholar

⁹¹ Chancery Division of the High Court in MacLaine Watson & Co. Ltd. v. International Tin Council, 13 May 1987, 77 ILR 41, 53.Google Scholar

⁹² “The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.” DARIO, supra note 2 at 85.Google Scholar

⁹³ Id.Google Scholar

⁹⁴ Article 62, Commentary 2: “It is […] clear that […] membership does not as such entail for Member States international responsibility when the organization commits an internationally wrongful act.” DARIO, supra note 2, at 162.Google Scholar

⁹⁵ Article 64: “These draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members.”Google Scholar

⁹⁶ Commentary 3 to Article 7 of DARIO, supra note 2 at 85. See the discussion above in the part on the WTO for DARIO's inconclusive conceptualization of the role of lex specialis in matters responsibility of IOs, which confirms this construction of Article 64.Google Scholar

⁹⁷ DARS, supra note 4 at Article 8.Google Scholar

⁹⁸ Banković and others v. Belgium and 16 other Contracting States, (Appl. No. 52207/99), 41 ILM (2002), at 517; Issa and others v. Turkey, (Appl. No. 31821/96), 41 EHRR SE27, at para. 71; Ilaşcu and others v. Moldova and Russia, (Appl. No. 4878/99), 40 EHRR SE46, at para. 392.Google Scholar

⁹⁹ The ILC states that it does not purport to formulate any criticism concerning the Court's criterion of whether “the United Nations Security Council retained ultimate authority and control so that operational command only was delegated.” Commentary 10 to Article 7 of DARIO, supra note 2 at 88. Yet in the same paragraph, it cites approvingly the criticism of the Court's criterion formulated by the doctrine: “One may note that, when applying the criterion of effective control, ‘operational’ control would seem more significant than ‘ultimate’ control, since the latter hardly implies a role in the act in question” (Id.). It also cites (Id. at 89) the fact that the UN Secretary-General distanced himself from the ECHR criterion when stating in his 2008 report on Kosovo: “It is understood that the international responsibility of the United Nations will be limited in the extent of its effective operational control.” Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2008/354, at para. 16.Google Scholar

¹⁰⁰ Commentary 1 of Article 7, DARIO, supra note 2 at 85 (emphasis added): “This occurs for instance in the case of military contingents that a State places at the disposal of the United Nations for a peacekeeping operation.”Google Scholar

¹⁰¹ Commentary 16 of Article 7, DARIO, supra note 2 at 91.Google Scholar

¹⁰² Article 288, § 3 of the Treaty on the Functioning of the European Union, Official Journal of the European Union, C 83/47 (2010): “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”Google Scholar

¹⁰³ For a fine overview of the command structure of EU military operations, See, for an overview of the chains of command in EU operations, Olof Ekman, Parallel Chains of Command in European Union Operation Headquarters: An Experimental Study of the Drivers behind National Perspectives, forthcoming in the Journal of Contingencies and Crisis Management (2012, distinguishing three levels of EU command: the Military Committee, which is responsible for providing the Political and Security Committee (PSC) with military advice, the Operation Commander (OpCdr) who is responsible for the military strategic level, and the Force Commander (FCdr) who is responsible at the operational level, using the Force Headquarters (FHQ, without however discussing the possibility of national command at the operational level).Google Scholar

¹⁰⁴ Belgian Court of First Instance of Brussels, Mukeshimana and others v Belgian State and others, 8 December 2010, R.G. no. 04/4807/A & 07/15547/A [hereafter Mukeshimana].Google Scholar

¹⁰⁵ Id. at para. 26.Google Scholar

¹⁰⁶ Id. at para. 38 (authors’ own translation of the French text).Google Scholar

¹⁰⁷ Decisions on the blameworthiness of the commanders and the evaluation of the damages to be awarded were reserved for a later date. Id. at para 48 in fine, at para 52.Google Scholar

¹⁰⁸ HN v Netherlands (Ministry of Defence and Ministry of Foreign Affairs), First instance judgment, LJN: BF0181/265615; ILDC 1092 (NL, 10 September 2008).Google Scholar

¹⁰⁹ UK House of Lords, Attorney-General v. Nissan, 11 February 1969, 2 W.L.R. 926. See, for a useful discussion of this case, M. Zwanenburg, Accountability of Peace Support Operations 94–95 (2005).Google Scholar

¹¹⁰ DARS, supra note 4, at ch. V, arts. 20–27.Google Scholar

¹¹¹ DARIO, supra note 2, at ch. V.Google Scholar

¹¹² Cf. DARS, supra note 4, at art. 59.Google Scholar

¹¹³ It is noted, however, that Article 67 Commentary 2 attempts to hedge this prevailing effect somewhat: “It is at any event not necessary, for the purpose of the current draft, to determine the extent to which the international responsibility of an international organization is affected, directly or indirectly, by the Charter of the United Nations.” Article 67, DARIO, supra note 2, at 170.Google Scholar

¹¹⁴ Id. at 170.Google Scholar

¹¹⁵ See on the fragmentation of international law as a result of the existence of various régimes in international law: International Law Commission, Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Yearbook of the International Law Commission, vol. II, Part Two (2006).Google Scholar

¹¹⁶ Article 67, DARIO, supra note 2; Id. at 170.Google Scholar

¹¹⁷ d'Aspremont, Jean & Frédéric Dopagne, Two Constitutionalisms in Europe: Pursuing an Articulation of the European and International Legal Orders, 68 Zeitschrift fur Ausländisches Offentliches Recht und Völkerrecht (ZAÖRV) 939 (2008); Pauwelyn, supra note 14, at 337–342.Google Scholar

¹¹⁸ Case T-306/01, Ahmed Ali Yusuf & Al Barakaat v. Council & Comm'n, 2005 E.C.R. II-3533; Case T-315/01, Kadi v. Council & Comm'n, 2005 E.C.R. II-3649.Google Scholar

¹¹⁹ Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat International Foundation v. Council & Comm'n, 2008 E.C.R. I-6351, in particular at paras. 285 and 299.Google Scholar

¹²⁰ See d'Aspremont & Dopagne, supra note 119.Google Scholar

¹²¹ The Commentary to Article 67 is concise. Is it sensible to consider Article 67 as representing a lex specialis in relation to any other lO's regime? For the purpose of the international responsibility in international law, does UN law represent lex specialis? With regard to which lex generalis? And what then is the implication with regard to other instances of lex specialis? As is stands, there is no cross-reference between Articles 64 and 67 nor is this issue being raised in their respective commentaries. For an enlightening discussion of the Article 103 as a ‘conflict clause’ see, Pauwelyn, supra note 14, at 337–342.Google Scholar

¹²² Let us leave the debate concerning the difference between the two for another time.Google Scholar

¹²³ Klabbers, Jan, The Paradox of International Institutional Law, 5 Int. Org. L. R. 1, 16 (2008).Google Scholar

¹²⁴ Id. at 22.Google Scholar