UN Peacekeeping Operations and Article 7 ARIO: The Missing Link

2012 ◽  
Vol 9 (1) ◽  
pp. 77-85 ◽  
Author(s):  
Aurel Sari
Keyword(s):  
International Law ◽  
International Organizations ◽  
Present Note ◽  
International Organization ◽  
Best Interests ◽  
Effective Control ◽  
Peacekeeping Operations ◽  
Un Peacekeeping ◽  
Institutional Status ◽  
International Responsibility

Peacekeeping operations conducted by international organizations raise difficult questions of international responsibility. In principle, breaches of international law committed by national contingents serving on such operations may be attributed either to the international organization leading the operation or to the State to which the personnel implicated in the wrongful conduct belongs. The ARIO suggests a seemingly simple solution to this dilemma: wrongful conduct should be attributed to the party exercising effective control over that conduct. The present note argues that this solution is misguided. It deliberately ignores the legal and institutional status of national contingents, does not reflect consistent international practice and may not serve the best interests of potential claimants. In the case of peacekeeping operations incorporated into the institutional structure of an international organization, a more appropriate solution to the dilemma of multiple attribution is to proceed on the basis of a rebuttable presumption that the wrongful acts committed by national contingents are attributable to the international organization and not to their contributing State.

International Responsibility

2021 ◽  
pp. 176-207
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
International Law Commission ◽  
Final Consequence ◽  
Law Commission

The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.

Responsibility of the WTO for Breach of an International Obligation under the Draft Articles on Responsibility of International Organizations

2013 ◽  
Vol 50 ◽  
pp. 197-242
Author(s):  
Noemi Gal-Or
Keyword(s):  
International Law ◽  
International Organizations ◽  
World Trade ◽  
International Organization ◽  
Legal Personality ◽  
International Obligation ◽  
The World ◽  
History Of ◽  
International Responsibility ◽  
International Legal Personality

SummaryThis article challenges the argument that the World Trade Organization (WTO) is devoid of executive or governing functions and, hence, immune from the regime set out in the International Law Commission’s 2011 Draft Articles on the Responsibility of International Organizations (RIO). A brief drafting history of the RIO, clarification of the terminology associated with matters of international responsibility, and two hypothetical examples illustrating the potential for WTO responsibility set the stage for the article’s main argument. The author examines the WTO’s nature by analyzing its constituent law, its sui generis mandate and functions, its international legal personality, and its own use of terminology in presenting itself to the world. Critical analysis of RIO Articles 64 (on lex specialis) and 10 (on the existence of a breach of an international obligation), and their application to the WTO, completes the argument. The author thus refutes both the notions that (1) the WTO is exclusively member driven and, hence, not an executive, governing organization but a sui generis entity and (2) the WTO is therefore unable to breach an international obligation and thus immune from the RIO regime. The article concludes that, while a breach by the WTO of an international obligation may be exceedingly rare, it nonetheless — as any international organization — comes within the ambit of the RIO regime. The WTO should therefore consider adjusting its internal rules accordingly.

The Allocation of International Responsibility between International Organizations and Their Member States: A Case of Indirect Responsibility?

2020 ◽  
Vol 31 (2) ◽  
pp. 755-770
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Review Essay ◽  
International Organization ◽  
Extensive Discussion ◽  
Member States ◽  
International Responsibility ◽  
Insightful Analysis ◽  
International Law Commission ◽  
Law Commission

Abstract While the responsibility of international organizations and their member states has been on the agenda of courts and scholars for decades, the adoption of the Articles on the Responsibility of International Organizations (ARIO) by the International Law Commission in 2011 has given new impetus to the debate. Nikolaos Voulgaris’ Allocating International Responsibility between Member States and International Organizations is one of the few general books on the topic that post-dates the adoption of the ARIO. Despite its broad title, however, the focus of the book is rather narrow: it concentrates on the responsibility of an international organization or a state in connection with the act of a/another state or international organization, which Voulgaris describes as ‘indirect responsibility’. Considering the book’s extensive discussion of the function and nature of international responsibility, this review essay first submits that the book’s actual aim is a rethinking of indirect responsibility. Second, it examines Voulgaris’ reconceptualization of the pertinent provisions on indirect responsibility in terms of what he calls the ‘complicity’ and ‘derivative responsibility’ models. This review essay concludes that the reader who expects detailed guidance on the allocation of responsibility between international organizations and their member states will be left wanting. Instead, the interaction between international organizations and their member states serves as an illustration for the book’s insightful analysis of the under-theorized provisions on international responsibility in connection with the act of another.

Conclusion

2021 ◽  
pp. 208-210
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
International Organization ◽  
Legal Systems ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law

This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.

Effective control test at the interface between the law of international responsibility and the law of international organizations: Managing concerns over the attribution of UN peacekeepers’ conduct to troop-contributing nations

2019 ◽  
Vol 32 (2) ◽  
pp. 275-291 ◽  
Author(s):  
Yohei Okada
Keyword(s):  
The Netherlands ◽  
International Organizations ◽  
Legal Framework ◽  
Effective Control ◽  
Control Test ◽  
Preventive Approach ◽  
Un Peacekeeping ◽  
International Responsibility ◽  
The Law ◽  
Court Of Appeal

AbstractOn 27 June 2017, in the Stichting Mothers of Srebrenica case, The Hague Court of Appeal applied the effective control test in determining attribution and found that the Netherlands was responsible for the failure of the Dutch battalion (Dutchbat) acting as a part of the UN Protection Force (UNPROFOR) to protect civilians from the Srebrenica massacre in 1995. This judgment is of considerable significance because the court renounced the preventive approach to the effective control test, to which the Dutch courts had repeatedly declared their adherence, and reverted to the traditional (presumptive) approach. The preventive interpretation was originally proposed with a view to justifying much broader attribution to troop-contributing nations (TCNs). However, quite interestingly, the Court of Appeal reached the conclusion that the Dutchbat’s conduct was attributable to the Netherlands without recourse to the preventive approach. The present study argues that the legal framework for the attribution of UN peacekeepers’ conduct has developed in such a manner that the fair allocation of responsibility and the effectiveness of UN peacekeeping operations are in equilibrium. In that sense, the effective control test should be located at the interface between the law of international responsibility and the law of international organizations. It is illustrated that not only does the preventive interpretation fail to strike a fair balance between the institutional considerations and the need to provide remedies for victims of peacekeepers’ misconduct, but also the presumptive approach may lead to effective remedies while having due regard for the institutional considerations.

The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations An Appraisal of the ‘Copy-Paste Approach’

2012 ◽  
Vol 9 (1) ◽  
pp. 53-66 ◽  
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Reasoning ◽  
International Organization ◽  
Considerable Uncertainty ◽  
Legal Rules ◽  
International Responsibility ◽  
International Law Commission ◽  
Law Commission

In view of the adoption and future reception of the Articles on the Responsibility of International Organizations (ARIO) on second reading, this contribution seeks to offer some reflections on the ‘copy-paste narrative’ that has characterized the process of drafting the ARIO by the International Law Commission (ILC). On the basis of a brief introduction to the concept of analogies in international law, it is explained that the use of analogies is not to be equated with a mechanical exercise of copy-pasting legal rules; rather, it constitutes a method of legal reasoning based on a principled assessment of relevant similarities and differences. By comparing the ARIO with the ILC’s Articles on State Responsibility (ASR), it will be demonstrated that the ARIO actually do not follow the example of the ASR in many key provisions. Interestingly, much of the critique of the ARIO has been directed against these dissimilar provisions, especially when they concern the relations between an international organization and its member States. Since this critique is mainly driven by considerable uncertainty as to the determination of the responsible actor(s), it will be suggested that the ILC should have used closer analogies with the ASR in order to enhance the overall coherence of the law of international responsibility. This is because, as argued in conclusion, the corporate complexity of international organizations and States may necessitate a unified set of Articles on International Responsibility.

Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility

2013 ◽  
Vol 26 (3) ◽  
pp. 615-642 ◽  
Author(s):  
SIMON OLLESON
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Customary International Law ◽  
Domestic Courts ◽  
International Responsibility ◽  
International Law Commission ◽  
Further Development ◽  
Law Commission ◽  
Point Of Reference

AbstractThe rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.

The Concept of an International Organization in International Law

2021 ◽  
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
International Organization ◽  
Legal Systems ◽  
Legal Concept ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
Comprehensive Study

Despite their exponential growth in number and activities, international law lacks a comprehensive legal concept of an international organization. The book tackles this topic from the perspective of the legal nature of the legal systems developed by international organizations. It is the first comprehensive study of the different concepts under which international organizations’ legal systems are commonly understood: functionalism, constitutionalism, exceptionalism, informalism. It has a threefold purpose: to trace the historical origins of the different concepts of an international organization, to describe four families under which these different notions are subsumed, and to propose a theory which defines international organizations as ‘dual entities’. The concept of an international organization is defined looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities. The effects of the dual legal nature are discussed, analysing international responsibility, the law of treaties, and the validity of organizations’ acts.

scholarly journals The Rules of International Organizations and the Law of International Responsibility

2011 ◽  
Vol 8 (2) ◽  
pp. 397-482 ◽  
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Central Place ◽  
International Organization ◽  
Clear Cut ◽  
International Obligation ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
The Moment

AbstractThis paper discusses the role of the so-called 'rules of the organization' in the draft Articles on the Responsibility of International Organizations (ARIO), as adopted by the International Law Commission (ILC) on second reading in 2011. Although the rules of the organization occupy a central place in the ARIO, the ILC has decided not to take a “clear-cut view” on their legal nature as either international law or internal law of the organization. This paper argues that the ILC's indecision has left the ARIO with a fluctuating scope of application concerning various provisions such as the attribution of conduct, the breach of an international obligation, the obligation to make reparation, and countermeasures against an international organization. The term of art 'rules of the organization' was developed by the ILC in its work on the law of treaties but has rarely been addressed in legal scholarship. Part 1 therefore first examines the legal nature of the different components of the so-called 'rules of the organization': the constituent instruments, the acts, and the established practice of the organization. While the constituent instruments are contracts between States at the moment of the creation of an international organization, it will be contended that they also operate as constitutions during the life of the organization, giving it the autonomy to create internal law in force between the subjects of its legal order, including its member States. In analysing the ARIO on second reading, Part 2 accordingly suggests reconceiving the rules of the organization as 'internal law' of the organization as long as it functions effectively, so as to appropriately reflect its constitutional autonomy for purposes of international responsibility.

scholarly journals Designing for international law: The architecture of international organizations 1922–1952

2020 ◽  
pp. 1-22
Author(s):  
Miriam Bak McKenna
Keyword(s):  
New York ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Labour Organization ◽  
The Relationship ◽  
Physical Manifestation ◽  
Insight Into ◽  
Do So

Abstract Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavours unfolded in three main stages: the years 1922–1926, during which the International Labour Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

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