2018年-查塔姆研究所_Legal_Responsibility_of_International_Organisations_in_International_Law_10页_362kb

Summary of the Legal Responsibility of International Organisations in International Law

Core Content

This document summarizes a discussion held by the International Law Discussion Group at Chatham House on 10 February 2011, focusing on the legal responsibility of international organisations under international law. The meeting aimed to explore the implications of the International Law Commission (ILC) Draft Articles on the Responsibility of International Organisations, particularly in light of the UN's legal personality and its potential liability for actions taken by its organs or agents.

Main Views and Key Points

Legal Personality and Liability

• The UN is recognized as having an objective legal personality, separate from its member states.
• This implies that the UN can be held legally responsible for actions by its organs or agents, similar to states.
• However, the scope and practical application of this principle remain unclear, especially in new areas like cultural, educational, and scientific projects.

Scope of the Draft Articles

• The Draft Articles are limited to legal responsibility, not governance or accountability.
• They do not address criminal responsibility of individuals or immunities under national law.
• The ILC has been working on this topic since 2002, and in 2009 adopted 66 draft articles with commentaries, though the commentaries are often sparse.

General Concerns

• The Draft Articles are not yet customary international law, and have been misused by courts in cases like Behrami and Al-Jedda.
• Four main issues were identified:
  1. Failure to distinguish between states and international organisations.
  2. Assumption that all international organisations are subject to the same legal regime.
  3. Lack of consistent international practice.
  4. Uncertainty regarding the primary rules of international law.

Specific Problems in the Draft Articles

• Article 2 defines "agent" broadly, which may mislead courts into considering independent contractors as agents of UNESCO.
• Article 6 deals with effective control over organs or agents. The ECtHR interpreted this as ultimate control, which has been criticized.
• Article 13 raises concerns about international responsibility for aiding or assisting in wrongful acts, such as the construction of a dam leading to human rights violations.
• Article 16 allows international organisations to be responsible for authorizing or recommending actions, which is unrealistic.
• Article 21 introduces countermeasures, but this may be inappropriate for international organisations due to their limited mandate and purpose of cooperation.

Recommendations and Conclusion

• The Draft Articles require major revisions before final adoption.
• A clearer recognition of the differences between international organisations is needed.
• It should be explicitly stated that the Draft Articles are guidelines, not reflective of customary law.
• The ILC should avoid pressure to finalize the second reading in 2011, and revisit the text if necessary.
• Immunities and compensation mechanisms are critical to the discussion, especially in the context of war crimes and sexual offences.
• There is a lack of established compensation funds within international organisations, and states may also be held responsible for wrongful acts, such as the Rwanda genocide.

Summary by Monika Hlavkova

The discussion highlighted the complexity and ambiguity of assigning legal responsibility to international organisations. While the UN is recognized as a subject of international law, the Draft Articles face significant criticism due to their overgeneralization and lack of clear legal foundations. The need for clarity, differentiation, and practical application was emphasized, with a call for urgent feedback from all stakeholders to ensure the final version reflects the unique nature of international organisations.