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Untangling the legal responsibility of international organizations under international law: an x-ray of the draft articles on the responsibility of international organizations

The peacekeeping operations by international organizations have changed in recent years and several missions now pursue stabilization mandates.[1] These stabilization missions involves working closely alongside the host government, to promote the rule of law, engage in counter-terrorism activities and use of robust force to counter violence.[2] Such cooperation between an international organization with the host state forces, and other international forces operating in the territory, poses challenges to the responsibility of international organizations particularly where these forces commit wrongful acts in the process. So then, what really follows in an instance where an international organization commits or omits  an international wrongful act? In light of  the Advisory Opinion by the International Court of Justice (ICJ) 1949 on the ‘Reparation for Injuries Suffered in the Service of the United Nations (UN):[3] the UN possess an objective legal personality, separate from that of its members. According to it, an international organization is a subject of international law and has a capacity to maintain its rights by bringing international claims.[4] Legally, what generally ensues when an organization  brings claims for harm suffered to its interests is that it will  also be liable for harm inflicted by it on third parties.[5] Therefore, international organizations as subjects of international law, will incur international responsibility when they commit internationally wrongful acts.[6]

Thus, this paper, in light above, will scrutinize the scope of legal status, responsibility and liability of international organizations under international law subject to the Draft Articles on the Responsibility of International Organizations (DARIO), which still raises a number of difficult questions. For example, what is the level of support needed to implicate an international organization in the wrongful acts committed by other bodies receiving support? In other words, how does international law account for wrongful acts made possible by an international organization’s support in the context of a peacekeeping operation?[7] This paper, therefore, attempts to answer some of these questions with regard to the responsibility of international organizations.

Legal status, responsibility and liability of international organizations

Historically, international society was unorganized, each state acting separately in resolving conflicts with other states. It became increasingly necessary to regulate and set common standards as relations between states increased. This was done mostly through bilateral and later multilateral diplomatic conferences.

The legal status of any organization means the recognition of that organization to be possessing rights and duties enforceable at law. This means that such an organization may persecute or be persecuted for any offence committed and attributable to it. This is possible because the law recognizes them as ‘legal persons’ with the capacity to have and maintain certain rights and being subject to perform certain duties.[8] However, some international scholars are still of the view that only states can be the true subjects of international law.[9]After the death of Count Bernadotte in Palestine in 1947, it led to the recognition of the separate legal responsibility of international organizations and that subjects of international law was not limited to states only.[10] The Draft Articles on the Responsibility of International Organisations are founded on the notion of an existence of a separate international legal personality without which is tantamount to international organizations being juridically indistinguishable from its members and would thus not enjoy the capacity to enter into international agreements in their own rights,  or be able to commit wrongs as a matter of international law.[11] Any agreements entered into by them would be deemed to have been entered into under the capacity of “agents” of the member states and thus attributable to them. Consequently, this is the reason why there was a need to develop a distinct set of rules which will govern international responsibility of international organizations since they enjoy separate legal personality from their member states. Legal personality is now generally considered to be an important aspect of international organizations because they are endowed with a separate legal personality which distinguishes them from other entities.[12] However, in a bold articulation by the ICJ in the Reparation Case, it qualified its holding with the general preservation that “subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community.”[13]

The applicable law governing the actions of states is either the international law or domestic law and for international organizations, there is a third possible set of applicable rules collectively known as the “rules of the organization:” these typically refer to the constituent instrument, as well as any rules developed within the context of the work of the organization. The latter include decisions, resolutions, regulations, internal rules and other instruments adopted by its organs in accordance with its constituent instrument and the established practice of the organization as well as agreements concluded with third parties and judicial or arbitral decisions binding the organization. DARIO provides that the  ‘rules of the organization’ may have an impact on several issues such as: determining the functions of the organs and agents of an organization for the purpose of establishing the attribution of the acts of such organs or agents to the organization itself;[14] establishing the existence of an internationally wrongful act owing to the breach of an international obligation arising from the rules of the organization;[15] and establishing the permissibility of the taking of countermeasures by the organization.[16] It is also well established that the ‘rules of the organization’ may constitute special rules which circumvent the Draft Articles to the extent that they govern in the context of the existence of an internationally wrongful act.[17]

International organizations may currently be held accountable for the impacts of their illegal or wrongful acts which is no longer in doubt as the same is widely accepted. Liability is thus generally presented as the logical corollary of powers and rights conferred upon international organization which is clearly recognized by international organizations themselves.[18] They may also, when they cause aggravating impacts, make the organization liable to compensate for the damages caused. DARIO envisages several scenarios where an international organization may legally be vicariously liable for internationally wrongful acts attributed to it by its organs and/or agents since an organization is a legal body that acts in the physical world through its organs and agents. While attribution is the primary vehicle, DARIO also provides for other ways in which an international organization may incur responsibility.

What are the instances where an international organization may incur responsibility for its wrongful acts?

  • Attribution of conduct to an international organization

Just like the responsibility of states, the rules on the attribution of conduct have been firmly ingrained under DARIO. The pertinent provisions have entirely been borrowed from Draft Articles on State Responsibility since many of the considerations are almost similar.[19] For an international organization to incur responsibility for an act or omission, the conduct in question must not only be internationally wrongful, but also be attributable to it.[20] However, such questions of attribution of conduct can be intricate for a large international organization such as UN whose acts are generally committed by its organs and/or agents e.g The Secretariat, Security Council, General Assembly etc.[21] The conduct of its organs and/or agents in performing their obligations as provided by the rules of the organization is attributable to the organization regardless of the position of the organ and/or agent in the organization.[22] A more plausible example is when an organ and/or agent acts ultra vires (in excess of their authority), then such conduct will nonetheless be attributable to it as if it was taken by the organ or agent acting in such capacity.[23] Granting the organization the right to deny attribution to it for the acts committed by its organs or agents in excess of their authority is tantamount to denying third parties the right of redress. Conversely, acts of an organ or agent not performed in their official capacity are not attributable to the international organization, unless it acknowledges and adopts the conduct in question as its own.[24]

Attribution may also occur in instances where an international organization exercises effective control over an organ of a State or an organ or agent of another international organization which was placed at its disposal.[25] Whereas the conduct of organs and agents which have been (seconded) to an organization is attributable to it (and not the lending State or organization), the position is less clear with regards to entities such as military contingents that are placed at the disposal of an international organization but which continue to be subject to the control of their national states. This is because of the practice developed by the UN of applying the test turning on the actual control exercised over the specific conduct of such conduct in question. “Effective control” is a relative concept to be ascertained on the facts which become evident in the case of joint operations, involving contingents under the exclusive command or control of the UN as well as those under the exclusive command and control of States or other organizations.[26]

(b) Responsibility with regards to an act of a State or other international organization DARIO also recognizes accomplice liability, for example, under certain circumstances, an international organization may incur international responsibility for aiding and assisting a state or another organization in committing an international wrongful act,[27] or for directing and controlling a state or other organization in the commission of the act.[28] The type of aid or assistance captured by Article 14[29] is not defined by the ILC but can include providing material resources such as weapons, as well as financial, logistical and technical support.[30] However, you must note that not all assistance will result in responsibility as the international organization must make a ‘significant’ contribution to the wrongful act.[31] This is because of the de minimis threshold where remote or minimal assistance will not be sufficient for responsibility. The challenging question with regard to Article 14 is that of the knowledge and intent required.[32] The ILC has been of the view that if the assisting or aiding organization is unaware of the circumstances in which its aid or assistance is intended for by the State it then bears no international responsibility.[33] It further notes that the organization must have intended that the aid or assistance given, it will facilitate the occurrence of wrongful conduct but however, no guidance is given on how knowledge and intent are to be adduced or the significance of the assistance to be judged.[34] The international organization therefore, in order to meet the requirements of Article 14 needs to be actually or virtually certain that the organ receiving assistance is committing or intends to commit an internationally wrongful act. The organization does not need to share the full intent of the organ committing the wrongful act but must have sufficient foresight and certainty. The mere possibility that the wrongful act is taking place and that assistance is facilitating the act would not be sufficient.

 Likewise, an international organization may be held responsible for coercing a State or other international organization to commit an internationally wrongful act.[35]

An international organization, being a distinct body from its members, is theoretically possible to influence its members so as to achieve through them an action that the organization could not lawfully have achieved directly, and thus circumvent one of its international obligations.[36] This would make an international organization incur responsibility as a result of the adoption of a decision binding or authorizing its members to commit an act in violation of its international obligations.[37]  In addition, international organizations can also be members of other international organizations and thus be capable of incurring international responsibility in the capacity of members of the particular organization.[38]

Note: Responsibility of State members of an international organization for the acts of an organization

A state member may incur international responsibility by seeking the organization to commit an act which if committed by the State would have constituted a breach of the obligation.[39]

Conclusion

The conduct by organs/agents linked to international organizations with regards to their mandated tasks present a surfeit of risks for that organization such as ancillary responsibility. However, clarity is needed on where an international organization’s support for States and other actors will result into ancillary responsibility pursuant to Article 14.  Only then can international organizations adopt safeguards into their activities to stifle unresolvable questions on international responsibility where violations of human rights and humanitarian law by organs/agents linked to them persist.


[1] Alexander Gilder, Finding UN Responsibility for its Stabilization Activities, Blog of the European Journal of International Law, 2023.

[2] Ibid.

[3] Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Rep. 1949, p.174.

[4] Ibid.

[5] Elizabeth Wilmshurt, Michael Wood and Maria Vicien, “Legal Responsibility of International Organizations in International Law,” Summary of the International Law Discussion Group meeting held at Chatham House on Thursday, 10 February, 2011.

[6] Arnold Pronto, “Responsibility of International Organisations” Chapter 14.

[7] See Alexander Gilder, n. 3.

[8] See Pascal Oguno, n. 2.

[9] Lauterpacht, International Law, p. 489.

[10] See note 1.

[11] See Arnold Pronto, n. 5.

[12] Reinisch, International Organizations before National Course, 2000.

[13] See note 1.

[14] DARIO Article 6(2).

[15] Ibid Article 10(2).

[16] Ibid Articles: 22(2)(b) and (3) and; 51(1)(b) and (2).

[17] See Arnold Pronto n. 5.

[18] Saud’s and Klein, Bowelts, Law of International Organizations, 6th Edn. p. 519.

[19] DARIO Article 4(a).

[20] Ibid.

[21] DARIO Article 2(d).

[22] Ibid Article 6.

[23] Ibid Article 8.

[24] DARIO Article 9.

[25] Ibid Article 7.

[26] Yearbook of the International Law Commission (2011) Vol II, part 2 at 58, para 9 of the commentary to Article 7.

[27] See n.18, Article 14.

[28] Ibid Article 15.

[29] DARIO.

[30] See Alexander Gilder n.3.

[31] Ibid.

[32] Ibid.

[33] This is ILC’s commentary on Article 16 of ARSIWA which can also logically be applied to Article 14 of DARIO.

[34] See n.32.

[35] Ibid Article 16.

[36] See Yearbook of the ILC n.20.

[37] DARIO Article 17.

[38] Ibid Article 18.

[39] Ibid Arricle 61(1).