Antecedentes

2.6.1 Attribution to the organization

An international organization is an abstract person and rules are necessary to impute the conduct of individuals to it. These rules have not yet been codified. As mentioned in § 2.2 theILChas just started its study of the respons- ibility of international organizations.

In the absence of codification, the principles of attribution to international organizations are determined by customary international law. The identification of customary rules requires state practice, however, and in connection with the responsibility of international organizations state practice is limited. Ques- tions of the responsibility of international organizations are often resolved without explicit reference to legal grounds.74_{The body of international case}

law on the topic is also very limited. The International Court of Justice has addressed the attribution of conduct to an international organization in one case, and that was in anobiter dictum. In its advisory opinion on theDifference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rightsthe Court stated that:

the question of immunity from legal process is distinct from the issue of compensa- tion for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity.

The United Nations may be required to bear responsibility for the damage arising from such acts.75

In the absence of any considerable practice in respect of the responsibility of international organizations it is generally recognized in doctrine that the principles of the law of state responsibility apply by analogy to international organizations.76

This is logical in view of the connection between legal personality and international responsibility. The legal personality of states and international organizations, in the sense of the capacity to possess rights and obligations under international law, is the same. Only the scope of the legal personality, the actual rights and obligations that the legal person possesses, is different because of the functional character of international organizations. One of the main functions of the institution of international responsibility is the defense of the legal order against breaches by a subject of that legal order. This legal order is affected in the same way by the breach of an obligation by an inter-

74 P. Reuter, Sur Quelques Limites du Droit des Organisations Internationales, in E. Diez, J. Monnier, J. Müller, H. Reimann and L. Wildhaber (Eds.), Festschrift für Rudolf Bindschedler, Botschafter, Professor Dr. Iur. Zum 65. Geburtstag 8. Juli 1980, 491 (1980), at 497. 75 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commis-

sion on Human Rights, 1999 ICJ Reports 62, para. 66.

76 Seee.g.P. Klein, La Responsabilité des Organisations Internationales dans les Ordres Juridiques Internes et en Droit des Gens 376 (1998); I. Scobbie,International Responsibility, in R.J. Dupuy (Ed.), Manuel sur les Organisations Internationales 886 (1998), at 887; Jimenez de Aréchaga,International Responsibility, in M. Sørensen (Ed.), Manual of Public International Law 532 (1968), at 595, M. Perez Gonzalez,Les Organisations Internationales et le Droit de la Responsabilité, 92 Revue Générale de Droit International Public 63 (1988), at 81, M. Hirsch, The Responsibility of International Organizations Toward Third Parties: Some Basic Prin- ciples (1995).

national organization as by a breach by a state. This is summed up well by one author:

The steadily growing participation of international organizations in international relations calls for a closer scrutiny of the question of legality of the acts of inter- national organizations, understood as the proper fulfillment of their statutory functions with due respect to the rights of other subjects of international intercourse. The institution which serves to evaluate, under universal international law, the actions of a given subject and the possible consequences of a violation of an obliga- tion is international responsibility, whose source constitutes the internationally wrongful act. The fundamental role of international responsibility ensuring the proper functioning of the international legal order can be played effectively only when the rules governing responsibility in that order apply to all subjects.77 International organizations could develop separate principles applying to their responsibility and different from the principles of state responsibility. The development of such a separate regime has taken place in respect of the privileges and immunities of international organizations, for instance. The practice of international organizations does not demonstrate that a separate regime has developed in respect of international responsibility.78_{This circum-}

stance is in itself an argument for applying the principles of state responsibility. It is necessary that there are principles applicable to the responsibility of international organizations.79_{Without the application of the principles of state}

responsibility a legal vacuum would open up, because there no other respons- ibility regime has been developed.

The legal basis for this application is the customary international law status of the core of the legal regime of state responsibility. Customary international law applies in principle to international organizations.80_{When an international}

organization arrives on the international scene it is bound by the general international law that is applicable on that scene. It is in a similar position as a newly independent state, which is in principle bound by customary international law. In the case of the latter however it has been argued that it should be able to choose whether to be bound by a customary international rule because it has not been able to object to that rule during the period it was created. This argument is not applicable to international organizations, because

77 E. Butkiewicz,The Premisses of International Responsibility of Inter-Governmental Organizations, 11 Polish Yearbook of International Law 117 (1981-82).

78 C. Pitschas, Die Völkerrechtliche Verantwortlichkeit der Europäischen Gemeinschaft und ihrer Mitgliedstaaten: Zugleich ein beitrag zu den völkerrechtlichen Kompetenzen der Europäischen Gemeinschaft 43 (2001).

79 P. Reuter,supranote 74, at 491.

these are established by states that have been able to object and that would otherwise be able to indirectly free themselves from the rule.81

Taking the principles of attribution in state responsibility as a starting point is attractive because the principles of state responsibility offer a relatively developed system.82_{The creation of a new legal system would in many ways}

duplicate work that has already been done. In a pre-study for theILC, Pellet also recommends taking the law of state responsibility as a point of departure for theILCproject on the responsibility of international organizations. Pellet states that:

The Commission’s draft articles on State responsibility are thus a legitimate starting point for the discussion, which will also have to deal with the adaptations that those draft articles will require.83

It must be noted that not all the customary rules of state responsibility can be applied to international organizations. The differences between states and international organizations require that where necessary the rules must be adapted. In other words, they must be appliedmutatis mutandis.84 _{For ex-}

ample, draft article 44 refers to the so-called ‘local remedies rule’. The applica- tion of this rule is premised on the existence of national judges, which is not a common characteristic of international organizations.

Other paragraphs in this chapter examine the application of the principles of international responsibility to theUNandNATOin practice.85

2.6.2 Grounds for attribution to member states of conduct of the organization Some writers state that the responsibility of an international organization for conduct of the organization does not exclude the responsibility of member states for that same conduct. A common concern for the writers in question is that states cannot absolve themselves of their responsibility by establishing or joining an international organization. The treaty establishing an international organization does not bind third parties and consequently it cannot as such limit the responsibility of member states towards third parties, they argue.

81 C. Pitschas,supranote 78, at 44.

82 Commissie van Advies inzake Volkenrechtelijke Vraagstukken, Aansprakelijkheid voor Onrechtmatige Daden tijdens VN Vredesoperaties, Advies No. 13, 14 February 2002, at 22.

83 Report of the International Law Commission on the work of its fifty-second session, 1 May – 9 June and 10 July – 18 August (A/55/10), annex, syllabi on topics recommended for inclusion in the long-term programme of work of the Commission, 299, at 301. 84 M. Perez Gonzalez,supranote 6, at 67.

For some of these writers member state responsibility takes the form of responsibility for conduct of the organization that breaches an international obligation of the member state. Lawson states that if the conduct of an inter- national organization is aprima faciebreach of obligations of the member states, the conduct must be attributed to the member states so that it can be estab- lished whether there has been an actual breach. If the conduct breaches an obligation that binds the member states as well as the international organiza- tion, the conduct must be attributed to the organization. In this situation the member states may be co-responsible for the internationally wrongful act of the organization, based on the constituent document, the obligation breached or legitimate expectations of third parties.86

For other writers member state responsibility takes the form of responsibil- ity for conduct of the organization that breaches an international obligation of the organization.87 _{In other words, not only the conduct, but the entire}

internationally wrongful act of the international organization, is attributed to the member states. These writers disagree on the principles to determine whether member states are responsible in a specific situation for the inter- nationally wrongful act of the organization. Herdegen for example suggests principles on elements of attribution and responsibility that will directly serve as a basis for the liability of the member states only if the primary obligation incurred by the international organization itself flows from international law. The principles he suggests are “based on the founding act as well as on the remaining influence and control of the founders – without entailing a strictly accessory and full liability of all members for obligations incurred by the organization.”88 _{Pescatore states that the member states of the European}

Communities are subsidiarily responsible for the conduct of the Communities because of their influence on the Communities and because the member states can modify the treaties establishing the Communities.89

86 R. Lawson, Het EVRM en de Europese Gemeenschappen: Bouwstenen voor een Aansprake- lijkheidsregime van Internationale Organisaties 281-283 (1999).

87 Seee.g.W. Meng,Internationale Organisationen im völkerrechtlichen Deliktsrecht, 45 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 324 (1985); R. Sadurska & C. Chinkin, The Collapse of the International Tin Council: A Case of State Responsibility?30 Virginia Journal of International Law 845 (1989); H. Schermers,Liability of International Organizations,1 Leiden Journal of International Organizations 3 (1988), I. Seidl-Hohenveldern,Piercing the Corporate Veil of International Organizations: The International Tin Council Case in the English Court of Appeals, 32 German Yearbook of International Law 43 (1980). Note that the latter author has adjusted his point of view to defend a much more limited theory of member state responsibility, I. Seidl-Hohenveldern,Liability of Member States for Acts or Ommissions of an International Organization, in S. Schlemmer-Schulte & K-Y. Tung (Eds.), Liber Amicorum Ibrahim F.I. Shihata: International Finance and Development Law 727 (2001).

88 M. Herdegen,The Insolvency of International Organizations and the Legal Position of Creditors: Some Observations in the Light of the International Tin Council Crisis, 35 Netherlands Inter- national Law Review 135 (1988).

89 P. Pescatore,Les Relations Extérieures des Communautés Européennes, 103 Recueil des Cours (1966-II), at 224.

The common concern of most of these writers is that unsuspecting third parties should not be victimized by states that transfer their activities to international organizations. Consequently, these writers state that member states are not responsible if third parties have been put on notice that the member states have limited their responsibility for the conduct of the organiza- tion. Most of them agree that this is the case if there is an express clause in the constituent instrument of the organization limiting member states’ respons- ibility. They disagree, however, on whether it is possible for member states to limit their responsibility for conduct of the organization without an express clause to that effect.

Judicial decisions concerning member state responsibility were made in cases concerning the International Tin Council and in cases concerning the Arab Organization for Industrialization (theWestlandcase).

2.6.3 TheWestlandcase

TheWestlandcase originated in the winding up of the Arab Organization for Industrialization.90_{The organization was established in 1975 by the United}

Arab Emirates, Saudi Arabia, Qatar and the Arab Republic of Egypt with the object of developing an arms industry for the benefit of the four states. The constituent instrument set up a higher committee composed of ministers delegated by the four states. In 1978 the organization concluded an agreement with Westland helicopters called the ‘Shareholders’ Agreement’ to create a joint stock company named the Arab British Helicopter company. After the Arab Republic of Egypt recognized Israel in 1979, the other three member states of the organization announced that they were putting an end to the existence of the organization and set up a liquidation committee. Westland then filed a request for arbitration claiming damages against the organization, the four member states and the Arab British Helicopter company.

Egypt expressed reservations about the jurisdiction of the arbitral tribunal over the four states because the arbitration was based on an arbitration clause in the shareholders agreement to which the four states were not parties. The Tribunal decided to restrict the initial proceedings to the question of juris- diction. It held that the question whether the four states were bound by the arbitration clause was exactly the same as the substantive law question whether the four states were bound in general by the obligation contracted by the organization.

90 International Chamber of Commerce, Court of Arbitration, 5 March 1984, Westland Heli- copters Ltd. and Arab Industrialization Organization, United Arab Emirates, Kindom of Saudi Arabia, State of Quatar, Arab Republic of Egypt and Arab British Helicopters Com- pany, 80 ILR 610 (1989).

The Tribunal found that the organization was an international legal person. However, the attribution of legal personality to the organization did not exclude the possible liability of the member states. The Tribunal based this conclusion on general principles of law and on good faith. It explained that the notion that excludes cumulative liability of a legal person and of the individuals which constitute it is nowhere accepted or given effect without limitation and gave several examples from domestic company law in Switzer- land, Germanic law and France. The Tribunal stated that:

These observations show that the designation of an organization as “legal person” and the attribution of an independent existence do not provide any basis for a conclusion as to whether or not those who compose it are bound by obligations undertaken by it. One must therefore disregard any question relating to the per- sonality of theAOI. The possible liability of the four States must be determined by directly examining the founding documents of theAOIin relation to this prob- lem.91

The founding documents of the organization did not stipulate anything on the question of the responsibility of the member states. The Tribunal stated that:

In the absence of any provision expressly or impliedly excluding the liability of the four States, this liability subsists since, as a general rule, those who engage in transactions of an economic nature are deemed liable for the obligations which flow therefrom. In default by the four States of formal exclusion of their liability, third parties which have contracted with theAOIcould legitimately count on their liability. This rule flows from general principles of law and from good faith.92 The Tribunal considered that its foregoing arguments were all the more true because the member states of the Arab Organization for Industrialization effectively controlled the actions of the organization, so that “in reality, in the circumstances of this case, theAOIis one with the States”.93

The Tribunal concluded that the four states were bound by the arbitration clause because the obligations under substantive law cannot be dissociated from those that exist on the procedural level.

2.6.4 TheInternational Tin Councilcases

Other judicial decisions in connection with the question of the responsibility of member states for the debts of an international organization resulted from

91 Id., at 612. 92 Id., at 613. 93 Id., at 614.

the collapse of the International Tin Council in 1985. The International Tin Council was an international organization established to prevent excessive fluctuations in the price of tin and to secure an adequate supply of tin at fair prices to the consumers and remunerative to the producers. The organization was founded by the Sixth International Tin Agreement (ITA6). Twenty-three states and the European Economic Community (EEC) were parties to the agreement. A headquarters agreement between the organization and the United Kingdom gave the organization legal personality under United Kingdom law. The headquarters agreement was implemented in the United Kingdom by an Order in Council that provided that the organization had “the legal capacities of a body corporate”. Neither the International Tin Agreement nor the head- quarters agreement contained an express clause limiting the responsibility of the member states.

When the organization announced that it could not pay its debts, creditors started legal proceedings in United Kingdom courts against the members of the organization to recover the organization’s debts. The creditors claimed, inter alia, that if the organization had legal personality or a degree of legal personality, then this was analogous to that of bodies in the nature of quasi- partnerships well known in civil law systems, where both the entity and the members are liable to creditors, or the members are in any event liable for the debts of the entity. The proceedings were unsuccessful for the creditors. The High Court decided that the International Tin Council was a legal person under domestic law. Under the applicable domestic law its members were not liable to third parties on the basis of their membership. The Court of Appeal and the House of Lords dismissed appeals against the High Court judgments.

Most of the judges decided the claim primarily in accordance with domestic law instead of international law. Some of the judges also discussed whether there is a rule of member states responsibility under international law, but only when they were of the opinion that domestic law did not include suffi- cient rules to adjudicate the case. Judge Staughton in a High Court judgment stated that “it is open to question whether in international law a legal personal- ity necessarily excludes direct liability of the members of association to its