Who is Liable? Attribution of Conduct to a Member State in an International Organization
Ilustrasi Diplomatic Review #4. Foto: FPCI UI.
Introduction
Over the course of the last century, international organizations have developed from humble facilitators of intergovernmental cooperation into powerful actors in their own right. The emergence of the international organization as an autonomous body has raised the question; can a member state of an international organization (IO) be held liable for the wrongful acts of said IO, and if so, under what circumstances? This question is important to answer given that sometimes states will resort to the organizations they constitute as a means to avoid responsibility for what, in truth, are their own initiatives.1 While it is a general principle of international law that when a violation of international law occurs, an obligation to make some form of reparation, follows,2 the issue of international organizations’ (IOs) responsibility for internationally wrongful acts has never been addressed. The UN General Assembly recommended that the ILC begin work on the topic of the responsibility of IOs since there is an increasing number, mandates, scope, and influence of such IOs.3 This would result in a need for more legal clarity and deliberations for IOs, considering that the recent emergence of many new IOs would provide more opportunities for states to shield their action by hiding behind the organizational veil of the organizations.
Realizing this topic as an important aspect of international law’s application in foreign policy, The article will first touch on the separate legal personality of IOs and how it impacts on the issue of attribution of acts. The next part of the article will inquire whether a member state can be attributable to a certain wrongful conduct of IO by virtue of membership alone, and continued by a case analysis through the lense of European Court of Human Rights’ admissibility decision in the Behrami/Saramati case, and concluded by a conclusion on the matter.
International Legal Personality of International Organizations
To determine if a conduct is attributable to an IO, it is important to recognize the existence of legal personality of said IO. By stating that IOs have a legal personality means that they have a legal personality distinct from their member states’, and therefore ‘legally, they are more than the sum of their (state) parts’.4 As a result, the organization itself, rather than its member states, is responsible for its acts. It can also be concluded that when member states perform acts as part of an IO, such as voting for a project in the UN, such acts will be considered as acts of the organization for which the organization is responsible rather than collective acts of states. In 1949, the International Court of Justice (ICJ) confirmed the legal personality in the case of Reparation for Injuries Suffered in the Service of the United Nations.5 In this case, the ICJ stated that ‘the Organization [of the United Nations] is an international person’, which means ‘that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims’.6 Thus, by having a legal personality, an IO can be held responsible for an injury it caused for a state. However, so far, only the UN has been found by the Court to have an objective legal personality.
There are differing views on how to determine when an IO starts enjoying a separate international legal personality. Some hold that the existence of the organization itself is enough to afford it a legal personality, while others maintain that there are several elements to be satisfied by an IO in order for it to obtain a legal personality; such as having a treaty‐making capacity, the right to send and receive legations, and the right to bring and receive claims.7 The Court itself has recognized that ‘international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’8 (although it is not clear precisely what types of obligations IOs are under). Hence, for instance, the international financial institutions (IFIs) — like World Bank and International Monetary Fund (IMF) – can readily be considered to possess an international legal personality by their operations at the international level.9 However, this school of thought is not exactly undisputable either. articles of Agreement of the International Bank for Reconstruction and Development (IBRD), which forms part of the World Bank Group and those of the IMF, may convey the existence of legal personality but not necessarily an international one.10 Presuming that IOs possess separate international legal personalities and are thus capable of holding obligations under international law, including human rights law, this article now considers the circumstances in which member states can be held responsible for an organization’s wrongful conduct.
Member State Liability by Virtue of Membership
While the theory of separate legal personality and responsibility of IOs is widely accepted11, there is still a debate on the issue of whether member states can also be held liable in addition to IOs which they become a member to.12One of the main concerns in imposing such liability to a state is that it might ‘interfere with the operation of international organizations, depriving them of their independence and impartiality’.13 This is because member states, if they are faced with the risk of potential liability for the acts of an organization, would be more likely to intervene with the decision-making process of an IO. The interference would reduce the independence of the IO, and when independence is substantially diminished, the separate legal personality of the organization could potentially cease to exist.14
Interference with the autonomy of IOs could also reduce the effectiveness of IOs as a means of international cooperation,15 which would deter states, particularly poorer states, from becoming members of IOs.16 Another prominent concern raised by the imposition of liability on member states for the acts of an IO is that such liability is inconsistent with, and jeopardizes, the established principle that IOs possess a separate legal personality.17 In Rosalyn Higgins’s words, ‘If members were liable for the defaults of the organization, its independent personality would be likely to become increasingly a sham’.18 This is why some IOs, like IMF and the World Bank, try to protect their legal personality by incorporating limited liability clauses in their constituent documents.19
It appears that general international law does not support the view that member states of an IO can be held liable for the internationally wrongful acts of the organization based solely on their membership. Only in limited circumstances – notably those in which an intervening act of a state occurs – will member states be held liable for the wrongful acts of IOs. These circumstances are envisaged in Part Five of the Draft Articles on the Responsibility of International Organization (DARIO), entitled ‘Responsibility of a State in Connection with the Act of an International Organization.’ 20
Member states’ liability for the acts of an international organization by virtue of a special circumstance
While member state responsibility may, most of the time, be shielded by the existence of a separate legal personality of IO, there are some exceptions when the separate international legal personality of an IO can be ignored–contained in Part Five of the DARIO. These exceptions seek to prevent states from hiding behind the organizational veil to shield themselves from liability for internationally wrongful acts committed either by the international organization alone or with member state’s help.21 Therefore, these exceptions permit third parties to hold member states liable for certain acts of IOs. The ILC’s DARIO recognizes liability where an act of an IO is attributable to a state based on the general rules of attribution under international law, similar to Articles on State Responsibility: attribution based on direction or control (Article 58), coercion (Article 59), and the acceptance of responsibility (Article 60).
Article 58 DARIO : Direction or Control
Article 58 DARIO attributes an internationally wrongful act by an organization to a state when the state directs or controls the organization in the commission of the act.22 According to this control theory, member states of an IO could be held responsible for the wrongful acts of the organization when they exercise control over the organization by their participation in its functions.23 Before the adoption of DARIO, the Westland Helicopters arbitration is the first case in which a dispute settlement body had to decide on the possible responsibility of states for the wrongful acts of an international organization.24 In 1975, the Arab Republic of Egypt (ARE), Saudi Arabia, Qatar, and the United Arab Emirates concluded a treaty establishing the Arab Organization for Industrialization (AOI). According to the AOI’s Basic Statute, the organization was endowed with legal personality, exempt from the laws and institutions of the member states. The main organ of the AOI was the Higher Committee of the AOI, which was composed of all four member states. In 1978, the Higher Committee signed a Shareholders’ Agreement with Westland Helicopters Ltd (WHL) creating a joint stock company in Egypt. Following the signing of a peace agreement between the ARE and Israel in May 1979, Saudi Arabia, Qatar, and the United Arab Emirates decided to terminate the existence of the AOI. Suffering immense damages, WHL gave notice of its decision to file for arbitration against the dissolved AOI and its member states. WHL made an argument based on a Member State’s exercise of control over an organization (AOI)–similar to the control requirement in DARIO. The argument was unsuccessful, however, as the Swiss Federal Tribunal determined that ‘the predominant role played by the founding member states and the fact that the supreme authority of the AOI is a Higher Committee composed of ministers cannot undermine the independence and personality of the organisation’.25 Similarly, in Maclaine Watson & Co Ltd v. Department of Trade, Millett J. concluded that with regard to a member state of the ITC, ‘in the absence of actual authority, which must be distinctly alleged and proved, no such authority can be inferred from the fact of membership alone’.26
Owing to the autonomous nature of IOs, only in exceptional circumstances will member states have the ability to assert the requisite direction or control over an organization.27Thus, while Article 58 DARIO does provide the possibility that member states may be held responsible for a wrongful act of an organization if a state directs and controls the IO in the commission of the act, such direction and control would need to be clearly proven and cannot be inferred from mere involvement in the operation of the organization.28
The ILC points out that such direction and control could occur within the framework of the organization, for example, the general decision-making process of an organization pursuant to the organization’s rules.29 ILC stresses that a distinction must be made between mere participation of a state as member of the organization–which will not engage liability of the member state–and the direction or control required to establish a member state as liable for a certain wrongful conduct under Article 58.30 The ILC further clarifies that the definition of the terms ‘direction and control’ in Article 58 is based on the Articles on State Responsibility.31 In that Article, the term ‘directs’ implies ‘actual direction of an operative kind’, not mere incitement, while the term ‘control’ defines domination over the wrongful conduct rather than mere oversight.32 The limited scope of the definition of direction and control means that, under ordinary circumstances, a Member State will not direct and control an IO.
However, Jean D’Aspremont has argued rather persuasively that when member states exercise overwhelming control in the decision-making process of an organization, these states should be held jointly and concurrently liable for any wrongful acts resulting from the decision.33 For instance, it could be claimed that the responsibility of certain powerful member states of a military alliance like NATO could be engaged when these organizations commit wrongful acts. This was exemplified by the fact that, after the accidental NATO bombing of the Chinese embassy in Belgrade during the NATO humanitarian intervention regarding Kosovo, the United States (NATO’s dominant state) – and not NATO itself – entered into an agreement with China to compensate the damage suffered.34
Article 59 DARIO : Coercion
Article 59 DARIO holds a state liable when it coerces an IO to commit an act that would, but for the coercion, be an internationally wrongful act of that organization.35 Similar to Article 58, a distinction must be made between coercion and mere participation in the decision-making process of the organization.36 The relationship between a Member State and an IO does not normally involve direction, control, or coercion by member states because this would conflict with the organization’s separate international legal personality, however, economic pressure could arguably constitute coercion if such pressure is sufficiently powerful enough to leave the organization with essentially no other choice but to comply with the coercing state’s desires.37 For example, a member state might threaten to withhold its contribution payments to an organization unless the organization follows through with a wrongful act. By doing this, the member state essentially blackmails the organization to comply with the state’s wishes, which will constitute as a coercion.38 As an example, if the United States as the leading contributor to the UN budget decides to withhold its contribution payments since the UN Security Council does not endorse a resolution that would caused economic sanctions on Iran, which caused adverse effects on Iran citizen’s human rights, it would not only amount to a violation of the United States’ duty to contribute to the budget of the United Nations, but could also engage the United States’ international responsibility toward third parties, in this example, Iran’s citizens.
Still, it should be noted that the liability threshold of Article 59 DARIO is a tall one: in order for the organizational veil of an IO to be pierced and a member state to be held liable, the coercion must relate specifically to a wrongful act committed by an organization39 and the coercing state must have knowledge of the circumstances surrounding the wrongful act.40
Article 61(1)(a) DARIO: Accepting responsibility
A state can be held liable for a wrongful act of an organization if the Member State ‘has accepted responsibility for that act’.41 This form of responsibility falls under the general rule of international law, and was codified in the Articles on State Responsibility. The articles provide that if a state acknowledges and adopts conduct then such conduct may be attributed to the state.42 This means that this type of liability stems from a state’s acceptance, either express or implied, of responsibility for the organization’s conduct and does not arise merely by virtue of its membership of the organization. The acceptance of responsibility does not necessarily stem from an organization’s constituent instrument.43 This type of liability is the least controversial ground for holding a state liable for an act committed by an international organization.44
Looking into Behrami/Saramati
One of the most infamous court decisions which explored the theme of accountability of international organizations is the admissibility decision of the European Court of Human Rights in Behrami/Saramati.45 In this case, the Court had to determine whether actions (which include failure to act) committed by the NATO Kosovo Force (KFOR) and the United Nations Mission in Kosovo (UNMIK) constituted violations of the Troop Contributing Nations ’ (TCN) obligations under the European Convention on Human Rights (ECHR), and whether they can be held accountable for the wrongdoings.
On May 2, 2007, in the joined cases of Behrami v. France and Saramati v. France, the Grand Chamber of the European Court of Human Rights declared the applications inadmissible by a majority vote. The Court found that the applicants’ complaints were incompatible with the provisions of the European Convention on Human Rights.46 The Behrami case, filed against France, concerned the death of a young boy, and serious injury inflicted to his brother, in Kosovo in March 2000, resulting from the detonation of a cluster bomb dropped by forces of the North Atlantic Treaty Organization (NATO) in 1999. The applicants argued that the incident had occurred because of the failure of French Kosovo Force (KFOR) troops to mark or defuse undetonated bombs that those troops knew to be present on the site in question. The complaint was based on Article 2 (“Right to Life”) of the European Convention.
The Saramati case, against Norway and France, concerned the arrest of the applicant by the UN Interim Administration Mission in Kosovo (UNMIK) police in April 2001 and his extrajudicial detention by KFOR from July of that year through following January. The applicant claimed that he had been arrested and detained by order of the KFOR commander (who was a Norwegian officer at the time of the arrest and was replaced by a French general in early October 2001). With regard to his detention, the applicant’s complaint was based on Article 5 (“Right to Liberty and Security”) of the European Convention, Article 13 (“Right to an Effective Remedy”), and Article 6 (“Right to a Fair Trial”), paragraph 1 for his lack of court access.
The Court began by first determining which entity had a mandate to detain and de-mine in Kosovo, KFOR or UNMIK. In this respect, the Court found that UNMIK was at fault for its failure to de-mine the cluster bombs.47 On the matter of Saramati’s detention, however, the Court found that the impugned action belonged to KFOR. The Court then went to examine whether actions done by both KFOR and UNMIK could be attributed to the United Nations.48
With regard to the detention of Saramati, the Court considered that the act done by KFOR commanders “…must be sufficiently limited so as to remain compatible with the degree of centralisation of [the Council’s] collective security constitutionally necessary under the Charter and, more specifically, for the acts of the delegate entity to be attributable to the UN“49. The Court then interpreted Resolution 1244 as giving rise to a chain of command by UN Security Council over the relevant territory and its inhabitants abroad through consent, invitation or acquiescence of the Government of that territory. Under that Resolution, the Security Council was also able to exercise all or some of the public powers normally to be exercised by that Government.
From the above considerations, the Court inferred that while the troop-contributing nations had some authority over their troops (for reasons of safety, discipline, and accountability) and also certain obligations in their regard (for example, material provision), UN Security Council retain the ultimate authority and control over the security mission, including the operational command for the international presence of KFOR.50 In such circumstances, the Court concluded that KFOR’s action was an exercise of its lawfully delegated powers by the Security Council. Thus, KFOR’s action was attributable to the UN.51 The Court also noted that the alleged failure of UNMIK to de-mine in the Behrami case was attributable to UN since UNMIK was “a subsidiary organ of the UN created under Chapter VII of the Charter”.52
Having decided that the actions were attributable to UN, the Court turned to the question of its competence (or jurisdiction) to judge the case. The Court noted that the United Nations had a legal personality separate from that of its member states, hence the acts done by KFOR and UNMIK can not be attributed to France, Germany, or Norway but UN itself. However, the organization was not a contracting party to the European Convention of which the Court based its jurisdiction on.53 The Court concluded that in these circumstances, the applicants’ complaints were incompatible with the provisions of the Convention and declared both applications inadmissible.
Conclusion
It can be inferred that member states are not usually held accountable by membership alone for the IO ‘s actions. Member states’ responsibility for a foreign organization’s illegal actions centred solely on the participation of a state inside the organization is usually deemed off limits because it jeopardizes the organisation’s sovereignty and distinct legal identity. It is also difficult to justify why a member state should be held liable if it was not involved in the IO’s activities. This does not mean that member states can not be held liable whatsoever. Part Five of the ILC DARIO reserves some room for the limited liability of member states for the acts of IOs in case of apparent state conduct. These exceptions further reinforces the general rule that member states cannot be held liable for the acts of international organizations by virtue of their membership alone, which prevent member states from intervening in the internal affairs of an autonomous international organization for fear of being held liable. However, it should also be noted that there is yet any precise contours of member state liability under Part Five of the DARIO (e.g., under what circumstances does a member State aid or assist an IO in committing a violation?) and the accountability mechanisms within IOs remain undeveloped. The UN, for instance, enjoys absolute immunity based upon provisions in the UN Charter and the Convention on Privileges and Immunities of the UN.
That being said, any solution relating to the member state ‘s liability for wrongdoing by IOs will have to be carefully examined in order to safeguard the autonomous international legal personality of IOs and to protect the rights of third parties. As long as the accountability mechanisms within IOs remain undeveloped, third parties will therefore continue to press for the member state to be liable for IO acts, whether on the basis of mere IO membership or on the basis of some (however insignificant) acts of the state in the context of the adoption or implementation of IOs measures. As far as the UN is concerned, for example , the organization may finally want to make provision for appropriate dispute settlement procedures to which the UN or a UN official is a party, as a counterpart to its absolute immunity.
References
All references cited in this Diplomatic Review can be accessed through https://bit.ly/ReferenceDiprevWhoIsLiable
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