Rethinking Indirect Responsibility

A Study of Article 17 of the Draft Articles on the Responsibility of International Organizations

in International Organizations Law Review
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In its Draft Articles on the Responsibility of International Organizations, the International Law Commission included Article 17 in order to regulate instances in which binding decisions and authorizations were made by international organizations that bound or applied in respect of their member States. Given that courts have struggled in vain to come up with a uniform approach applicable in such situations, one would expect that Article 17 would have been a cause for celebration. Commentators, however, lamented the inclusion of the provision, arguing that it cannot function effectively because it forms part of the problematic Chapter IV that regulates scenarios of indirect responsibility. The article rejects this approach. For the first time, it offers an integrated normative analysis of all Chapter IV provisions, and calls on the reader to rethink indirect responsibility in a way that advances and promotes coherence in the law of international responsibility. The paper adopts a contextual approach, and suggests that this understanding of Article 17 offers courts a twofold opportunity: first, the ability to effectively tackle cases that have troubled them to date; and second, to initiate a change in the way in which States and international organizations interact in the international arena.

Rethinking Indirect Responsibility

A Study of Article 17 of the Draft Articles on the Responsibility of International Organizations

in International Organizations Law Review

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References

17

d’Aspremontsupra note 6 pp. 17 24–25; Nedeski & Nollkaemper supra note 6 pp. 10–15.

26

Nedeski & Nollkeampersupra note 6 p. 10. The word is not exclusively about Chapter IV of the dario but also for their mirror rules included in Part V. However the provisions on ‘Responsibility of a State in Connection with the Conduct of an international organization’ will not be examined here but to the extent that they regulate similar scenarios in an identical manner the analysis is applicable to these provisions too. For more on these provisions see E. Paasivirta ‘Responsibility of a Member state of an International Organization: Where Will It End? Comments on Article 60 of the ilc Draft on the Responsibility of International Organisations’ (2010) 7 International Organisations Law Review p. 49.

29

d’Aspremontsupra note 6 p. 10; Blokker supra note 6 pp. 42–48; Nedeski & Nollkaemper supra note 6 pp. 10–15.

39

Ago Eighth Reportsupra note 12 p. 26; A. Orakhelashvili ‘Division of Reparation between Responsible Entities’ in J. Crawford et al. supra note 14 p. 651.

40

Blokkersupra note 6 p. 39; Nedeski & Nollkaemper supra note 6 p. 7.

43

Gaja Third Reportsupra note 13 p. 16.

54

Judgment of 10 September 2008Case No. 265615/HAZA 06-1671 para. 4.11. English translation available at: <http://www.asser.nl/upload/documents/2222012_30115Nuhanovic%2010%20September%20 2008%20(English).pdf>. The legal principle of severance of an organic tie when control is present was upheld by the same court in its recent 'Mothers of Srebrenica' Judgment of 26 July 2014 an English translation of which is available at: .

59

Frysupra note 10 p. 631; Tzanakopoulos Disobeying supra note 6 pp. 45–46; Kuijper supra note 6 p. 30.

70

Ago Eighth Reportsupra note 12 p. 26. Dominicé argues that lack of freedom is incompatible with responsibility: Dominicé supra note 46 p. 288.

77

Austsupra note 24 pp. 195 et seq.

85

Reinischsupra note 47 p. 71. In favour of substituting any material requirement with the criterion of participatory intentions See Kutz ‘Responsibility’ in J. Coleman & S. Shapiro (eds.) The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press Oxford 2002) p. 563.

87

Lowesupra note 56 p. 7.

119

Blokkersupra note 6 pp. 42–43.

125

Tzanakopoulossupra note 116.

129

Tzanakopoulossupra note 116.

139

Tzanakopoulossupra note 116.

147

F. Hoffmeistersupra note 110 p. 746; S. Talmon ‘Responsibility of international organisations: does the European Community require special treatment?’ in M. Ragazzi (eds.) International Responsibility Today: Essays in Memory of Oscar Schachter (Martinus Nijhoff Leiden/Boston 2005); P. Eeckhout ‘The eu and its Member States in the wto: Issues of Responsibility’ in L. Bartels & F. Ortino (eds.) Regional Trade Agreements and the wto Legal System (Oxford University Press New York 2006) pp. 449 453–455 and E. Paasivirta & P. J. Kuijper supra note 19.

153

Gaja Third Reportsupra note 13 paras. 27–28.

155

Blokkersupra note 6 p. 45.

159

Nedeski & Nollkaempersupra note 6 p. 15.

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