The Legal Framework For The Responsibility Of International Organizations

Abstract

When states cooperate in order to form an international organization, they authorize it to have the power to perform certain functions with legal consequences. While performing these functions, an international organization may incur responsibilities to third parties. These third parties may be states, other organizations, individuals or legal persons. All the different possibilities regarding the status of the third party cause situations that differ greatly from each other. The main rule is that international organizations are responsible for the consequences of the acts performed by them.1 The capacity of international organizations to be held responsible under international law corresponds to their respective capacities to operate under international law. The responsibility of international organizations varies according to the scope of their legal personality. The responsibility will depend on their legal status vis-à-vis both member and non-member states, and will differ from organization to organization.2 With the increasing number of international organizations executing tasks with highly injurious potential, the responsibilities need to be defined clearly. The efforts to provide international organizations with the status of international legal subjects with a responsibility of their own have proved only partially successful. The law on the responsibility of international organizations is unclear.3 The two principal aims of the law of international responsibility in both domestic common law and civil law systems are: i) to prevent or minimize breaches of obligations prescribed by law; and ii) to provide remedies for those subjects whose legal rights have been infringed due to such violations. A general examination of the evolution of the law in both international and national systems in recent decades shows a change of perspective. There used to be a tendency to stress the limitations of the obligations of the potential wrongdoer, but the emphasis has shifted and now tends to be on the rights of the injured parties.4 Recently, international organizations in general and the United Nations (UN) in particular, have been placed under greater scrutiny.5 It is also noteworthy that the obligations of international organizations towards their member states have recently received some attention especially with regard to international financial institutions, such as the International Monetary Fund and the World Bank.6 In academia, this shift towards a more critical approach is reflected in the decision of the International Law Association (ILA) to create an international research committee on the 'Accountability of International Organizations'.7 The current possibilities to bring international organizations to account for their actions are limited when compared to existing possibilities with respect to states. In the absence of effective legal remedies against international organizations directly, attempts to file claims against member states continue. The view of many international law experts is that member states of an international organization do not incur legal responsibility for the acts of the organization by virtue of their membership in it. However, some writers accept that member state responsibility might be in order, if effective remedies against international organizations are lacking.8 Two basic questions are raised. Whether and under what conditions are international organizations obliged to comply with obligations under international law? What are the legal consequences of non-compliance, in particular regarding the responsibility of international organizations for damage caused in violation of the above-mentioned obligations? In theory, four alternatives can be offered as answers to these questions. The answers have also partly been followed in practice: i) Only the member states are held responsible, be it jointly, or severally and jointly; ii) the organization and the member states are held severally and jointly responsible; iii) the organization is held primarily responsible and the member states only secondarily responsible; or iv) the international organization is held exclusively responsible.9 The aim of this article is to examine the responsibility of international organizations, from a procedural perspective as a contextual perspective. It touches upon the question of member state responsibility and the phenomenon of 'piercing the corporate veil'.10 Four concrete steps of improvement, which could be taken in order to improve the situation regarding international responsibility and to increase accountability, are proposed.