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Misadventures in Subjecthood

Published on September 29, 2010        Author: 

Professor José Alvarez is Herbert and Rose Rubin Professor of International Law at New York University School of Law and Special Adviser on Public International Law, Office of the Prosecutor, International Criminal Court. He is the immediate past President of the American Society of International Law

Editor’s Note: This piece is cross posted from http://opiniojuris.org/ where Professor Alvarez is guest blogging this week. We are delighted to have Professor Alvarez on EJIL:Talk! and would recommend that readers view his other posts on Opinio Juris

As a member of the U.S. State Department’s Advisory Committee on International Law, I was asked to give my reactions to the International Law Commission’s release, on first reading, of a set of proposed articles on the Responsibility of International Organizations. (For the ILC’s report containing these draft articles and commentaries, see here). I was probably asked to undertake this task given my prior interest in these matters (see my 2006 speech to the Canadian Council of International Law, “International Organizations: Accountability or Responsibility?”).

As my memorandum produced for the Advisory Committee meeting on June 21st indicates (see my memo on the “ILC’s Draft Articles on the Responsibility of International Organizations”), time has not ameliorated my concerns about the direction of the ILC’s work. On the contrary the newly completed set of 66 articles heightens my worries that, on this occasion, the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development. In this case, the latter has vastly overtaken the former. In my view, the ILC’s latest effort is likely to encounter considerable resistance where it matters the most, among states. (Of course, my memo reflects my own views and do not necessarily reflect those of the rest of the Advisory Committee or of the U.S. State Department.)

There is scarcely any doubt that the accountability and responsibility of international organizations (henceforth “IOs”) is among the hottest topics in public international law. Scandals involving the UN’s oil-for-food, the actions of UN peacekeepers, the sexual harassment of UN employees, and the (in) actions of the UN Security Council in too many sites of atrocity to mention have kept the issue on the front burner for some time. Accountability concerns also help to explain the proliferation of inspection panels in international financial institutions and have given rise to a number of high profile cases before European courts. Political scientists and legal scholars have repeatedly turned to the question, proposing a variety of solutions, extending from political “checks and balances” among institutional organs to more familiar approaches to control or supervise the discretion of agents drawn from principal-agent theory. (See, e.g., Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” 99 Am,. Pol. Sc. Rev. 29 (Feb. 2005); Karen Alter, “Agents or Trustees?”)  From a legal standpoint, the difficulties of turning to courts – national or international – to impose liability on an IO such as the UN are familiar. National courts, including those in the United States, usually recognize the immunity of IOs under binding treaties, such as the UN Convention (which grants the UN absolute immunity) or domestic laws. Comparable immunities make it difficult for claimants, even IO employees victimized by their superiors’ sexual harassment, to secure a judicial remedy against IO officials – except within the internal mechanisms provided by the organizations themselves. (See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983). But see August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” 7 Chinese J. In’tl L. 285 (2008) (noting a trend among a small number of national courts to withdraw immunity where needed to avoid a denial of justice).) International courts rarely even have jurisdiction to consider such questions since only states can be parties to contentious cases before the ICJ, and IOs are not even capable of joining instruments such as the European Convention on Human Rights. The rare example where an IO can be regularly sued in court – suits against EU institutions within the European Court of Justice – suggest how rarely the question can come up as the European Union, in the views of most, is probably sui generis, belonging neither to the genus of international organization nor sovereign state.

The prospect of using a court to secure a remedy against members of an IO has come up somewhat more frequently. Some European courts have suggested that such liability might be possible, for example, based on the principle of abuse of right, estoppel or unclean hands. (See, e.g., Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 Feb. 1999, ECHR 13, 116 ILR 121, 134.) Essentially the idea is that states should not be able to undertake action through an organization that would be illegal or wrongful if committed by any of them individually – as under human rights treaties – and that on such occasions courts should pierce the IO veil and render states (or particular members) liable. But these suggestions have been mostly relegated to dicta. For the most part, rendering states liable for their actions as members of a global IO such as the UN have been resisted by scholars and understandably, by states themselves. (See, e.g., Institut de Droit International, The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties, Session of Lisbonne (1995).)

What this means is that but for instances involving European institutions, rare cases where IOs have assumed territorial responsibilities (as in Kosovo), and the special case of UN peacekeepers – for whom the UN has accepted responsibility historically – the responsibility of IOs has been a topic for academic speculation but relatively little practice. The combination of organizational immunities (qualified or absolute) and absence of judicial (or other) forum with jurisdiction to hear complaints has made the suggestion — drawn from the ICJ’s affirmation of “legal personality” for the UN in the Reparation Case that like all other subjects of international law, IOs have rights and responsibilities — an intriguing question for scholars but not one that not engaged the attention of many practitioners or judges. This is, of course, very different from the position of the leading subject of international law, states, for whom the enjoyment of privileges and immunities has not been the end of the story. Given their reciprocal needs vis-à-vis each other, states have generally recognized that they are not immune from responsibility for their internationally wrongful acts and that their mutual responsibilities embrace, as was recognized by the ILC’s Articles of State Responsibility, diverse means — from apologies to countermeasures to financial liability. Accordingly, when the ILC turned its attention to that topic, its nearly multi-decade-long effort involved far more codification of the abundant practices of states and courts than progressive development. The last only occurred on the margins of enumerating the black letter rules for which the ILC found real world support.

With respect to the IO responsibility project, the ILC was not hindered by the absence of practice. It bravely (rashly?) undertook to delineate rules with respect to not only IOs, but with respect to states in connection with acts that they commit within IOs. (At a minimum, truth in advertising would suggest that the ILC re-title its effort, “articles on the responsibility of IOs and with respect to states in connection with their acts within IOs.” Such an awkward mouthful has not hindered other ILC efforts in the past.) Read the rest of this entry…