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The International Law Commission Embarks on the Second Reading of Draft Articles on the Responsibility of International Organizations

Published on April 30, 2011        Author: 

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Jean d’Aspremont and Christiane Ahlborn  are both at the Amsterdam Centre for International Law

On 26 April 2011 the UN International Law Commission (hereafter ILC) began its second reading of the draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts (hereafter DARIO). It is well-known that the ILC has been continuously confronted with a lack of clear practice since it began its study on the law of the responsibility of international organizations in 2002. As a result thereof, the Special Rapporteur has often been – mistakenly in our view – accused of yielding to the temptation to proceed on the basis of analogies with the 2001 Articles on the Responsibility of States for International Wrongful Act (hereafter ASR) [see for example, previous EJIL:Talk! Commentary here]. International organizations in particular have been among the most virulent protesters, as they have continuously emphasized the necessity to resist any overgeneralization informed by the ASR and the need to recognize the institutional diversity of the international society. Navigating amid these criticisms, the ILC, under the wise guidance of its Special Rapporteur, has nonetheless managed to adopt a first set of draft articles on first reading in 2009 which strikes a reasonably astute balance between institutional heterogeneity and the need for overarching secondary rules governing the responsibility of all institutional subjects of international law.

The DARIO and the ASR

It is our impression that the DARIO, as adopted on first reading, only partly mirror the ASR; in fact, the differences between the DARIO and ASR are too often underestimated.  The ILC did not only omit or add specific provisions from and to the DARIO (examples are the missing Article 3 of the ASR and the new Articles 16 and 60 of the DARIO, respectively) but also included more subtle changes in the text and structure of the DARIO. In light of the continuing critique during the drafting process, it is interesting – if not paradoxical – that the comments made by international organizations and States in reaction to the whole set of DARIO on first reading especially zero in on those draft provisions that do not or only party resemble the ASR(see here). Read the rest of this entry…

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