IO Reputation and the Draft Articles on IO Responsibility

In 2011, the International Law Commission adopted a set of draft articles on the responsibility of international organizations. Like the ILC’s draft articles on state responsibility, the IO Responsibility Articles seek to clarify both the circumstances that establish a breach of an international obligation and the consequences of responsibility, including the obligation to make full reparation for injuries caused by such violations.

The IO Responsibility Articles have come in for a lot of criticism from legal scholars. José Alvarez, for one, has described the ILC’s effort as ‘at best premature and at worst misguided’. In his view, the IO Responsibility Articles are premature, partly because there is not nearly enough practice to warrant their codification, and partly because the primary norms of international law that bind IOs remain unsettled. In particular, there’s considerable disagreement on how and when IOs are bound by customary international law and by treaties to which they are not parties.

Scholars—including Jan Klabbers, who is participating in this online symposium—have also questioned whether the IO Responsibility Articles would have any practical effect. They rightly note that the IO Responsibility Articles have elicited no substantial support from states and IOs. Although the ILC’s draft articles have often formed the basis for treaty negotiations, there’s no chance that the IO Responsibility Articles will be transformed into a treaty anytime soon. Furthermore, except in rare cases, neither international nor national courts can assess whether IOs have violated international law. Under these circumstances, one might be forgiven for thinking that the IO Responsibility Articles can safely be ignored.

I am more optimistic about the IO responsibility articles; I argue that they are neither premature nor feckless. In fact, the IO Responsibility Articles can help to clarify the primary international law norms that bind IOs. The IO Responsibility Articles may also spur IOs and their member states to prevent violations and to address violations promptly if they occur. And that’s so even if the IO Responsibility Articles never become a treaty and even if no new dispute-settlement mechanisms are developed.

The key mechanism for realizing these effects is the decentralized, transnational discourse surrounding international norms. Participants in the discourse include not only government and IO officials, but also NGOs, national legislators, and private individuals. Because the motivations and interests of these actors diverge, some actors will be willing to press arguments that others would prefer to avoid. For example, NGOs may be particularly well positioned to make arguments that governments are unwilling or unable to make.  These actors have a range of forums available to them, including national courts and newspaper editorial pages. The IO Responsibility Articles can shape this discourse by heightening the salience of IOs’ violations of international law, increasing the likelihood that policy disputes will be framed as violations of international law.

The question whether IOs will be influenced by this discourse stirs up old debates about the influence of law talk in the international sphere.  On one side, legal process and constructivist scholars have long argued that transnational discourse plays a prominent role in explaining states’ behavior, in part by shaping the very interests states then pursue. On the other side, scholars who view states as unitary rational actors doubt the significance of this discourse. Talk is cheap. While they acknowledge a bad reputation for compliance might impose some costs— like tougher treaty terms down the line— these scholars don’t expect most states to view these costs as significant—especially if they’ve concluded that they can better achieve their foreign policy goals by cultivating reputations for toughness, unpredictability, or irrationality.

Regardless of who has the best of this debate, I think IOs are likely to be more sensitive to transnational discourse than states are, since the force of rational choice skepticism about the significance of discourse seems much weaker as applied to IOs. A reputation for complying with international law is uniquely important to an IO’s legitimacy, as a creature that owes its very existence to that law. And IOs’ effectiveness is in turn tightly linked to their legitimacy because they depend so heavily on voluntary state support and cooperation. Unless they are perceived as legitimate, IOs will have a difficult time securing either one. While some states might prefer reputations for toughness or unpredictability, reputations that are appealing to isolationist states like North Korea are simply unavailable to IOs.

Because reputations for complying with international law are so important to IOs, I contend that IOs and their member states are likely to take action to prevent and address violations of international law, precisely so as to deflect threats to their legitimacy. Doing so is a means to preserve their effectiveness. And that prediction seems to line up with the facts. Indeed, the frequency with which IOs take steps to comply with international norms—notwithstanding ongoing disputes about whether those norms actually bind them—testifies to the importance to IOs of avoiding an outlaw reputation.

Because the ILC only recently adopted the IO Responsibility Articles, it’s still early to look for concrete evidence that they’ve shaped transnational discourse and, in turn, IO behavior. While my account is somewhat speculative, the ongoing controversy over the United Nations’ alleged role in (inadvertently) introducing cholera to Haiti offers some support. A growing body of evidence confirms that the most likely source of cholera in Haiti is Nepalese peacekeepers who arrived in the wake of the devastating earthquake that hit there in 2012—and that inadequate sanitation at the peacekeepers’ camp allowed the cholera to spread throughout the country.  Since 2010, more than 700,000 individuals have fallen ill with cholera in Haiti; about 8,500 have died.

My article describes the transnational discourse over this controversy in detail, but the key points are straightforward. Non-state actors—specifically NGOs in Boston and Haiti—filed a petition with the UN Secretary-General arguing that by introducing cholera and failing to pay compensation to victims, the United Nations violated customary international law and two treaties (the Convention on the Privileges and Immunities of the United Nations and the Status of Forces Agreement between the United Nations and Haiti). Significantly, the petitioners invoked the IO Responsibility Articles to bolster their claim. Fifteen months later, the United Nations denied the petition, asserting flatly that claims that “necessarily include a review of political and policy matters” are “not receivable” pursuant to the convention governing the United Nations’ privileges and immunities. The United Nations’ rather conclusory denial did not end the discussion.  A former UN official questioned the consistency of the United Nations’ stated position with past practice. Meanwhile, the UN High Commissioner for Human Rights, members of the US Congress, and newspaper editorial writers in South Africa have all continued to push the United Nations to take responsibility and pay compensation.

This discourse has not yet yielded an authoritative answer about the UN’s substantive obligations under international law. It has, however, shed significant light on the UN’s obligation to provide for the settlement of specified categories of disputes. Indeed, no other participant in the debates has defended the UN’s position.  The United Nations’ stark view might still prevail, but the discourse surrounding Haiti—and the IO Responsibility Articles—makes it considerably more unlikely.

Indeed, the United Nations’ position has shifted since the petition was filed.  The United Nations continues to refuse to pay compensation, but the Secretary-General has announced a 10-year, US$2.2 billion initiative that would invest in prevention, treatment, and education regarding cholera in Haiti and the neighboring Dominican Republic. And, last July, the Secretary-General made a statement that reflected a significant shift in the United Nations’ rhetoric: “Regardless of what the legal implication may be, as the secretary general of the United Nations and as a person, I feel very sad.” He continued: “I believe that the international community, including the United Nations, has a moral responsibility to help the Haitian people stem the further spread of this cholera epidemic.” While the United Nations has not framed these steps in terms of the IO Responsibility Articles, its actions are of course emerging from the shadow of the ongoing discourse, and could easily be characterized as a tacit and partial effort to make the reparations that the IO Responsibility Articles require in these circumstances.

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International relations and international legal scholarship is rife with theories about why states will—or won’t—comply with their international obligations. To date, however, efforts to specify IOs’ international obligations and the consequences for violating them have proceeded without any parallel effort to develop a theoretical account of why IOs will comply with those obligations. In the course of arguing that the IO Responsibility Articles are likely to have practical effect, I take a first step towards filling this crucial gap in the literature on IOs.