INTERNAIONAL ORGANISATIONS : ISSUES OF RESPONSABILITY AND IMMUNITIES

Question 1

Importance and limits in the Responsability of IO

Answer 1

It is about the responsability stricto sensu = the consequences for an IO of the breach of its obligations.

Question 2

Articles of 2011 on the responsability of IO

Answer 2

The issue of responsability is important in two ways :

• theoretical : responsability is the necessary corollary of rights (ICJ, Barcelona traction). Every breach of obligations should lead to legal consequences. Responsability is part of the legal personality.
• practical : responsability is more important now that IO take the risk of being responsabilité during their activities.

SO IO have to be responsible. 2 conditions :

• a specific act attribuable to the IO : conduct of an organ/agent of the IO in the performance of its functions (art 6) OR that is placed at the disposal of another IO (art 7).
• a breach of an international obligation of the IO itself ≠ from the member state !

Question 3

The intricacies of States and IO responsability : sharing the burden of responsability

Answer 3

Art 4 ILC, 2011 give 2 main elements in the structure of responsability :

• PRINCIPLE : responsability = attribution + breach of an obligation.
• EXCEPTION : circumstances precluding wrongfulness = the two conditions are met but the action has been done under specific circumstances (self defence, major force..) :
  
  • countermeasures : a way for an IO to induce another actor to respect its obligations. It IS a breach but that answers to a prior violation, so it is not wrongful anymore.

Quid when the breach is committed by a a member state ? Responsability can arises BUT only if the IO exercised any sort of control or constraint on the act of the State. BUT IOo doesn’t have their own funding, this is why they can turn to member states and request them to help (art 40). States should then «make an effort» (≠ obligation).

Question 4

The implementation of OI Responsability

Answer 4

Where a State can claim against another before the ICJ, such mechanism doesn’t exist from IO. (ICJ = sovereign states only art 34). Two possibilities to claim responsibility :

• Judicial system created by the constitutive treaty : ECHR.
• Tribunals created by the IO itself : possible but their jurisdiction is restricted to labour issues within the IO (= between individuals and the UN). Example : the SOFA agreement = agreement between the UN and the host country during a peace-keeping operation that obligates the UN to establish claims commissions for private claims.

Question 5

Accountability and Liability

Answer 5

LIABILITY of IO towards individuals : UNGA RES 52/47 : accepts the idea that the UN can be liable in the case of damages done to individuals BUT with limits :
- temporary : 2 years to make a claim
- financial : the amount of the compensation cannot > 50k dollars. It does not include moral damages.

The rise of ACCOUNTABILTY : IO are reluctant to accept liability but not accountabililty (sort of moral responsibility). Ex : Cholera Haiti case, 2016 : the UN decline legal responsability but accept having a moral responsability that leads it to create a fund -> mechanisms of accountability in order to redress the consequences of its conduct.

Question 6

Immunities of IO (rationales)

Answer 6

Immunities are a device designed to avoid the competence of a domestic tribunal. IO have legal personality (Bernadotte advice) but they are located on a state territory and thus, the host state could exercice any influence it can -> immunities are made to protection IO from the risk of being subjective to the competence of the domestic tribunals of the host state.

Question 7

Immunities of IO : functional or absolute ?

Answer 7

Art 105 UNCH allows representatives of the member states + UN officials to enjoy immunities BUT it is always functional immunities = they are attached to the functions in connection with the IO. An act of an UN official will be protected by immunities only if it can be proved that it were performed in the exercice of their functions. The private conduct does not fall under this scope = NOT absolute immunities.

Convention on the privileges and immunities of the UN, 1946 : recognises immunities that are NOT limited to the functions of the IO, it is way broader. -> IO immunities are today more protective than States immunities.

Question 8

Immunities of the IO : beneficiaries

Answer 8

ECHR, WAITE AND KENNEDY V. GERMANY : the Court acknowledges that immunity is necessary for IO BUT sets the limit of the equivalent protection principle = as long as the IO provides émanas of dispute settlement which guarantee the rights for individuals to a fair trial.
- at first : light control, the Court only verified if there were bodies to receive claims.
- but now : the Court gives attention to the functioning of the internal mechanism, it must effectively gives access to a fair trial.