Responsibility of international organizations : comments and information received from governments and international organizations report of the Secretary-General
Responsibility of international organizations : comments and information received from governments and international organizations report of the Secretary-General
Welcomes the conclusion of the work of the International Law Commission on responsibility of international organizations and its adoption of the draft articles and a detailed commentary on the subject;Error: Reference source not found
2
Expresses its appreciation to the International Law Commission for its continuing contribution to the codification and progressive development of international law;
3
Takes note of the articles on the responsibility of international organizations, presented by the International Law Commission, the text of which is annexed to the present resolution, and commends them to the attention of Governments and international organizations without prejudice to the question of their future adoption or other appropriate action;
4
Decides to include in the provisional agenda of its sixty-ninth session an item entitled “Responsibility of international organizations”, with a view to examining, inter alia, the question of the form that might be given to the articles.
Responsibility of international organizations
Part One Introduction
Scope of the present articles
1
The present articles apply to the international responsibility of an international organization for an internationally wrongful act.
2
The present articles also apply to the international responsibility of a State for an internationally wrongful act in connection with the conduct of an international organization.
Use of terms
For the purposes of the present articles:
a
“International organization” means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities;
b
“Rules of the organization” means, in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization;
c
“Organ of an international organization” means any person or entity which has that status in accordance with the rules of the organization;
d
“Agent of an international organization” means an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.
Part Two The internationally wrongful act of an international organization
General principles
Responsibility of an international organization for its internationally wrongful acts
Every internationally wrongful act of an international organization entails the international responsibility of that organization.
Elements of an internationally wrongful act of an international organization
There is an internationally wrongful act of an international organization when conduct consisting of an action or omission:
a
Is attributable to that organization under international law; and
b
Constitutes a breach of an international obligation of that organization.
Characterization of an act of an international organization as internationally wrongful
The characterization of an act of an international organization as internationally wrongful is governed by international law.
Attribution of conduct to an international organization
Conduct of organs or agents of an international organization
1
The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization.
2
The rules of the organization apply in the determination of the functions of its organs and agents.
Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization
The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.
Excess of authority or contravention of instructions
The conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions.
Conduct acknowledged and adopted by an international organization as its own
Conduct which is not attributable to an international organization under articles 6 to 8 shall nevertheless be considered an act of that organization under international law if and to the extent that the organization acknowledges and adopts the conduct in question as its own.
Breach of an international obligation
Existence of a breach of an international obligation
1
There is a breach of an international obligation by an international organization when an act of that international organization is not in conformity with what is required of it by that obligation, regardless of the origin or character of the obligation concerned.
2
Paragraph 1 includes the breach of any international obligation that may arise for an international organization towards its members under the rules of the organization.
International obligation in force for an international organization
An act of an international organization does not constitute a breach of an international obligation unless the organization is bound by the obligation in question at the time the act occurs.
Extension in time of the breach of an international obligation
1
The breach of an international obligation by an act of an international organization not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
2
The breach of an international obligation by an act of an international organization having a continuing character extends over the entire period during which the act continues and remains not in conformity with that obligation.
3
The breach of an international obligation requiring an international organization to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.
Breach consisting of a composite act
1
The breach of an international obligation by an international organization through a series of actions and omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
2
In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.
Responsibility of an international organization in connection with the act of a State or another international organization
Aid or assistance in the commission of an internationally wrongful act
An international organization which aids or assists a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for doing so if:
a
The former organization does so with knowledge of the circumstances of the internationally wrongful act; and
b
The act would be internationally wrongful if committed by that organization.
Direction and control exercised over the commission of an internationally wrongful act
An international organization which directs and controls a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for that act if:
a
The former organization does so with knowledge of the circumstances of the internationally wrongful act; and
b
The act would be internationally wrongful if committed by that organization.
Coercion of a State or another international organization
An international organization which coerces a State or another international organization to commit an act is internationally responsible for that act if:
a
The act would, but for the coercion, be an internationally wrongful act of the coerced State or international organization; and
b
The coercing international organization does so with knowledge of the circumstances of the act.
Circumvention of international obligations through decisions and authorizations addressed to members
1
An international organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization.
2
An international organization incurs international responsibility if it circumvents one of its international obligations by authorizing member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization and the act in question is committed because of that authorization.
3
Paragraphs 1 and 2 apply whether or not the act in question is internationally wrongful for the member States or international organizations to which the decision or authorization is addressed.
Responsibility of an international organization member of another international organization
Without prejudice to articles 14 to 17, the international responsibility of an international organization that is a member of another international organization also arises in relation to an act of the latter under the conditions set out in articles 61 and 62 for States that are members of an international organization.
Effect of this Chapter
This Chapter is without prejudice to the international responsibility of the State or international organization which commits the act in question, or of any other State or international organization.
Circumstances precluding wrongfulness
Consent
Valid consent by a State or an international organization to the commission of a given act by another international organization precludes the wrongfulness of that act in relation to that State or the former organization to the extent that the act remains within the limits of that consent.
Self-defence
The wrongfulness of an act of an international organization is precluded if and to the extent that the act constitutes a lawful measure of self-defence under international law.
Countermeasures
1
Subject to paragraphs 2 and 3, the wrongfulness of an act of an international organization not in conformity with an international obligation towards a State or another international organization is precluded if and to the extent that the act constitutes a countermeasure taken in accordance with the substantive and procedural conditions required by international law, including those set forth in Chapter II of Part Four for countermeasures taken against another international organization.
2
Subject to paragraph 3, an international organization may not take countermeasures against a responsible member State or international organization unless:
a
The conditions referred to in paragraph 1 are met;
b
The countermeasures are not inconsistent with the rules of the organization; and
c
No appropriate means are available for otherwise inducing compliance with the obligations of the responsible State or international organization concerning cessation of the breach and reparation.
3
Countermeasures may not be taken by an international organization against a member State or international organization in response to a breach of an international obligation under the rules of the organization unless such countermeasures are provided for by those rules.
Force majeure
1
The wrongfulness of an act of an international organization not in conformity with an international obligation of that organization is precluded if the act is due to force majeure, that is, the occurrence of an irresistible force or of an unforeseen event, beyond the control of the organization, making it materially impossible in the circumstances to perform the obligation.
2
Paragraph 1 does not apply if:
a
The situation of force majeure is due, either alone or in combination with other factors, to the conduct of the organization invoking it; or
b
The organization has assumed the risk of that situation occurring.
Distress
1
The wrongfulness of an act of an international organization not in conformity with an international obligation of that organization is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2
Paragraph 1 does not apply if:
a
The situation of distress is due, either alone or in combination with other factors, to the conduct of the organization invoking it; or
b
The act in question is likely to create a comparable or greater peril.
Necessity
1
Necessity may not be invoked by an international organization as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that organization unless the act:
a
Is the only means for the organization to safeguard against a grave and imminent peril an essential interest of its member States or of the international community as a whole, when the organization has, in accordance with international law, the function to protect the interest in question; and
b
Does not seriously impair an essential interest of the State or States towards which the international obligation exists, or of the international community as a whole.
2
In any case, necessity may not be invoked by an international organization as a ground for precluding wrongfulness if:
a
The international obligation in question excludes the possibility of invoking necessity; or
b
The organization has contributed to the situation of necessity.
Compliance with peremptory norms
Nothing in this Chapter precludes the wrongfulness of any act of an international organization which is not in conformity with an obligation arising under a peremptory norm of general international law.
Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this Chapter is without prejudice to:
a
Compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists;
b
The question of compensation for any material loss caused by the act in question.
Part Three Content of the international responsibility of an international organization
General principles
Legal consequences of an internationally wrongful act
The international responsibility of an international organization which is entailed by an internationally wrongful act in accordance with the provisions of Part Two involves legal consequences as set out in this Part.
Continued duty of performance
The legal consequences of an internationally wrongful act under this Part do not affect the continued duty of the responsible international organization to perform the obligation breached.
Cessation and non-repetition
The international organization responsible for the internationally wrongful act is under an obligation:
a
To cease that act, if it is continuing;
b
To offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
Reparation
1
The responsible international organization is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2
Injury includes any damage, whether material or moral, caused by the internationally wrongful act of an international organization.
Relevance of the rules of the organization
1
The responsible international organization may not rely on its rules as justification for failure to comply with its obligations under this Part.
2
Paragraph 1 is without prejudice to the applicability of the rules of an international organization to the relations between the organization and its member States and organizations.
Scope of international obligations set out in this Part
1
The obligations of the responsible international organization set out in this Part may be owed to one or more States, to one or more other organizations, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach.
2
This Part is without prejudice to any right, arising from the international responsibility of an international organization, which may accrue directly to any person or entity other than a State or an international organization.
Reparation for injury
Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this Chapter.
Restitution
An international organization responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:
a
Is not materially impossible;
b
Does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
Compensation
1
The international organization responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
2
The compensation shall cover any financially assessable damage, including loss of profits insofar as it is established.
Satisfaction
1
The international organization responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2
Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3
Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible international organization.
Interest
1
Interest on any principal sum due under this Chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.
2
Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled.
Contribution to the injury
In the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or international organization or of any person or entity in relation to whom reparation is sought.
Ensuring the fulfilment of the obligation to make reparation
1
The responsible international organization shall take all appropriate measures in accordance with its rules to ensure that its members provide it with the means for effectively fulfilling its obligations under this Chapter.
2
The members of a responsible international organization shall take all the appropriate measures that may be required by the rules of the organization in order to enable the organization to fulfil its obligations under this Chapter.
Serious breaches of obligations under peremptory norms of general international law
Application of this Chapter
1
This Chapter applies to the international responsibility which is entailed by a serious breach by an international organization of an obligation arising under a peremptory norm of general international law.
2
A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible international organization to fulfil the obligation.
Particular consequences of a serious breach of an obligation under this Chapter
1
States and international organizations shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 41.
2
No State or international organization shall recognize as lawful a situation created by a serious breach within the meaning of article 41, nor render aid or assistance in maintaining that situation.
3
Article 42 is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this Chapter applies may entail under international law.
Part Four The implementation of the international responsibility of an international organization
Invocation of the responsibility of an international organization
Invocation of responsibility by an injured State or international organization
A State or an international organization is entitled as an injured State or an injured international organization to invoke the responsibility of another international organization if the obligation breached is owed to:
a
That State or the former international organization individually;
b
A group of States or international organizations including that State or the former international organization, or the international community as a whole, and the breach of the obligation:
i
Specially affects that State or that international organization; or
ii
Is of such a character as radically to change the position of all the other States and international organizations to which the obligation is owed with respect to the further performance of the obligation.
Notice of claim by an injured State or international organization
1
An injured State or international organization which invokes the responsibility of another international organization shall give notice of its claim to that organization.
2
The injured State or international organization may specify in particular:
a
The conduct that the responsible international organization should take in order to cease the wrongful act, if it is continuing;
b
What form reparation should take in accordance with the provisions of Part Three.
Admissibility of claims
1
An injured State may not invoke the responsibility of an international organization if the claim is not brought in accordance with any applicable rule relating to the nationality of claims.
2
When the rule of exhaustion of local remedies applies to a claim, an injured State or international organization may not invoke the responsibility of another international organization if any available and effective remedy has not been exhausted.
Loss of the right to invoke responsibility
The responsibility of an international organization may not be invoked if:
a
The injured State or international organization has validly waived the claim;
b
The injured State or international organization is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.
Plurality of injured States or international organizations
Where several States or international organizations are injured by the same internationally wrongful act of an international organization, each injured State or international organization may separately invoke the responsibility of the international organization for the internationally wrongful act.
Responsibility of an international organization and one or more States or international organizations
1
Where an international organization and one or more States or other international organizations are responsible for the same internationally wrongful act, the responsibility of each State or organization may be invoked in relation to that act.
2
Subsidiary responsibility may be invoked insofar as the invocation of the primary responsibility has not led to reparation.
3
Paragraphs 1 and 2:
a
Do not permit any injured State or international organization to recover, by way of compensation, more than the damage it has suffered;
b
Are without prejudice to any right of recourse that the State or international organization providing reparation may have against the other responsible States or international organizations.
Invocation of responsibility by a State or an international organization other than an injured State or international organization
1
A State or an international organization other than an injured State or international organization is entitled to invoke the responsibility of another international organization in accordance with paragraph 4 if the obligation breached is owed to a group of States or international organizations, including the State or organization that invokes responsibility, and is established for the protection of a collective interest of the group.
2
A State other than an injured State is entitled to invoke the responsibility of an international organization in accordance with paragraph 4 if the obligation breached is owed to the international community as a whole.
3
An international organization other than an injured international organization is entitled to invoke the responsibility of another international organization in accordance with paragraph 4 if the obligation breached is owed to the international community as a whole and safeguarding the interest of the international community as a whole underlying the obligation breached is within the functions of the international organization invoking responsibility.
4
A State or an international organization entitled to invoke responsibility under paragraphs 1 to 3 may claim from the responsible international organization:
a
Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and
b
Performance of the obligation of reparation in accordance with Part Three, in the interest of the injured State or international organization or of the beneficiaries of the obligation breached.
5
The requirements for the invocation of responsibility by an injured State or international organization under articles 44, 45, paragraph 2, and 46 apply to an invocation of responsibility by a State or international organization entitled to do so under paragraphs 1 to 4.
Scope of this Chapter
This Chapter is without prejudice to the entitlement that a person or entity other than a State or an international organization may have to invoke the international responsibility of an international organization.
Countermeasures
Object and limits of countermeasures
1
An injured State or an injured international organization may only take countermeasures against an international organization which is responsible for an internationally wrongful act in order to induce that organization to comply with its obligations under Part Three.
2
Countermeasures are limited to the non-performance for the time being of international obligations of the State or international organization taking the measures towards the responsible international organization.
3
Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
4
Countermeasures shall, as far as possible, be taken in such a way as to limit their effects on the exercise by the responsible international organization of its functions.
Conditions for taking countermeasures by members of an international organization
1
Subject to paragraph 2, an injured State or international organization which is a member of a responsible international organization may not take countermeasures against that organization unless:
a
The conditions referred to in article 51 are met;
b
The countermeasures are not inconsistent with the rules of the organization; and
c
No appropriate means are available for otherwise inducing compliance with the obligations of the responsible international organization concerning cessation of the breach and reparation.
2
Countermeasures may not be taken by an injured State or international organization which is a member of a responsible international organization against that organization in response to a breach of an international obligation under the rules of the organization unless such countermeasures are provided for by those rules.
Obligations not affected by countermeasures
1
Countermeasures shall not affect:
a
The obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
b
Obligations for the protection of human rights;
c
Obligations of a humanitarian character prohibiting reprisals;
d
Other obligations under peremptory norms of general international law.
2
An injured State or international organization taking countermeasures is not relieved from fulfilling its obligations:
a
Under any dispute settlement procedure applicable between it and the responsible international organization;
b
To respect any inviolability of organs or agents of the responsible international organization and of the premises, archives and documents of that organization.
Proportionality of countermeasures
Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.
Conditions relating to resort to countermeasures
1
Before taking countermeasures, an injured State or international organization shall:
a
Call upon the responsible international organization, in accordance with article 44, to fulfil its obligations under Part Three;
b
Notify the responsible international organization of any decision to take countermeasures and offer to negotiate with that organization.
2
Notwithstanding paragraph 1 (b), the injured State or international organization may take such urgent countermeasures as are necessary to preserve its rights.
3
Countermeasures may not be taken and, if already taken, must be suspended without undue delay if:
a
The internationally wrongful act has ceased; and
b
The dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.
4
Paragraph 3 does not apply if the responsible international organization fails to implement the dispute settlement procedures in good faith.
Termination of countermeasures
Countermeasures shall be terminated as soon as the responsible international organization has complied with its obligations under Part Three in relation to the internationally wrongful act.
Measures taken by States or international organizations other than an injured State or organization
This Chapter does not prejudice the right of any State or international organization, entitled under article 49, paragraphs 1 to 3, to invoke the responsibility of another international organization, to take lawful measures against that organization to ensure cessation of the breach and reparation in the interest of the injured State or organization or of the beneficiaries of the obligation breached.
Part Five Responsibility of a State in connection with the conduct of an international organization
Aid or assistance by a State in the commission of an internationally wrongful act by an international organization
1
A State which aids or assists an international organization in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
a
The State does so with knowledge of the circumstances of the internationally wrongful act; and
b
The act would be internationally wrongful if committed by that State.
2
An act by a State member of an international organization done in accordance with the rules of the organization does not as such engage the international responsibility of that State under the terms of article 58.
Direction and control exercised by a State over the commission of an internationally wrongful act by an international organization
1
A State which directs and controls an international organization in the commission of an internationally wrongful act by the latter is internationally responsible for that act if:
a
The State does so with knowledge of the circumstances of the internationally wrongful act; and
b
The act would be internationally wrongful if committed by that State.
2
An act by a State member of an international organization done in accordance with the rules of the organization does not as such engage the international responsibility of that State under the terms of article 59.
Coercion of an international organization by a State
A State which coerces an international organization to commit an act is internationally responsible for that act if:
a
The act would, but for the coercion, be an internationally wrongful act of the coerced international organization; and
b
The coercing State does so with knowledge of the circumstances of the act.
Circumvention of international obligations of a State member of an international organization
1
A State member of an international organization incurs international responsibility if, by taking advantage of the fact that the organization has competence in relation to the subject matter of one of the State’s international obligations, it circumvents that obligation by causing the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation.
2
Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization.
Responsibility of a State member of an international organization for an internationally wrongful act of that organization
1
A State member of an international organization is responsible for an internationally wrongful act of that organization if:
a
It has accepted responsibility for that act towards the injured party; or
b
It has led the injured party to rely on its responsibility.
2
Any international responsibility of a State under paragraph 1 is presumed to be subsidiary.
Effect of this Part
This Part is without prejudice to the international responsibility of the international organization which commits the act in question, or of any State or other international organization.
Part Six General provisions
Lex specialis
These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members.
Questions of international responsibility not regulated by these articles
The applicable rules of international law continue to govern questions concerning the responsibility of an international organization or a State for an internationally wrongful act to the extent that they are not regulated by these articles.
Individual responsibility
These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of an international organization or a State.
Charter of the United Nations
These articles are without prejudice to the Charter of the United Nations.
