University of Macerata Prof. Avv. Roberto Baratta, PhD International Institutions Law

IIs Responsibility Responsibility of IIs for an act that is internationally wrongful The Basic Issue: Behrami and Saramati case (ECHR 2007): is the UN responsible for acts carried out by KFOR or UNMIK which had the mandate to detain (the Saramati case) and to de- mine (the Behrami case) since both were international structures established by, and answerable to, the UNSC ? or on the contrary KFOR and UNMIK engaged the responsibility of States to which the personnel belonged, and that had seconded such personnel to KFOR and UNMIK and ultimately to the UN? ECHR concluded that the actions (Saramati case) and inactions (Behrami case) had to be attributed to the UNSC → in principle the UN responsibility is involved Critics to this case

IIs may breach obligations under international law IIs may breach obligations under international law. Insofar as they enjoy a legal personality, a principle of IL lays down that they bear responsibility for an internationally wrongful act PCIJ in the Factory at Chorzów case (1928) , p. 29, stated: “It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation”; i.e. the author of unlawful behaviour is responsible under IL International personality as a precondition for IIs responsibility

Article 3 of the IL Commission project on the responsibility of IO restates a general principle of IL (2011) confirms that: “Every international wrongful act of an international organizations entails the international responsibility of that organization”→ identical wording of the ILC draft on State responsibility (2001) This principle stems from a well-established practice. For instance, in advisory opinion of the ICJ on Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, the Court said: “[...] the Court wishes to point out that the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity. The United Nations may be required to bear responsibility for the damage arising from such acts.” (ICJ Reports 1999, para. 66)

IL on responsibility is founded on a basic distinction between : - primary rules of international law (laying down obligations), and - secondary rules of IL (setting out conditions and consequences for the responsible II) Only secondary rules are considered by the IIs responsibility for wrongful activity. Reference can be made to ILC draft articles on IO responsibility as a legal guidance presumptively reflecting general rules of international law (this text has not become into force)

DUALISTIC concept of internationally wrongful act 1) subjective element: the conduct (consisting both in acts or omissions) is attributable to the II under international law 2) objective element: the relevant conduct constitutes a breach of an international obligation upon that II (as provided for in primary rules) → violations of domestic law of MS are irrelevant with respect to IIs responsibility

→ violations of the constituent treaty of a given Institution (through its organs activity) may entail II responsibility if the treaty is part of international law for the relations between the I and its members However, the constituent treaty of an II may provide for a special regime – e.g. the EU Treaty rules covering the responsibility of the EU vis-à-vis MS and individuals Article 340, second para. :” In the case of non-contractual liability, the Union shall, in accordance with the general principle common to the laws of the member States, make good any damage caused by institutions or by its servants in the performance of their duties”

First (subjective) element – the attribution of conduct to an II A) Conducts of an organ or agent of an II in the performance of their functions is attributed to the same II, whatever the position the organ or agent holds within it - In its advisory opinion on Reparation for injuries suffered in the service of the United Nations, the ICJ noted that the question raised by the General Assembly concerned the capacity of the UN to bring a claim in case of injury caused to one of its agents. In this case the ICJ understood “… the word ‘agent’ in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions – in short, any person through whom it acts.” (I.C.J. Reports 1949, p. 177) → in principle there is no difference between an organ and an agent

- More recently, in its advisory opinion on Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, the Court noted that in case of: “[...] damages incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity ... [t]he United Nations may be required to bear responsibility for the damage arising from such acts.” (I.C.J. Reports 1999, pp. 88–89, para. 66) As a result, IIs bear responsibility not only for officials activity, but also for persons acting for them on the basis of of functions actually conferred to them.

It is so even for ultra vires conducts, i. e It is so even for ultra vires conducts, i.e. when the organ exceeds its authority or contravenes instructions (article 8 ILC draft 2011) in its advisory opinion on Certain expenses of the United Nations, ICJ stated: “If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national or international law contemplate cases in which the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent.” (ICJ Reports 1962, p. 168)

B) Conduct of organs of States placed at disposal of an II - the case of military troops seconded to the UN for peace keeping operations (while states retain disciplinary powers and criminal jurisdiction over their troops) - their conduct is attributed to the II if it exercises “effective control over that conduct” (article 7 of the ILC draft 2011). ILC claims that the principle of effective control reflects the current practice - Yet recent practice of the UN relating to peacekeeping forces seems to adopt a formal normative paradigm: acting as an organ. So UN assumes that in principle it has exclusive control of national contingents. Indeed, the UN Legal Counsel has stated: “As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation.” (Letter of 3 February 2004 by the United Nations Legal Counsel to the Director of the Codification Division, A/CN.4/545, sect. II.G.)

- Moreover, the ECtHR case law seems ambiguous: a) in Behrami and Behrami v. France and Saramati v. France, Germany and Norway, the Court noted that the presence of KFOR in Kosovo was based on a resolution adopted by the Security Council and concluded that “KFOR was exercising lawfully delegated Chapter VII powers of the UNSC so that the impugned action was, in principle, ‘attributable’ to the UN”, para. 141 b) In Al-Jedda v. United Kingdom, the Court noted that “the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of foreign troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations” (para. 56). The Court concluded that the applicant’s detention had to be attributed to UK.

C) Conduct acknowledged and adopted by an II as its own (article 9 ILC draft 2011): two criteria Acknowledgment of responsibility: in a statement made on behalf of the European Community in the oral pleading before a WTO panel in the case European Communities – Customs Classification of Certain Computer Equipment, the EU declared that it was “ready to assume the entire international responsibility for all measures in the area of tariff concessions, whether the measure complained about has been taken at the EC level or at the level of Member States”. Acknowledgment of conduct: in a decision of Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Dragan Nikolić, the question was raised whether the arrest of the accused was attributable to the Stabilization Force (SFOR). The Court concluded that SFOR’s conduct did not “amount to an ‘adoption’ or ‘acknowledgement’ of the illegal conduct ‘as their own’”, para 106

Second (objective) element: the wrongful act according to a rule of primary law - the existence of a breach of an international obligation → the II conduct is in violation of an international law obligation as laid down by customary law or by a treaty or a general principle (i.e. primary rules of IL) According to principle of general international law, the infringed obligation must exist at the time the act or omission occurs (tempus regit actum). This rule applies for breaches of international obligations having a continuing or not having a continuing character. If the breach has a continuing character, the violation extends over the entire period during which the act continues

Situations of co-responsibility between an II and its MS 1) Aid or assistance given by an II to a State in breaching IL An example of practice of aid or assistance concerning an international organization is provided by an internal document issued on 12 October 2009 by the UN Legal Counsel. This concerned the support given by the UN Mission in the Democratic Republic of the Congo (MONUC) to the Forces armées de la République démocratique du Congo (FARDC), and the risk, to which an internal memorandum had referred, of violations by the latter forces of international humanitarian law, human rights law and refugee law. The Legal Counsel wrote: “If MONUC has reason to believe that FARDC units involved in an operation are violating one or the other of those bodies of law and if, despite MONUC’s intercession with the FARDC and with the Government of the DRC, MONUC has reason to believe that such violations are still being committed, then MONUC may not lawfully continue to support that operation, but must cease its participation in it completely. [...] MONUC may not lawfully provide logistic or “service” support to any FARDC operation if it has reason to believe that the FARDC units involved are violating any of those bodies of law. [...] This follows directly from the Organization’s obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law.”

2) Direction and control exercised over the violation by the II – it covers the situation → article 15 ILC draft 2011: international responsibility arise when an II “directs and controls a State or another organization in the commission of an internationally wrongful act”. This principle could be applied in the relations between an II and its MS as long as the concept of “direction and control” can be extended so as to encompass cases in which the II takes a decision binding its members → as a result MS, individually concerned, bear no responsibility for a wrongful act

Legal consequences of responsibility General principles of IL The general principle of the consequences of the commission of an internationally wrongful act was stated by PCIJ in the Factory at Chorzów case: “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself”. 1) full reparation which may assume different forms: restitution, compensation and compensation, either singly or in combination 2) continuing duty to perform the obligation breached 3) obligation to cease the act, if it is continuing 4) obligation to offer appropriate assurances and guarantees of non-repetition, if necessary

Concurrent responsibility Responsibility of both IIs and MS A) If both are responsible for the same wrongful act, they jointly face the legal consequences → example of the so-called mixed agreements under EU law whereby there is no apportionment of the responsibility B) Responsibility can be subsidiary as regards that of MS for wrongful acts committed by the II to which they participate → according to article 62 ILC draft 2011 MS are presumed to be subsidiary liable. However, this responsibility arises only if MS have accepted it or have led the injured party to rely on it Thus, in principle IIs having a separate legal personality are the only subjects that bear international responsibility for their international wrongful acts Practice excludes a complementary responsibility for MS even in disputes concerning private contracts concluded by IIs

Responsibility of IIs vis-à-vis individuals The International Tin Council case, an II with 32 members (buy and sell tin on the world market in order to keep prices stable). In 1985 it run out of money, and in the UK its debt was held to be several hundred million pounds House of Lords held: - the ITC was a separate legal personality distinct of its members - the contracts entered into by the ITC did not involve any liability on MS MS liability for those contracts could not be enforced by English judges

Consequences for serious breach of ius cogens Should a subject of IL commit a serious breach of peremptory norms, IIs are involved in reacting to the wrongdoer. IIs have the duty to cooperate with other entities : - to bring to an end through lawful means that breach - to refuse to recognize as lawful the situation created by that breach (article 42 ILC Draft 2011) Practice of States during the ILC preparatory works confirms these principle Should an I commit a serious breach of peremptory norms - the Organization for Prohibition of Chemical Weapons stated: “States should definitely be under an obligation to cooperate to bring such a breach to an end because in the case when an international organization acts in a breach of a peremptory norm of IL, its position is not much different from that of State”