‘Member Responsibility’ and the ILC Articles on the Responsibility of International Organizations: Some Observations

Abstract

This paper briefly explains the idea of "member responsibility" for acts of an international organization, moves on to lay out the International Law Commission 2011 Articles on Responsibility of International Organizations framework on this issue, and then offers some critical observations on the ILC treatment of the topic. The 2011 articles framework on this issue can be considered to have four aspects, short-handed roughly as "independent personality", "additional acts approach", "no member responsibility", and ‘remedy-enabling obligations pursuant to the rules of the international organization’. The consolation prizes that the ILC has given to the world are article 61 on prevention of circumvention of member States’ obligations and article 40 on ensuring the fulfillment of the obligation to make reparation. Neither represents a substantial victory for member responsibility, but each can be considered a half-step forward in that direction. As to article 61, the intention to circumvent obligations may be too high a threshold and may not cover the original establishment of an international organization and thus may not completely solve the ‘beautiful for some but ugly for others’ problem, but at least it would catch the overtly villainous States, if any. As to article 40, the ‘take all appropriate measures’ obligation to enable remedies on the part of the international organization as well as its member States may not rise to the level of ‘hard obligations’ because under article 40 these obligations are supposed to be pursuant to the rules of the organization which may reject such obligations. The saving grace is probably the suggestion made in the commentary that an implied obligation to enable remedies should be read into silent or unclear rules of the organization. This can be a powerful idea because silent or unclear rules of the organizations are the norm, other formulations the exception. This ‘rule of interpretation’ may nudge the law into the direction of providing for remedies where they are due.