7 - Legal Status, Responsibility

Question 1

What does “legal personality” of IOs mean? Important? (2)

Answer 1

1/ Lauterpacht : “in itself, attribution of personality to an entity means nothing”

2/ Sands & Klein : “legal personality now considered most important constitutive element of IOs”

=> distinguish btwn status/personality and competence

Question 2

How is the legal personality as IOs often described? Why? (2)

Answer 2

1/ functional personality/functional nature

2/ bc powers that fill/give substance to IOs personality are limited and determined by its purposes and functions

Question 3

What was a question raised at the UNCIO negotiations in 1945? (4)

Answer 3

1/ should UN Charter include an article on juridical status UN?

2/ it was preferred to refer to juridical rather than international personality or status so as to distinguish from status enjoyed by States

3/ Article 104 was adopted but provides only half of the solution as it covers national legal personality

4/ clarification in Reparation for Injuries AO

Question 4

Background Reparation for Injuries AO? (3)

Answer 4

1/ no UN Charter provision on international legal personality UN

2/ assassination UN mediator Count Bernadotte

3/ question whether UN can bring a claim

Question 5

What did ICJ hold in Reparation AO? (6)

Answer 5

1/ UN is an international legal person

2/ addressed issue as a preliminary question (personality necessary to bring claims)

3/ analyzed the UN Charter (organs, special tasks)

4/ int. legal personality considered necessary to achieve ends of UN

5/ underlined this does not equal saying UN is a State or a super-State

6/ practice confirmed this character of UN

Question 6

What is a difference of period before/after 1990s? (2)

Answer 6

1/ before : int. legal personality usually implied

2/ after : more often explicit attribution of int. legal personality

Question 7

What are 2 problem cases regarding attribution of int. legal personality?

Answer 7

1/ EU

2/ OSCE

Question 8

Why was EU a problem case?

Answer 8

No explicit provision on legal personality EU, established by 1992 Maastricht Treaty

Question 9

Differences UN Charter / TEU? (3)

Answer 9

1/ no provision on national legal personality in TEU

2/ already 3 European Communities existed & had int. legal personality

3/ MS seem to implicitly have accepted int. legal personality more for UN than for EU

Question 10

Similarities UN Charter / TEU? (3)

Answer 10

1/ no explicit provision on int. legal personality

2/ highly political

3/ practice can be more important than politics (EU became party to treaties after 2001)

Question 11

How was problem EU & int. legal personality solved?

Answer 11

Amendment to TEU in 2007 by Lisbon Treaty => Art. 47 recognizes legal personality EU

Question 12

Why is OSCE a problem case? (4)

Answer 12

1/ transformation from conference to an organisation

2/ but explicit agreement it would have no legal personality

3/ difficulties occurred in practice, which led to negotiations

4/ in 2017, OSCE concluded 2 treaties

=> how to solve this?

Question 13

What does it mean to be a legal person? (2)

Answer 13

1/ capacity to bear rights and obligations

2/ within relevant legal system

Question 14

What happens when a legal person violates an obligation?

Answer 14

responsibility rules of relevant legal system are triggered (secondary rules)

Question 15

History responsibility of IOs? (5)

Answer 15

1/ responsibility for States accepted for a long time in IL (see PCIJ, Charzow Factory, 1927)

2/ in 1955, ILC started work on codification of State responsibility

3/ ARSIWA completed in 2001, but do not cover responsibility of IOs

4/ in 2001, UNGA requests ILC to begin work on topic responsibility IOs

5/ ARIO adopted in 2011 (UNGA takes note)

Question 16

Why did UNGA suddenly request preparation of rules on responsibility of IOs? (3)

Answer 16

1/ IOs carry out many more operations&activities in many more areas than before => things can go wrong, there can be victims

2/ emerging general climate of accountability and more critical attitude towards IOs

3/ natural opportunity when ILC completed ARSIWA

Question 17

Characteristics ARIO? (3)

Answer 17

1/ articles, not a binding treaty

2/ follow structure of ARSIWA

3/ but differences regarding relationship IO-members

Question 18

Key provision ARIO?

Answer 18

Article 4 on elements of an internationally wrongful act of an IO

Question 19

When is there an internationally wrongful act of an IO? (3)

Answer 19

1/ action or omission

2/ attributable to IO under IL

3/ breach of int. obligation IO

Question 20

What is a key question regarding responsibility IOs? (2)

Answer 20

1/ are IOs bound by IL? (example of UNSC in lecture)

2/ nowadays, generally admitted IOs are bound by IL bc they are int. legal persons

Question 21

Why is it important to determine whether a given act is attributable to an IO? (3)

Answer 21

1/ important for injured party

2/ counter passing the buck problem

3/ MS may offer a remedy, which may be harder to do for IOs

Question 22

Who is responsible for wrongdoing of IOs?

Answer 22

In principle the IO (Art. 3 ARIO)

Question 23

Why are IOs and not their MS responsible for wrongdoings? (3)

Answer 23

1/ IOs have an independent personality, MS must not be allowed to intervene and paralyse IOs

2/ otherwise, there could be less willingness of MS to contribute to IO

3/ fragmentation (remedies in some MS but not in others)

Question 24

What criticism is often addressed to ARIO and how to counter it? (5)

Answer 24

1/ criticism = ARIO is a copy-paste of ARSIWA

2/ ARIO are result of an analysis of available material

3/ although similar, not blindly copied and some new rules

4/ criticism = based on limited practice, too theoretical, ‘progressive dvpt of law’

5/ advantageous bc they now provide courts with a legal framework

Question 25

Why was no provision included in the UN Charter on the int'l legal personality of UN? (2)

Answer 25

1) too politically controversial at the time | 2) Report from US Delegation at UNCIO: no provision bc anxious to avoid implication that UN is superstate

Question 26

What factors made ICJ find in Reparations AO that UN had Int'l legal personality? (6)

Answer 26

1) organs created with own powers 2) defined IO-MS relationship 3) organs w/ ability to make (binding) decisions 4) UN given P&I in territory of MS 5) UN may make agreements with MS 6) confirmed by practice (conclusion of conventions by UN)

Question 27

What is the underlying rationale of the Reparations AO? (2)

Answer 27

1) intention to bestow int'l legal personality | 2) can be implied from functions and rights conferred on IO by MS

Question 28

Why did IOs often leave int'l legal personality to be implied pre-1990, and what changed? (2)

Answer 28

1) they could simply rely on Reparations | 2) Not clear what changed

Question 29

What are examples of IOs with/without a provision on int'l legal personality? (2)

Answer 29

1) with: ICC; ICMP | 2) without: Agreement Relating to Establishment of FABEC (expressly exclude int'l legal personality)

Question 30

How may an IO be internationally responsible for inducing action by its MS? (3)

Answer 30

1) Art 17 ARIO 2) by making binding decisions to make MS commit acts which would be unlawful if committed by IO 3) by authorizing MS to commit acts wrongful if committed by IO (and they are in fact committed BC of the authorization)

Question 31

How may a MS be internationally responsible for acts committed by an IO? (3)

Answer 31

1) Art 61 ARIO 2) taking advantage of IOs competence in a field in which the MS has an obligation 3) AND the state causes the IO to commit an act which would hav been wrongful if committed by the State