CYIL 2015

180

MARTIN FAIX

CYIL 6 ȍ2015Ȏ

The responsibility of international organisations under international law for

wrongful acts is widely accepted, as Article 3 of the Draft Articles on the Responsibility

of International Organizations (DARIO) also suggests. The general principle stated

in Article 3 DARIO that

“Every internationally wrongful act of an international

organization entails the international responsibility of that organization”

applies,

according to the ILC, to

“whichever entity commits an internationally wrongful act”

Hence there is no doubt about the responsibility of international organisations when

the conduct (an act or omission) is attributable to an international organisation and

constitutes a breach of its international (human rights) obligations.

If international organisations are nowadays considered to have (human rights)

obligations and are considered to be able to violate them, there is also no reason

why they should not be able to bear responsibility with all its consequences. In

other words, it would be hardly acceptable to argue that the legal personality of

international organisations includes the ability to bear international human rights

obligations and to breach them, but would not entail the obligation to provide

remedy for consequences resulting out of such breach – regardless of which entity’s

rights have been violated. That is not to say that the international legal responsibilities

of international organisations are the same as those of States, but the

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principle, as one of the fundamental principles of international responsibility, can, in

my opinion, hardly be declared as applicable only in interstate relations.

The acceptance of the responsibility and consequently of the duty of international

organisations to provide reparation in international law contributes in general to

the adherence and more effective enforcement of international law. Moreover, the

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principle is regarded as a general principle of international law,

and therefore its application cannot – and should not – be restricted to States,

but is conferrable on all subjects of international law, among which international

organisations currently certainly can be counted.

Having established the right to reparation as a general secondary right based on

international responsibility, triggered by violations of primary rights, the individual,

as the other entity participating in the legal relation created on the secondary level,

should be investigated. The question is whether it is possible to consider individuals

Draft articles on the responsibility of international organizations, with commentaries

, adopted by the

International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly

as a part of the Commission’s report covering the work of that session (A/66/10), p. 13, para. 1;

cf.

SCHRÖDER, Meinhard. Verantwortlichkeit, Völkerstrafrecht, Streitbeilegung und Sanktionen.

op. cit.

p. 588 paras. 9-10.

McCorquodale

considers the international legal responsibility of international organisations for

violations of international human rights law as still “contentious”; see: McCORQUODALE, Robert.

International Organisation and International Human Rights Law: One Giant Leap for Humankind

In: KAIKOBAD, K.H., BOHLANDER, M. (eds.).

International Law and Power: Perspectives on Legal

Order and Justice

. BRIL, 2009, pp. 141-162.