liability of member states for acts of international organizations

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VOLUME 48, NUMBER 2, SUMMER 2007

Liability of Member States for Acts ofInternational Organizations: Reconsidering the

Policy Objections

Andrew Stumer*

INTRODUCTION

Over the past sixty years, there has been an exponential growth in thenumber, scope, and influence of international organizations. This growth hasgreatly expanded the capacity of international organizations to commit actsthat detrimentally affect the interests of States or individuals. As a result, ithas become necessary to decide who is responsible, and liable to providecompensation, when an organization breaches international law. Reflectingthis concern, the International Law Commission (“ILC”), in response to arequest by the United Nations General Assembly,1 has begun drafting arti-cles to codify the rules on the responsibility of international organizations.2

One of the most difficult issues under consideration by the ILC in this con-text is whether Member States bear secondary or concurrent liability to thirdparties for the acts of an international organization.3 The terms secondaryliability and concurrent liability are used throughout this Note to refer tothe attribution of responsibility to a State merely by virtue of its member-ship in an international organization. These forms of liability stand in con-

* D.Phil. Candidate, Magdalen College, University of Oxford.1. G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001).2. Int’l Law Comm’n [ILC], Drafting Comm., Responsibility of International Organizations: Titles and

Texts of Draft Articles 25-30 Adopted by the Drafting Committee on 19 July 2006, U.N. Doc. A/CN.4/L.687/Add.1 (July 19, 2006) [hereinafter ILC July 19 Report]; ILC, Drafting Comm., Responsibility of Interna-tional Organizations: Titles and Texts of the Draft Articles Adopted by the Drafting Committee on 31 May 2006,U.N. Doc. A/CN.4/L.687 (May 31, 2006); ILC, Drafting Comm., Responsibility of International Organiza-tions: Titles and Texts of the Draft Articles Adopted by the Drafting Committee on 27 May 2005, U.N. Doc. A/CN.4/L.666/Rev1 (June 1, 2005); ILC, Drafting Comm., Responsibility of International Organizations: Titlesand Texts of the Draft Articles 4, 5, 6 and 7 Adopted by the Drafting Committee, U.N. Doc. A/CN.4/L.648(May 27, 2004); ILC, Drafting Comm., Responsibility of International Organizations: Titles and Texts of theDraft Articles 1, 2 and 3 Adopted by the Drafting Committee, U.N. Doc. A/CN.4/L.632 (June 4, 2003). TheInternational Law Association has also produced a report on accountability of international organizations.International Law Association [ILA], Accountability of International Organisations, Report of the Seventy-First Conference, Berlin, 164 (2004) [hereinafter ILA Report].

3. See ILC, Special Rapporteur, Second Report on Responsibility of International Organizations, ¶ 6, U.N.Doc. A/CN.4/541 (Apr. 2, 2004) (prepared by Giorgio Gaja) [hereinafter Second Report of Special Rap-porteur Gaja].


554 Harvard International Law Journal / Vol. 48

trast to the liability a State may incur for its own acts that breachinternational law.

In July 2006, the Drafting Committee of the ILC Working Group onResponsibility of International Organizations adopted draft articles dealingwith the liability of Member States.4 These draft articles outline varioussituations in which the conduct of a Member State can cause it to becomeliable for the act of an international organization. However, the draft articlesdo not support the imposition of liability on Member States by virtue ofmembership alone. While the Working Group considered a wide range ofmatters in reaching this conclusion, some emphasis was placed on the policyconsideration that secondary or concurrent liability would interfere with theautonomy of international organizations by encouraging interference fromthe Member States.5

This policy consideration has been referred to so frequently in the litera-ture on secondary and concurrent liability that it has obtained almost axio-matic status.6 It is often placed alongside a related concern that secondary orconcurrent liability would undermine the separate personality of interna-tional organizations. The purpose of this Note is to examine whether thesepolicy considerations provide a sound basis for denying secondary or concur-rent liability. Part I of this Note clarifies the meaning of secondary andconcurrent liability and distinguishes those concepts from other forms ofliability a State may incur for the acts of an international organization. PartII outlines the views of the commentators who have contended that secon-dary or concurrent liability would be detrimental to the separate personalityand independence of international organizations. Part III demonstrates thatthe effect of secondary or concurrent liability of Member States on the per-sonality or independence of international organizations has been exagger-ated. It does not follow from this conclusion that a general principle ofMember State liability must be recognized under international law. How-ever, unsubstantiated claims about a detrimental impact on the personalityor independence of international organizations should not be permitted toinfluence the ILC deliberations on the legal question of secondary or concur-rent liability.

4. ILC July 19 Report, supra note 2. R5. ILC, Special Rapporteur, Fourth Report on Responsibility of International Organizations, Addendum, ¶

94, U.N. Doc. A/CN.4/564/Add.2 (Apr. 20, 2006) (prepared by Giorgio Gaja, Special Rapporteur) [here-inafter Fourth Report of Special Rapporteur Gaja].

6. See infra text accompanying notes 44-53.


2007 / Liability of Member States 555

I. DEFINING AND DISTINGUISHING SECONDARY AND

CONCURRENT LIABILITY

Since the decision of the International Court of Justice (“ICJ”) in theReparation case,7 it has come to be accepted that an international organiza-tion is capable of possessing personality under international law, separatefrom the personality of the organization’s Member States.8 One of the conse-quences of separate personality is that an international organization may beheld responsible for its acts under international law.9 However, the fact thatan organization may be held responsible for its acts does not automaticallypreclude the possibility that the Member States could bear liability for thosesame acts.10

The question of the secondary or concurrent liability of Member Stateswas excluded from the scope of the ILC Articles on State Responsibility.Article 57 states that the Articles “are without prejudice to any question ofthe responsibility. . . of any State for the conduct of an international organi-zation.”11 This topic was considered to raise “controversial substantive ques-tions as to the functioning of international organizations and the relationsbetween their members.”12 The ILC, therefore, postponed discussion of thistopic until May 2002 when work began on Draft Articles on the Responsi-bility of International Organizations.13 The Working Group described thequestion of whether Member States may be held responsible for the acts ofan international organization as “probably the most contentious issue of thetopic under consideration.”14

The Special Rapporteur addressed the question of State responsibility forthe acts of an international organization in his Fourth Report,15 which

7. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949I.C.J. 174 (Apr. 11).

8. C.F. AMERASINGHE, PRINCIPLES OF THE INSTITUTIONAL LAW OF INTERNATIONAL ORGANIZATIONS

68 (2d ed. 2005); JAN KLABBERS, AN INTRODUCTION TO INTERNATIONAL INSTITUTIONAL LAW 57(2002); PHILIPPE SANDS & PIERRE KLEIN, BOWETT’S LAW OF INTERNATIONAL INSTITUTIONS 469 (5th ed.2001); HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW 990 (4th ed.2003); N. D. WHITE, THE LAW OF INTERNATIONAL ORGANISATIONS 27 (1996).

9. AMERASINGHE, supra note 8, at 399; KLABBERS, supra note 8, at 306; SANDS & KLEIN, supra note 8, Rat 513; SCHERMERS & BLOKKER, supra note 8, at 1006. R

10. Second Report of Special Rapporteur Gaja, supra note 3, ¶¶ 6–7; Inst. of Int’l Law, The Legal RConsequences for Member States of the Non-Fulfilment by International Organizations of Their Obligations TowardsThird Parties, 66-I Y.B. INST. INT’L LAW 249, 257 (1995) (Higgins, Preliminary Report).

11. The Articles on Responsibility of States for Internationally Wrongful Acts were adopted by theILC in 2001. See ILC, Report on the Work of Its Fifty-Third Session, ¶ 76, U.N. Doc. A/56/10 (Apr. 23 –June 1 and July 2 – Aug. 10, 2001) [hereinafter ILC Articles on State Responsibility].

12. JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY:INTRODUCTION, TEXT, AND COMMENTARIES 311 (2002).

13. ILC, Report on the Work of Its Fifty-Fourth Session, ¶ 462, U.N. Doc. A/57/10 (Apr. 29 – June 7 andJuly 22 – Aug. 16, 2002).

14. ILC, Working Group, Report on the Responsibility of International Organizations, ¶ 17, U.N. Doc. A/CN.4/L.622 (June 6, 2002); see also Second Report of Special Rapporteur Gaja, supra note 3, ¶ 6. R

15. Fourth Report of Special Rapporteur Gaja, supra note 5. R



culminated in the adoption by the Drafting Committee, in July 2006, ofDraft Articles 25–30.16 In these draft articles, two distinct categories ofanalysis emerge by which a Member State could be held responsible for actsundertaken by or involving an international organization. The first categoryis where the act of the organization is attributable to a Member State as aresult of the general rules on attribution under international law. The secondcategory is where the Member State has itself committed a wrongful act, inparallel to the act of the organization. There is nothing in the draft articlessupporting a general principle of secondary or concurrent liability, and itsabsence may be taken as an implied assertion that no such principle exists.17

The following discussion provides working definitions of secondary and con-current liability and establishes the clear distinction between those forms ofliability and the two categories recognized by the ILC.

A. Secondary and Concurrent Liability

In contrast to the two categories of liability recognized by the ILC, secon-dary and concurrent liability are not derived from any specific conduct of theState. Both forms of liability, if they exist under international law, requireonly that the State is a member of the organization. Member States, it issaid, which benefit from the activities of the organization ought also to bearthe burden of accounting to third parties for losses caused by a wrongfulact.18 In the case of secondary liability, a third party with a legal claimagainst an international organization would first be required to pursue itsremedy against the organization. Only if the organization defaulted in ful-fillment of its obligation could the third party enforce its rights against anyor all of the Member States. Concurrent liability would permit an aggrievedthird party to pursue a remedy, at its election, against either the organiza-tion or the Member States.19 The two forms of responsibility, while concep-

16. See ILC July 19 Report, supra note 2. R17. Draft Article 29(1) proposed by the Special Rapporteur would have made this point more explicit

by stating: “Except as provided in the preceding articles of this chapter, a State that is a member of aninternational organization is not responsible for an internationally wrongful act of that organizationunless: (a) It has accepted with regard to the injured party that it could be held responsible; or (b) It hasled the injured third party to rely on its responsibility.” See Fourth Report of Special Rapporteur Gaja,supra note 5, ¶ 96. R

18. Westland Helicopters Ltd. v. Arab Org. for Industrialization, 80 I.L.R. 595, 613 (ICC Int’l Ct. ofArb. 1982); see also IGNAZ SEIDL-HOHENVELDERN, CORPORATIONS IN AND UNDER INTERNATIONAL LAW

119-20 (1987) [hereinafter SEIDL-HOHENVELDERN (1987)]; Ignaz Seidl-Hohenveldern, Liability of Mem-ber States for Acts or Omissions of an International Organization, in LIBER AMICORUM IBRAHIM F.I. SHIHATA:INTERNATIONAL FINANCE AND DEVELOPMENT LAW 727, 739 (Sabine Schlemmer-Schulte & Ko-YungTung eds., 2001) [hereinafter Seidl-Hohenveldern (2001)].

19. These definitions of secondary and concurrent liability are derived from the formulation in Article2(b) of the draft articles adopted by the Institute of International Law in 1996. The draft articles use theterm “subsidiary” liability rather than secondary liability. Inst. of Int’l Law, The Legal Consequences forMember States of the Non-Fulfillment by International Organizations of Their Obligations Toward Third Parties,66-II Y.B. INST. INT’L L., 445, 446 (1995) (resolution adopted). For a definitional discussion of secondaryand concurrent liability, see MOSHE HIRSCH, THE RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS

TOWARD THIRD PARTIES: SOME BASIC PRINCIPLES 137-39 (1995); KLABBERS, supra note 8, at 311–12. R



tually distinct, share the common characteristic of imposing strict liabilityon Member States for the wrongful conduct of an internationalorganization.20

The issue of the liability of Member States for the acts of an internationalorganization arose in litigation over the North Atlantic Treaty Organization(“NATO”) bombing of the Federal Republic of Yugoslavia (“FRY”) in1999.21 In response to the bombing, the FRY22 brought suit before the ICJagainst ten Member States of NATO alleging that the use of force had beenunlawful. The FRY alleged that the NATO Member States were “jointlyand severally responsible for the actions of the NATO military commandstructure.”23 The case therefore squarely raised the question of whether eachNATO Member State could be held responsible for the actions of the organ-ization, even though each State had not been directly involved in the bomb-ing.24 Canada, which had not participated in the bombing, argued in its oralpleadings that “joint and several liability for acts of an international organi-

20. There is a further layer of complexity concerning whether liability of Member States is joint andseveral or proportionate to the funding contribution of each Member State. In Certain Phosphate Landsin Nauru (Nauru v. Austl.), 1992 I.C.J. 240, 258 (June 26), the ICJ reserved its opinion on whetherliability of States was joint and several. In Maclaine Watson & Co. v. Dep’t of Trade & Indus., [1988] 3All ER 257, 334 (A.C.) (Eng.), Lord Justice Nourse argued in dissent that the liability of the MemberStates of the ITC was joint and several. One scholar warns that it is important not to assume that thedomestic law concepts of joint and several liability can be applied directly in international law. CRAW-

FORD, supra note 12, at 272. The majority of the Institute of International Law was of the view that any Rliability of Member States could only be in proportion to their share in the budget of the organization.Inst. of Int’l Law, supra note 10, at 420; id. at 313 (Shihata commentary); id. at 328 (Zemanek); cf. id. at R359 (Amerasinghe) (stating that secondary or concurrent liability, if it applied, would be joint andseveral).

21. For discussion of the attribution aspect of this case, see Second Report of Special Rapporteur Gaja,supra note 3, ¶¶ 6-7; DAN SAROOSHI, INTERNATIONAL ORGANIZATIONS AND THEIR EXERCISE OF SOVER- REIGN POWERS 47-49 (2005) [hereinafter SAROOSHI (2005)]; Rosalyn Higgins, The Responsibility of StatesMembers for the Defaults of International Organizations: Continuing the Dialogue, in LIBER AMICORUM IBRAHIM

F.I. SHIHATA: INTERNATIONAL FINANCE AND DEVELOPMENT LAW, supra note 18, at 447; Dan Sarooshi, RConferrals by States of Powers on International Organizations: The Case of Agency, 74 BRIT. Y.B INT’L L. 291,326–28 (2003) [hereinafter Sarooshi (2003)]; Torsten Stein, Kosovo and the International Community. TheAttribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of Its Member States?, in KO-

SOVO AND THE INTERNATIONAL COMMUNITY: A LEGAL ASSESSMENT 181, 190–91 (Christian Tomuschated., 2002).

22. On February 4, 2003, the FRY officially changed its name to Serbia and Montenegro. See Legalityof Use of Force, Preliminary Objections (Serb. & Mont. v. Can.) (judgment of Dec. 15, 2004), ¶ 24,available at http://www.icj-cij.org/icjwww/idocket/iyca/iycaframe.htm (last visited Mar. 18, 2007).

23. Oral Pleadings of Serbia and Montenegro, Legality of Use of Force (Serb. & Mont. v. Can.), CR/99/14 (May 10, 1999); see also Oral Pleadings of Serbia and Montenegro, Legality of Use of Force (Serb. &Mont. v. Can.), CR/2004/14, ¶¶ 27-28 (Apr. 21, 2004); Oral Pleadings of Serbia and Montenegro,Legality of Use of Force (Serb. & Mont. v. Can.), CR/2004/23, ¶¶ 10, 12-13 (Apr. 23, 2004). All oralpleadings available at http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm (last visited Mar. 18,2007).

24. The arguments regarding secondary or concurrent liability were based on the assumption that theICJ would find that NATO possessed separate legal personality. At least one commentator has arguedthat NATO does not have separate personality. See Tarcisio Gazzini, NATO Coercive Military Activities inthe Yugoslav Crisis (1992-1999), 12 EUR. J. INT’L L. 391, 425 (2001). Italian courts have held thatNATO has personality in Italian law because it has personality in international law. See Branno v. Minis-try of War, 22 I.L.R. 756 (Ct. of Cassation 1954) (Italy); Mazzanti v. H.A.F.S.E. & Ministry of Def., 22I.L.R. 758 (Trib. of Florence 1954) (Italy).



zation, or for the acts of other States acting within such an organization,cannot be established unless the relevant treaty provides for such liability.”25

In late 2004, the ICJ dismissed the action due to an absence of jurisdictionand the opportunity for authoritative clarification on the issues of liabilitywas lost.26

The case nevertheless illustrates the potential significance of the contro-versy over secondary and concurrent liability. Arguments of this naturecould be made in relation to many other international organizations, includ-ing the United Nations, for example, in the context of its peacekeepingoperations.27 The division of responsibility between an international organi-zation and its Member States may arise where the organization has negli-gently caused death, injury, or destruction of property.28 Questions ofsecondary and concurrent liability may also arise when an international or-ganization incurs debts to third parties in the conduct of its operations.Many international organizations are established for the purpose of con-ducting trade in various commodities, or providing finance. When such anorganization, having incurred debts to third party States or private individu-als, no longer has the financial wherewithal to meet its obligations, thequestion arises whether the debtors may seek recovery from the MemberStates.

The first reported litigation over this question took place in relation tothe Arab Organization for Industrialization (“AOI”), which was establishedin 1975 by the United Arab Emirates, Saudi Arabia, Qatar, and Egypt inorder to develop an arms industry. AOI concluded an agreement with West-land Helicopters Ltd. (“Westland”) to create a joint stock company for thepurpose of manufacturing and selling helicopters developed by Westland.The agreement included a clause requiring the parties to refer any dispute toarbitration. In 1979, following the conclusion of a peace treaty betweenIsrael and Egypt, the Member States announced that AOI would cease tooperate. Westland filed a request for arbitration naming AOI and the four

25. Oral Pleadings of Canada, Legality of Use of Force (Serb. & Mont. v. Can.), CR/99/27, (May 12,1999); see also Oral Pleadings of Portugal, Legality of Use of Force (Serb. & Mont. v. Port.), CR/2004/18,¶¶ 4.3, 4.5-4.6 (Apr. 22, 2004); Oral Pleadings of France, Legality of Use of Force (Serb. & Mont. v.Fr.), CR/2004/12, ¶¶ 49-52 (Apr. 20, 2004); Oral Pleadings of Portugal, Legality of Use of Force (Serb.& Mont. v. Port.), CR/2004/9, ¶ 4.8 (Apr. 19, 2004). All oral pleadings available at http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm (last visited Mar. 18, 2007).

26. Legality of Use of Force, Preliminary Objections (Serb. & Mont. v. Can.), 2004 I.C.J. 429 (Dec.15), available at http://www.icj-cij.org/docket/files/106/8454.pdf.

27. The conduct of U.N. peacekeeping forces has routinely been attributed to the United Nationsrather than the Member States. See The Secretary General, Report of the Secretary-General on the Administra-tive and Budgetary Aspects of the Financing of United Nations Peacekeeping Operations, ¶ 7, delivered to theGeneral Assembly, U.N. Doc. A/51/389 (Sept. 20, 1996). However, the United Nations reserves the rightto seek recovery from a Member State if the damage was caused by gross negligence, willful misconductor conduct entailing international criminal responsibility. See id. ¶ 42; see also ILA REPORT, supra note 2, Rat 190; DEREK W. BOWETT, UNITED NATIONS FORCES—A LEGAL STUDY OF UNITED NATIONS PRACTICE

246-47 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 119(1966).

28. See SCHERMERS & BLOKKER, supra note 8, at 1006 n.86. R



Member States as respondents and claiming £126,000,000 in damages. TheArbitral Tribunal held that while AOI had legal personality,29 the absenceof a provision in its constituent instrument excluding liability of the Mem-ber States meant the States were liable under general principles of law.30

Egypt appealed to the Court of Justice of Geneva, which held that the Arbi-tral Tribunal did not have jurisdiction over the Member States because theyhad not signed the arbitration agreement.31 This ruling was affirmed onappeal by the Federal Supreme Court, which noted that the “total legalindependence” of the AOI precluded the possibility that its acts could beregarded as undertaken on behalf of the Member States.32

Similar issues were litigated in the English Courts following the collapseof the International Tin Council (“ITC”) in 1985.33 The ITC was foundedunder the Sixth International Tin Agreement with the purpose of prevent-ing excessive fluctuations in the world price of tin. The principal mechanismfor regulating prices was the maintenance of a “buffer stock” that was fi-nanced by contributions from Member States and loans from banks. Whenthe buffer stock system ran out of funds, the ITC was left with debts of £900million and its creditors sought, among other forms of relief, to recovermonies owed by the ITC from the Member States.34 Two judges of the HighCourt held that English law governed the dispute and that the separate per-sonality of the ITC protected the Member States from liability.35

29. Westland Helicopters Ltd. v. Arab Org. for Industrialization, 80 I.L.R. 595, 611 (ICC Int’l Ct. ofArb. 1982).

30. Id. at 613.31. Arab Org. for Industrialization v. Westland Helicopters Ltd., 80 I.L.R. 622, 640–41 (Ct. of

Justice of Geneva 1987) (Switz.).32. Westland Helicopters Ltd. v. Arab Org. for Industrialization, 80 I.L.R. 652, 658 (Fed. Sup. Ct.

1988) (Switz.).33. The collapse of the ITC also resulted in litigation in the European Court of Justice and the United

States. See Int’l Tin Council v. Amalgamet Inc., 524 N.Y.S. 2d 971 (Sup. Ct. 1988); Case 241/87,Maclaine Watson & Co. v. Council & Comm’n, 1990 E.C.R. I-1797; Case 19/89, AMT (Tin Recoveries)v. Council and Comm’n, 1989 O.J. (C 62) 7. For academic commentary on the collapse of the ITC, seeIan A. Mallory, Conduct Unbecoming: The Collapse of the International Tin Agreement, 5 AM. U. J. INT’L L. &POL’Y 835 (1990); Eric J. McFadden, The Collapse of Tin: Restructuring a Failed Commodity Agreement, 80AM. J. INT’L L. 811, 815-21 (1986).

34. See Arab Banking Corp. v. Int’l Tin Council, (Q.B. 1986) (Eng.) reprinted in 77 I.L.R. 1 (applica-tion for Mareva order against ITC); Standard Chartered Bank v. Int’l Tin Council, [1987] 1 W.L.R. 641(Q.B.) (Eng.) (application by ITC to set aside writ on grounds of immunity); Re Int’l Tin Council,[1987] Ch. 419 (Eng.) (application to wind up ITC under UK Companies Act 1985 (UK)); MaclaineWatson & Co. v. Int’l Tin Council, [1988] Ch. 1 (Eng.) (application to appoint receiver to ITC);Maclaine Watson & Co. v. Int’l Tin Council (No. 2), [1987] 1 W.L.R. 1711 (Ch.) (Eng.) (application toexamine officer of ITC). For academic commentary on the ITC cases, see Romana Sadurska & C.M.Chinkin, The Collapse of the International Tin Council: A Case of State Responsibility?, 30 VA. J. INT’L L. 845(1990); Philippe Sands, The Tin Council Litigation in the English Courts, 34 NETHERLANDS INT’L L. REV.367 (1987); Ignaz Seidl-Hohenveldern, Piercing the Corporate Veil of International Organizations: The Interna-tional Tin Council Case in the English Court of Appeals, 32 GERMAN Y.B INT’L L. 43 (1989).

35. J.H. Rayner (Mincing Lane) Ltd. v. Dep’t of Trade & Indus., [1987] B.C.L.C. 667, 697 (Q.B)(Eng.). Justice Staughton stated that it was open to question whether legal personality excluded liabilityof Member States under international law. Id. at 689; see also Maclaine Watson & Co. v. Dep’t of Trade &Indus., [1987] B.C.L.C. 707, 713–14 (Ch.) (Millet, J.) (Eng.).



By contrast, in the Court of Appeal, there was extensive discussion ofsecondary and concurrent liability under international law.36 After consider-ing the authorities, Lord Justice Kerr held there was “no clearly settledjurisprudence”37 and that English courts could not legislate to create rules ofliability under international law.38 Lord Justice Ralph Gibson took thestronger view that the separate personality of the ITC excluded the liabilityof the Member States.39 In a dissenting opinion, Lord Justice Nourse arguedthat, in accordance with principles of international law, the Member Stateswere jointly and severally liable.40 The House of Lords41 reverted to the viewthat English law governed the dispute and that the Member States could notbe liable for the acts of an organization that possessed separate personality.42

As to international law, Lord Oliver noted only that the writings of interna-tional jurists did not establish any generally accepted rule regarding secon-dary or concurrent liability.43

The AOI and ITC cases illustrate the lack of consensus among judicialand arbitral bodies in relation to secondary and concurrent liability andhighlight the potential significance of the issues involved. In order to under-stand the scope of the controversy, it is vital to distinguish secondary andconcurrent liability from other forms of liability that a State may incur as aresult of acts involving an international organization. A State must engagein conduct beyond mere membership in order to fall within either of thetwo categories of liability discussed below. By contrast, if secondary or con-current liability were to be recognized as a principle of international law,liability would be imposed in the absence of any additional conduct on thepart of the State.

B. Attribution under Customary International Law

Secondary and concurrent liability were excluded from the scope of theILC Articles on State Responsibility. Nevertheless, the Articles are applica-ble to the situation where the act of an international organization is attribu-table to a State by virtue of the ordinary customary law rules onattribution.44 In preparing Draft Articles on the Responsibility of Interna-tional Organizations, the ILC Drafting Committee considered it useful toinclude provisions expressly dealing with issues of attribution. For the mostpart, the draft articles apply the general rules on attribution to the specific

36. Maclaine Watson & Co. Ltd. v. Dep’t of Trade & Indus., [1988] 3 All E.R. 257 (A.C.) (Eng.).37. Id. at 306.38. Id. at 307.39. Id. at 353.40. Id. at 332-34.41. J.H. Rayner (Mincing Lane) Ltd. v. Dep’t of Trade & Indus., [1990] 2 A.C. 418 (H.L.) (Eng.).42. Id. at 482 (Lord Templeman); id. at 507 (Lord Oliver). Lords Griffith, Keith, and Brandon

concurred.43. Id. at 512-13 (Lord Oliver); see also id. at 480 (Lord Templeman).44. CRAWFORD, supra note 12, at 311. R



situation of acts committed by international organizations. It is notable thatall the forms of liability recognized in the draft articles involve some posi-tive act by the State.

Draft Article 26 assigns responsibility to a State when the State directsand controls the commission of an act by an international organization. Sim-ilarly, Draft Article 27 provides that a State which coerces an internationalorganization will be responsible for the ensuing act. These draft articles givespecific expression to the rule that the conduct of an entity is attributable toa State if the entity was acting on the instructions of, or under the directionor control of, the State in carrying out the conduct.45 In Nicaragua, the ICJheld that this form of attribution required evidence that the State was in arelationship of “effective control” over the third party, to the extent that itdirected the third party in the performance of the allegedly wrongful act.46

Under normal conditions, an international organization does not actunder the direction or control of its Member States since the distinct will ofthe organization is an important criterion of separate personality. Neverthe-less, it is possible to envisage circumstances in which an international organ-ization acts under the direction of a State or group of States.47 For instance,an ad hoc treaty could confer power on an international organization to un-dertake specific tasks on behalf of the Member States. Given that the rela-tionship of Member States to the organization is defined primarily by theconstituent instrument, it is perhaps more likely that such a treaty would beformed between an international organization and a non-Member State.48 Atreaty of this nature would facilitate a limited series of actions by the organi-zation on behalf of the non-Member State. The potential in this scenario foran international organization to act under the direction or control of a non-Member State illustrates that attribution on the basis of direction or controlis not dependent upon the foundational relationship between the organiza-tion and the State. Rather, it depends upon the precise factual circumstancessubsisting at the time of the conduct in question.

Draft Article 29(1)(a) recognizes that a State could be deemed responsiblefor the conduct of an international organization if the State has acceptedresponsibility. This appears to be a specific instance of the customary inter-national law rule that conduct may be attributable to a State if the State

45. ILC Articles on State Responsibility, supra note 11, art. 8. R46. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 65 (June 27); see also id. at

189 (separate opinion of Judge Ago). The Appeals Chamber of the International Criminal Tribunal forthe Former Yugoslavia (“ICTY”) has held that a lesser of degree of control could suffice. Prosecutor v.Tadic, Case No. ICTY-94-1-A, ¶ 117 (July 15, 1999). This divergence has been explained on the basisthat the ICTY was concerned with the degree of control necessary to invoke international humanitarianlaw, rather than the degree of control required for State responsibility. See CRAWFORD, supra note 12, at R112; SAROOSHI (2005), supra note 21, at 39 n.25; Sarooshi (2003), supra note 21, at 316 n.69. The RAppeals Chamber, however, disavowed any such distinction, stating that the two questions “logically”necessitated the same test. Id. ¶ 104.

47. See SAROOSHI (2005), supra note 21, at 49–50; Sarooshi (2003), supra note 21, at 328–29. R48. Id.



acknowledges and adopts the conduct.49 Attribution on this basis requiresnot only acknowledgement of a factual situation, but also that the Stateidentifies itself with the conduct in question and makes it its own.50 Forexample, in the Diplomatic and Consular Staff case, the Islamic Republic ofIran was held responsible for the occupation by revolutionary students of theU.S. embassy in Tehran because it had issued a decree endorsing and approv-ing their acts.51 Under this form of international responsibility, the liabilityof the State would be a result of its conduct in adopting the action or ac-cepting responsibility; it would not result from the mere membership of theState in the organization.

Another relevant form of attribution, not mentioned in the ILC DraftArticles, may be found by analogy to the principle that the conduct of anorgan of one State, placed at the disposal of a second State and exercisingelements of the second State’s governmental authority, is attributable to thesecond State.52 It might be argued by extension that the conduct of an organof an international organization placed at the disposal of a State and exercis-ing elements of the State’s governmental authority would be attributable tothe State. However, it is not certain that this result would follow.53 If it did,the attribution would flow from the agreement, express or implied, betweenthe State and the organization for the use by the State of the organ placed atits disposal. The liability of the State would be dependent upon its own actin the use of the organ placed at its disposal, and membership in the organi-zation would only be relevant to the extent that it provided factual back-ground in establishing that the organ was placed at the State’s disposal.

C. Wrongful Act of the State

The ILC Articles on State Responsibility recognize that a State can beresponsible if it “aids or assists another State in the commission of an inter-nationally wrongful act.”54 Similarly, Draft Article 25 of the ILC Draft Arti-cles on Responsibility of International Organizations provides that a Statewhich aids or assists an international organization in the commission of aninternationally wrongful act is responsible for doing so. It is uncontroversialthat when a State commits an internationally wrongful act in conjunctionwith an international organization, or lends assistance to such an act, the

49. ILC Articles on State Responsibility, supra note 11, art. 11. R50. CRAWFORD, supra note 12, at 123. R51. U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 35 (May 24).52. ILC Articles on State Responsibility, supra note 11, art. 6. R53. The responsibility of a State for the conduct of an organ of an international organization placed at

the disposal of the State is excluded from the scope of the ILC Articles on State Responsibility by Article57. CRAWFORD, supra note 12, at 105. For further discussion of this question, see id. at 310 n.877. R

54. ILC Articles on State Responsibility, supra note 11, art. 16. R



State may be held liable for its own participation in the conduct.55 In such acase, the responsibility of the State is not for the act of the internationalorganization but for its own act.

Further, Draft Article 28 provides that a State will bear internationalresponsibility if it attempts to circumvent an obligation by providing com-petence to an international organization with respect to that obligation.States that transfer competences to an international organization are under aduty of “due diligence” to ensure that the transfer does not amount toavoidance by the State of its obligations under international law.56 For ex-ample, in Matthews v United Kingdom,57 it was alleged before the EuropeanCourt of Human Rights that the United Kingdom had breached its obliga-tion to allow free expression in the choice of the legislature by failing toensure that citizens of Gibraltar could vote in the elections for the EuropeanParliament. The United Kingdom argued that the exclusion of Gibraltarwas a consequence of a decision taken by the Council of the European Com-munity and that the decision could not be imputed to any Member State.58

The Court found against the United Kingdom, holding that when compe-tences are transferred to an international organization, the State continues tobe responsible for securing rights protected under the ECHR.59 In such acase, the responsibility of the Member State is, strictly speaking, not for theact of the international organization, but for the failure to ensure that thetransfer of power to the organization was consistent with the State’s interna-tional obligations.60

Finally, Draft Article 29(1)(b) states that a Member State of an interna-tional organization is responsible for an internationally wrongful act of theorganization if it has led the injured party to rely on its responsibility. Theform of liability envisaged by Draft Article 29(1)(b) seems to come withinthe principle of estoppel, or venire contra factum proprium.61 The Fourth Re-port of Special Rapporteur Gaja states that only those Member States whoseconduct caused reliance on the part of the injured party would be liable.62

An unresolved question in this area is whether a provision in the constituent

55. ILC, Special Rapporteur, First Report on Responsibility of International Organizations, ¶ 33, U.N. Doc.A/CN.4/532 (Mar. 26, 2003) (prepared by Giorgio Gaja) [hereinafter First Report of Special RapporteurGaja]; SANDS & KLEIN, supra note 8, at 524. R

56. SANDS & KLEIN, supra note 8, at 524–25. R57. Matthews v. U.K., 1999-I Eur. Ct. H.R. 253.58. Id. at 264-65.59. Id. at 265; see also Waite and Kennedy v. Germany, 1999-I Eur. Ct. H.R. 393, 410.60. ILA REPORT, supra note 2, at 186-87; SANDS & KLEIN, supra note 8, at 525. The division of R

responsibility between the E.C. and its Member States raises some unique issues that will not be furtheraddressed in this Note. For further discussion, see Pieter J. Kuijper & Esa Paasivirta, Further ExploringInternational Responsibility: The European Community and the ILC’s Project on Responsibility of InternationalOrganizations, 1 INT’L ORG. L. REV. 111 (2004).

61. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 615-16 (6th ed. 2003); DerekW. Bowett, Estoppel Before International Tribunals and its Relation to Acquiescence, 33 BRIT. Y.B. INT’L L.176 (1957).

62. Fourth Report of Special Rapporteur Gaja, supra note 5, ¶ 93. R



instrument stating that Member States would be liable for the debts of theorganization could be relied upon by a third party. Similarly, it is unclearwhether a provision stating that the Member States are not so liable wouldbe effective in defeating an allegation of responsibility founded on DraftArticle 29(1)(b). In any case, liability of this nature would not be imposedmerely by virtue of membership in the organization; the relevant factswould be constituted by the conduct of the Member State alleged to haveinduced reliance by a third party.

In each form of Member State liability envisaged by the ILC, there issome conduct on the part of the State which justifies the imposition of lia-bility. In contrast, secondary or concurrent liability would require no con-duct on the part of the State other than the act of acceding to membershipin the organization. On principle, it is difficult to justify imposing liabilityon a State for conduct in which it had no direct involvement. This is a soundreason for rejecting a general principle of secondary or concurrent liability.However, international lawyers have introduced the further concern that sec-ondary or concurrent liability would jeopardize the separate personality andindependence of international organizations. The following section showshow commentators have these policy concerns. Part III explains why theseconcerns are exaggerated and should not form part of the reasoning processof the ILC while it is codifying the law on liability of internationalorganizations.

II. CONCERNS OVER PERSONALITY AND INDEPENDENCE OF

INTERNATIONAL ORGANIZATIONS

Since 1996, three international legal bodies have addressed the questionof secondary or concurrent liability of Member States. Beginning with theInstitute of International Law, each body expressed concern that secondaryor concurrent liability would be inconsistent with the separate personality ofan organization or undermine the independence of an organization byprompting interference from the Member States. Commentators have alsoemphasized this problem and used it as a basis for rejecting the liability ofMember States. This section aims to distill the concerns expressed by thevarious international bodies and the commentators in order to facilitate thereconsideration of those concerns. An extended critique of the argumentsrelated to personality and independence is undertaken in Part III.

In 1996, the Institute of International Law, after lengthy and reasonedconsideration of the question of secondary and concurrent liability, adopteda resolution stating that “there is no general rule of international lawwhereby States members are, due solely to their membership, liable . . . forthe obligations of an international organization of which they are mem-



bers.”63 The work of the Institute was greatly influenced by the provisionalreport of Rapporteur Higgins.64

Among the factors considered by Higgins were the conflicting equitableconsiderations of “the efficient and independent functioning of internationalorganizations” and “the protection of third parties from undue exposure toloss and damage.”65 In relation to the independence of international organi-zations, Higgins expressed the concern that Member States faced with po-tential liability for contractual damages or tortious harm would interfere inthe decision-making process of the organization.66 Higgins continued:

It is hard to see how the degree of monitoring and intervention re-quired would be compatible with the continuing status of the organi-zation as truly independent, not only from the host state, but from itsmembership. If members were liable for the defaults of the organiza-tion, its independent personality would be likely to become increas-ingly a sham.67

Higgins went on to conclude that there ought not to be a general principleof international law imposing liability on Member States for the acts of aninternational organization.68 The resolution adopted by the Institute referredto “[i]mportant considerations of policy, including support for the credibil-ity and independent functioning of international organizations.”69 Theseconsiderations were said to justify denying a general and comprehensive ruleimposing liability on Member States for obligations incurred by theorganization.70

The resolution of the Institute did not rule out the possibility of a Mem-ber State being held liable for the acts of an international organization. Pri-marily, the liability of Member States was said to depend upon the rules ofthe organization, which would typically be found in the organization’s con-stituent instrument.71 In the majority of cases, the constituent instrumentsof international organizations are silent on the question of Member Stateliability to third parties. However, the constituent instruments of sometrading and financial organizations contain provisions expressly excludingthe liability of Member States to third parties.72 Hence, in those cases where

63. Inst. of Int’l Law, supra note 19, at 449, art. 6(a). R64. Inst. of Int’l Law, supra note 10, at 373 (Higgins, Provisional Report); see also id. at 249 (Higgins, R

Preliminary Report).65. Id. at 419 (Higgins, Provisional Report).66. Id.67. Id.68. Id.69. Inst. of Int’l Law, supra note 19, at 451, art. 8. R70. Id.71. Id. at 451, art. 5(a).72. Some notable examples in the agencies of the World Bank Group are Articles of Agreement of the

International Bank for Reconstruction and Development art. II(6), Dec. 27, 1945, 60 Stat. 1440, 2U.N.T.S. 134; Articles of Agreement of the International Development Association art. II(3), Jan. 26,1960, 11 U.S.T. 2284, 439 U.N.T.S. 249; Articles of Agreement of the International Finance Corpora-



the liability of Member States is addressed in the rules of the organization,the result is most likely to be a restriction of liability. According to theInstitute, a Member State might also be liable where other principles ofinternational law—such as acquiescence or agency—result in liability,73 orwhere the circumstances at the time of a transaction, including any commu-nications between a Member State and a third party, suggested that theMember State had accepted liability for the transaction.74

Policy considerations relating to the personality and independence of in-ternational organizations have since carried significant weight with otherinstitutions considering the problem of secondary and concurrent liability.In his Fourth Report on Responsibility of International Organizations, Spe-cial Rapporteur Gaja quoted Higgins’s concerns that secondary or concur-rent liability would induce Member States to interfere in the decision-making process of international organizations.75 This “policy reason” wassaid to support the exclusion of secondary or concurrent liability from theDraft Articles.76 Similarly, in 2004, the International Law Association(“ILA”) endorsed the conclusions of the Institute as to secondary and con-current liability, finding it unnecessary to investigate the question in detailfor itself.77 It referred to the “important considerations of policy” cited bythe Institute including support for the “credibility and independent func-tioning” of international organizations.78 The ILA was of the opinion thatthe Institute had struck the correct balance between the autonomy of the

tion art. II(4), May 25, 1955, 7 U.S.T. 2197, 264 U.N.T.S. 117; Convention Establishing the Multilat-eral Investment Guarantee Agency art. 8(d), Oct. 11, 1985, T.I.A.S. No. 12,089, 1508 U.N.T.S. 99.Further examples of constituent instruments that expressly exclude the liability of Member States arecollected in Inst. of Int’l Law, supra note 10, 356 n.40 and by Lord Justice Kerr in Maclaine Watson & RCo. v. Dep’t of Trade & Indus., [1988] 3 All E.R. 257, 321-23 (A.C.) (Eng.). Two treaties, notably notconstituent instruments, expressly provide that Member States will be jointly and severally liable fordamage caused by international organizations: Treaty on Principles Governing the Activities of States inthe Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. VI, Jan. 27,1967, 18 U.S.T. 2410, 610 U.N.T.S. 205; Convention on International Liability for Damage Caused bySpace Objects art. XXII, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187.

73. Inst. of Int’l Law, supra note 19, at 449, art. 5(b)-(c). For examples of how agency appears to be Rencompassed in examples of attribution, see supra Part I.B. Sarooshi argues that the concepts of attribu-tion and agency should not be conflated but concedes that Article 8 of the ILC Articles on State Respon-sibility admits of an interpretation that conflates the two. SAROOSHI (2005), supra note 21, at 38; RSarooshi (2003), supra note 21, at 315. R

74. Inst. of Int’l Law, supra note 19, at 451, art. 9. This was largely adopting the view of Ibrahim F.I. RShihata in the context of international commercial enterprises that all “relevant provisions and circum-stances must be studied to ascertain what was intended by the parties.” Ibrahim F.I. Shihata, Role of Lawin Economic Development: The Legal Problems of International Public Ventures, 25 REVUE EGYPTIENNE DE

DROIT INTERNATIONAL 119, 125 (1969). Shihata’s statement has been criticized for suggesting thatthere are no general rules relating to liability of Member States. See, e.g., AMERASINGHE, supra note 8, at R424; cf. Philippe Cahier, The Strengths and Weaknesses of International Arbitration Involving a State as a Party,in CONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRATION 241, 244 (Julian D.M. Lew ed., 1986).

75. Fourth Report of Special Rapporteur Gaja, supra note 5, ¶ 94. R76. Id.77. ILA REPORT, supra note 2, at 197. R78. Id. at 210.



decision-making process in international organizations and the need for “anaccountability regime without loopholes.”79

Higgins’ analysis has also been influential among academic writers. Forexample, Ignaz Seidl-Hohenveldern—who was involved in the 1996 delib-erations of the Institute of International Law on the question of MemberState liability—had initially expressed the view that Member States wouldnormally assume joint and several liability for the acts of an internationalorganization.80 He maintained this position throughout most of the debatesof the Institute81 before conceding that the policy considerations high-lighted by Higgins had caused him to change his mind.82 More recently, hehas adopted the view that liability of the Member States is a matter to bedetermined in light of all the circumstances of the transaction.83 The reasonfor this shift, according to Seidl-Hohenveldern, was that he had been con-vinced that secondary or concurrent liability would jeopardize the impartial-ity of international organizations.84

Similarly, Henry Schermers and Niels Blokker, in their encyclopedic texton international organizations, quote Higgins’ remarks to the effect thatsecondary or concurrent liability of Member States would make a “sham” ofseparate legal personality.85 The authors do not express any conclusive viewon secondary and concurrent liability, although this omission is in itselfsignificant since Schermers previously took a strong view that MemberStates could not avoid responsibility for the acts of an international organi-zation. The 1980 edition of his text stated:

It is . . . impossible to create international legal persons in such a wayas to limit the responsibility of the individual Members. Even thoughinternational organizations, as international persons, may be held liableunder international law for the acts they perform, this cannot excludethe secondary liability of the Member States themselves.86

In contrast, the most recent edition of the text steps back from this position,stating instead that, as a general rule, acts of an international organizationcannot be treated as acts of the Member States because “[t]o hold otherwisewould unduly and unnecessarily dismantle the organization’s personality.”87

79. Id. at 210–11.80. SEIDL-HOHENVELDERN (1987), supra note 18, at 121; Seidl-Hohenveldern, supra note 34, at 52. R81. Inst. of Int’l Law, supra note 10, at 369, 371 (Seidl-Hohenveldern commentary). R82. Id. at 433.83. Seidl-Hohenveldern (2001), supra note 18, at 739. Seidl-Hohenveldern purports to follow Shihata R

in this respect. Shihata was discussing international commercial ventures, but Seidl-Hohenveldern ap-plies Shihata’s reasoning to international organizations “stricto sensu.” Id. at 727. Higgins suggests thatShihata’s formulation applies a fortiori to international organizations properly so called. Inst. of Int’l Law,supra note 10, at 401 (Higgins, Provisional Report). R

84. Seidl-Hohenveldern (2001), supra note 18, at 738. R85. SCHERMERS & BLOKKER, supra note 8, at 1008. R86. HENRY G. SCHERMERS, INTERNATIONAL INSTITUTIONAL LAW 780 (2d ed. 1980).87. SCHERMERS & BLOKKER, supra note 8, at 1007. R



C.F. Amerasinghe, a prominent international law jurist, has also adoptedthe view that secondary or concurrent liability of Member States would bedetrimental to the independence and personality of international organiza-tions. He states that if Member States are faced with the legal certainty ofsecondary or concurrent liability “they may be inclined to attempt to con-trol the daily transactions of the organization in such a way as to jeopardize,and virtually cripple, its smooth operation as an independent entity with aseparate identity.”88 Further, Amerasinghe argues that the prospect of sec-ondary or concurrent liability “would deter most states, particularly thepoorer ones, from becoming members of international organizations and par-ticipating in international co-operation.”89 On this view, restricting the lia-bility of Member States bears instrumental value in promoting greaterinternational co-operation through the use of international organizations.

The principal policy consideration in conflict with the separate personal-ity and independence of international organizations is the position of thirdparties. Generally, third parties stand to lose the most from the conclusionthat Member States are not liable for wrongful acts of an international or-ganization. If Member States could shelter behind the separate personality ofan international organization, third parties would have no effective remedywhen an international organization lacks the financial means to providecompensation for loss. Further, if the organization is not subject to the juris-diction of the relevant international tribunal, the third party will be de-prived of a forum to bring its claim. For example, since only States may beparties to contentious cases before the ICJ,90 an injured State is deprived ofthis avenue for pursuing claims against an international organization. This,of course, explains why, in the NATO Bombing Case, FRY brought its claimfor compensation against the individual Member States.

It has been suggested that third parties who contract with internationalorganizations are generally aware of the principle of limited liability, acceptthe organization as the debtor, and therefore have no right to pursue a rem-edy against the Member States.91 However, the question of whether a thirdparty enters into a contract with knowledge, actual or constructive, that theonly remedy is against the organization is a question of fact dependent onthe circumstances existing at the time of the contract. When the constituentinstrument expressly excludes the liability of the Member States, there mayperhaps be a presumption of the requisite knowledge.92 This argument is

88. C.F. Amerasinghe, Liability to Third Parties of Member States of International Organizations: Practice,Principle and Judicial Precedent, 85 AM. J. INT’L L. 259, 278 (1991); see also AMERASINGHE, supra note 8, at R442.

89. AMERASINGHE, supra note 8, at 443. R90. Statute of the International Court of Justice art. 34(1), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S.

993.91. AMERASINGHE, supra note 8, at 441. R92. Inst. of Int’l Law, supra note 10, at 369 (Seidl-Hohenveldern commentary). The constituent in- R

struments of some organizations expressly provide that third parties are deemed to have knowledge ofprovisions limiting liability of the Member States. See, e.g., International Cocoa Agreement, 2001 art. 24,



unpersuasive, however, when a third party who has not previously dealt withthe organization alleges injury as the result of the organization’s tortious orcriminal conduct. Accordingly, it has been suggested that a distinctionshould be drawn between voluntary and non-voluntary third parties, withthe former group restricted to remedies against the organization and thelatter group having a right to proceed against the Member States in theevent of default by the organization.93

Arguments based on policy in this area of international law, as in mostothers, are extremely complex. In her preliminary report to the Institute,Higgins stated: “While I would regard it as entirely appropriate to look atpolicy considerations, it is not clear to me that they necessarily lead in onedirection rather than another.”94 While the ILC Working Group on Re-sponsibility of International Organizations has not based its conclusions onthe question of secondary and concurrent liability exclusively on policy con-siderations, it remains the case that concern for the separate personality andindependence of international organizations is an important factor weighingon the minds of those considering the legal rules governing liability ofMember States.

Before examining whether these concerns are well-founded, it is useful todistinguish between the different types of concerns voiced by commentatorson international law. First, there is the suggestion that secondary or concur-rent liability is inconsistent with and jeopardizes the well-recognized legalprinciple that an international organization has a personality separate fromits Member States. Second, it is argued that Member States faced with theprospect of liability would interfere in the operation of international organi-zations, depriving them of independence and impartiality. This second con-cern feeds into the first, since the independence of an organization may bediminished to such an extent that it ceases to have separate personality. Lackof independence carries further significance, though, because it reduces theefficiency of the organization and its efficacy as a tool of international co-operation. Concern over efficiency in international relations has been carriedso far as to suggest that States would be deterred from participating asmembers of international organizations.95 Part III isolates these concernsfrom the broader debate over secondary and concurrent liability and exam-ines each of the arguments in turn.

Mar. 2, 2001, 2229 U.N.T.S. 85; International Coffee Agreement, 2001 art. 26(2), Sept. 28, 2000, 2161U.N.T.S. 312.

93. HIRSCH, supra note 19, at 163–68. R94. Inst. of Int’l Law, supra note 10, at 288 (Higgins, Preliminary Report). This qualification was, R

however, removed from the Provisional Report.95. Klabbers characterizes this concern as a contention that liability of Member States should be

restricted “to make it possible for organizations to engage in activities in which the individual member-states would hesitate to participate.” However, he regards this as an unjustified reason for requiring aninjured third party to sacrifice its right to a remedy. KLABBERS, supra note 8, at 314. R



III. CRITIQUING THE COMMENTATORS: THE CONCERNS EXPOSED

A. Liability of Member States is not Inconsistent with the Separate Personalityof an International Organization

The first concern is that secondary or concurrent liability is inconsistentwith and jeopardizes the well-recognized legal principle of separate person-ality. Though no commentator has outlined or explained in any detail whysecondary or concurrent liability is inconsistent with separate personality,the assumption appears in several works that assert that separate personalitywould be “dismantled”96 or become a “sham.”97 However, the suggestionthat separate personality of an organization is inconsistent with secondary orconcurrent liability of the Member States is unsustainable. The concepts ofsecondary and concurrent liability both presuppose that the organization isresponsible for its acts. The capacity to bear responsibility under interna-tional law is an incident of legal personality, and consequently, far fromundermining separate personality, the concepts of secondary and concurrentliability assume it. A brief examination of the principle of separate personal-ity and its connection to responsibility will demonstrate this point.

At the outset, it is necessary to draw a distinction between personality inthe domestic law of the Member States, and personality under internationallaw. The constituent instruments of numerous international organizationscontain provisions endowing the organizations with personality in the do-mestic law of the Member States.98 Such provisions typically have the effectof allowing the organization to possess rights and duties in domestic law,such as those created by contracts for goods and services, or for the leasing ofpremises. The vast majority of constituent instruments provide for personal-ity in the domestic sphere.99 As far as international law principles are con-cerned, the Member States are bound by their own agreement to recognizethat personality.100 Since personality in the domestic law of the MemberStates is governed by treaty obligations, there can be no serious concern thatsecondary or concurrent liability would undermine personality in the do-mestic sphere. By contrast, subject to some limited exceptions,101 the con-

96. SCHERMERS & BLOKKER, supra note 8, at 1007. R97. Inst. of Int’l Law, supra note 10, at 419 (Higgins, Provisional Report). R98. The archetype is U.N. Charter art. 104. Further examples are collected in SANDS & KLEIN, supra

note 8, at 471 n.10. R99. SANDS & KLEIN, supra note 8, at 475. R100. In a monist State, the international obligations of the State have automatic effect in domestic

law. See UNRRA v. Daan, 16 I.L.R. 337 (Sup. Ct. 1950) (Neth.). In a dualist State like the U.K., afurther legislative or executive act is required before obligations, including the obligation to recognizepersonality, are enforceable in domestic law. See J.H. Rayner Ltd. v. Dep’t of Trade & Indus., [1990] 2A.C. 418, 510 (H.L.) (Eng.) (Lord Oliver). In either case, a State may not invoke its internal law as ajustification for failure to comply with a treaty. See Vienna Convention on the Law of Treaties art. 27,May 23, 1969, 1155 U.N.T.S. 331; ILC Articles on State Responsibility, supra note 11, art. 32. R

101. See, e.g., United Nations Convention on the Law of the Sea art. 176, Dec. 10, 1982, 1833U.N.T.S. 397 (for the International Seabed Authority); Agreement Establishing the International Fund



stituent instruments of international organizations do not address thequestion of personality in international law. Accordingly, the discussion be-low relates to the principle of separate personality in the internationalsphere.

Prior to 1949, there was controversy over whether an international organ-ization was capable of possessing legal personality in the internationalarena.102 This question arose for consideration by the ICJ in the Reparationcase,103 in which the General Assembly requested an advisory opinion onwhether the United Nations had the capacity to bring an international claimagainst a State responsible for causing injury to a U.N. agent. As a prelimi-nary point, the ICJ took the view that the United Nations could only pos-sess the capacity to bring such a claim if it was endowed with internationallegal personality.104 In relation to personality, the ICJ stated that the UnitedNations “was intended to exercise and enjoy, and is in fact exercising andenjoying, functions and rights which can only be explained on the basis ofthe possession of a large measure of international personality and the capac-ity to operate upon an international plane.”105 Although this decision re-lated only to the personality of the United Nations, there is little doubt thatthe reasoning of the ICJ can be extended to other international organizationspossessing functions, rights or duties that necessitate legal personality.106 Itis now generally accepted that international organizations are capable of pos-sessing international legal personality, separate from the personality of theMember States.107

While the notion of an organization possessing international personalityhas come to be accepted, there is no consensus as to the criteria to be satis-

for Agricultural Development art. 10(1), June 13, 1976, 28 U.S.T. 8435, 1059 U.N.T.S. 191. Article281 of the Treaty Establishing the European Community states, “[t]he Community shall have legalpersonality.” Treaty Establishing the European Community art. 281, Nov. 10 1997, 1997 O.J. (C 340)3. Although the article is ambiguous, it may be taken to be a reference to international personality sincedomestic personality is addressed separately in article 282. See also Marrakesh Agreement Establishing theWorld Trade Organization art. VIII(1)-(2), Apr. 15, 1994, 1867 U.N.T.S. 3.

102. A collection of pre-1945 articles on the question is collected in C.W. Jenks, The Legal Personalityof International Organizations, 22 BRIT. Y.B. INT’L L. 267, 267 n.1 (1945).

103. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949I.C.J. 174 (Apr. 11).

104. Id. at 179. The majority did not refer to U.N. Charter art 104. Cf. id. at 196-98 (Hackwork, J.,dissenting).

105. Id. at 179.106. SANDS & KLEIN, supra note 8, at 472. R107. See sources cited supra note 8. A minority view challenging international legal personality is R

found in Reinhold Reutersward, The Legal Nature of International Organizations, 49 NORDISK TIDSSKRIFT

FOR INTERNATIONAL RET 14 (1980). Soviet authorities had been reluctant to recognize the legal person-ality of international organizations, unless it was expressly attributed in the constituent instrument.Grigory I. Tunkin, The Legal Nature of the United Nations, 119 RECUEIL DES COURS D’ACADEMIE DE

DROIT INTERNATIONAL, 1, 29–31 (1966). However, Soviet doctrine on personality subsequently devel-oped and accepted that an organization had the degree of personality necessary for its functioning. ChrisOsakwe, Contemporary Soviet Doctrine on the Juridical Nature of Universal International Organizations, 65 AM.J. INT’L L. 502 (1971).



fied in order to demonstrate personality.108 Formal criteria such as perma-nent association and the existence of legal powers exercisable on theinternational plane are no doubt necessary.109 The most distinctive and sig-nificant requirements, however, are that the organization, or at least oneorgan of the organization, expresses a will distinct from that of the MemberStates, and that the organization is not subject to the authority of the Mem-ber States.110 Where an organization does not possess a distinct will, or actsonly under the authority of the Member States, it will be regarded as a mereextension of the Member States with no independent personality.

An important consequence of the possession of personality is that an in-ternational organization may be held responsible for its acts under interna-tional law.111 The responsibility of an international organization is thecorollary of the ability of the organization to bring claims to enforce itsrights under international law.112 For example, the U.N. Secretary-Generalhas stated that: “The international responsibility of the United Nations forthe activities of United Nations forces is an attribute of its internationallegal personality and its capacity to bear international rights and obliga-tions.”113 The principles governing the responsibility of international orga-nizations are, so far as practical, the same as the principles governing theresponsibility of States.114

There is some degree of controversy over whether the personality of aninternational organization is objective, and therefore binding on third par-ties. In the Reparation case, the ICJ held that the United Nations possessed“objective international personality” and was therefore capable of bringing aclaim in international law against a non-member State.115 However, it hasbeen argued that the objective personality of the United Nations is theunique result of its near-universal membership, and the fact that its activi-ties cover “all possible areas of international concern.”116 On this argument,

108. KLABBERS, supra note 8, at 52–57. R109. Commentators have derived these requirements from the Reparation case. AMERASINGHE, supra

note 8, at 83; BROWNLIE, supra note 61, at 649. R110. AMERASINGHE, supra note 8, at 82-83; KLABBERS, supra note 8, at 12; Jan Klabbers, The Chang- R

ing Image of International Organizations, in THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS 221, 226(Jean-Marc Coicaud & Veijo Heiskanen eds., 2001) (noting the requirement for a “volonte distincte”);Manuel Rama-Montaldo, International Legal Personality and Implied Powers of International Organisations, 44BRIT. Y.B INT’L L. 111, 144 (1970).

111. AMERASINGHE, supra note 8, at 399; KLABBERS, supra note 8, at 306; SANDS & KLEIN, supra note R8, at 513; SCHERMERS & BLOKKER, supra note 8, at 1006. The connection between the personality of Rinternational organizations and responsibility was noted soon after the Reparation case. See ClydeEagleton, International Organization and the Law of Responsibility, 76 RECUEIL DES COURS D’ACADEMIE DE

DROIT INTERNATIONAL, 319, 325 (1950).112. AMERASINGHE, supra note 8, at 399. R113. The Secretary-General, supra note 27, ¶ 6. R114. First Report of Special Rapporteur Gaja, supra note 55, ¶ 11; SANDS & KLEIN, supra note 8, at R

519-20; SCHERMERS & BLOKKER, supra note 8, at 1006. R115. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949

I.C.J. 174, 185 (Apr. 11).116. Seidl-Hohenveldern (2001), supra note 18, at 733. R



a treaty creating an international organization, and providing expressly orimplicitly for its international personality, is a res inter alios acta as regards athird party, and therefore cannot affect rights or obligations other than thoseof the Member States.117 As a consequence, it is argued that a third partycannot be required to accept the international organization as a substitutedebtor for the Member States, which have a greater aggregate wealth thanthe organization.118 If correct, this argument would all but eliminate theneed for secondary or concurrent liability to third parties, since a third partycould ignore the separate personality of the organization and proceed di-rectly against the Member States.119

While controversy over the nature and indicia of international legal per-sonality remains, the better view is that the separate personality of an inter-national organization is binding upon third parties. Internationalorganizations deal with third parties in a manner that is explicable only onthe basis that the organization has its own personality. Negotiations areconducted and contracts concluded with the organization rather than theMember States. International organizations fulfill obligations to third par-ties and routinely accept responsibility for failure to perform. The capacityto take part in international relations and the related capacity to bear re-sponsibility for those acts necessitates objective personality. The most stri-dent view is that all international organizations have objective personalityby virtue of their existence.120 A more equivocal view is that the constituentinstrument of the organization is capable of imposing the organization’s per-sonality upon a third party.121 At the very least, a third party that has ex-pressly or implicitly recognized the organization by conducting dealingswith it will be bound to the extent that separate personality is conferred onthe organization under international law.122 Hence, if the personality of in-ternational organizations is objective, third parties cannot bypass the person-ality of an organization and proceed directly against the Member States. If

117. Id. at 732; SEIDL-HOHENVELDERN (1987), supra note 18, at 121. R118. Seidl-Hohenveldern (2001), supra note 18, at 732. R119. Seidl-Hohenveldern concedes that when a third party contracts with an international organiza-

tion this constitutes recognition of the personality of the organization. Seidl-Hohenveldern (2001), supranote 18, at 733. In such cases, it might still be open to the third party to assert secondary or concurrent Rliability of the Member States.

120. AMERASINGHE, supra note 8, at 91; Finn Seyersted, Objective International Personality of Intergovern- Rmental Organizations: Do Their Capacities Really Depend Upon the Conventions Establishing Them?, 34NORDISK TIDSSKRIFT FOR INTERNATIONAL RET 1, 45 (1964); see SCHERMERS & BLOKKER, supra note 8, at R990 (stating that an international organization with membership open to all States will have objectivepersonality); cf. Jan Klabbers, Presumptive Personality: The European Union in International Law in INTERNA-

TIONAL LAW ASPECTS OF THE EUROPEAN UNION 231 (Martti Koskenniemi ed., 1998) (explaining alter-native theories of personality not necessarily inconsistent with objective personality, such as presumptivepersonality theory, which holds that an organization has international personality as soon as it performsacts that can only be explained on the basis of personality).

121. Inst. of Int’l Law, supra note 10, at 276 (Higgins, Preliminary Report). R122. SANDS & KLEIN, supra note 8, at 476. R



the organization has separate personality, the liability of the Member Statescan only be secondary to or concurrent with the liability of the organization.

It is apparent that in the division of responsibility between an interna-tional organization and its Member States, the separate personality of theorganization takes on vital importance. If an international organization hasno distinct personality, it cannot be liable for obligations, even if the obliga-tions are incurred in its name.123 In such a situation, the Member States willbe directly liable for all obligations incurred in the name of the organiza-tion.124 For example, in the Certain Phosphate Lands in Nauru Case,125 it wasimplied that any of the States involved in a tripartite administering organi-zation could be held directly responsible for the acts of the organization. TheICJ stressed that the administering authority “did not have an internationallegal personality” distinct from the three administering States.126 Similarly,the Belgo-Luxembourg Economic Union, which is represented by Belgiumin its international relations, does not have separate personality, with theprobable effect that the two Member States are jointly and severally liablefor its acts.127 A further example is the U.N. Command in Korea, which didnot possess distinct personality, meaning the United States and its allieswere liable for the conduct of its operations.128

While it is clear that personality has important consequences for responsi-bility, it does not follow that the principle of separate personality would beendangered by the secondary or concurrent liability of Member States. If theMember States, and only the Member States, were responsible for the activi-ties of the organization it would be difficult to maintain the notion of sepa-rate personality. An international organization that was not responsible forits own acts could not be said to have separate personality, since the capacityfor responsibility is concomitant with personality. However, it does not un-dermine the responsibility of international organizations to suggest thatMember States might bear secondary or concurrent liability. The notions ofsecondary and concurrent liability both presuppose that the organization isitself responsible for its acts. Liability of the Member States would ariseeither alongside the liability of the organization (concurrent liability), or as afallback when the organization is unable to meet its obligations (secondaryliability). Therefore, it cannot be said that secondary or concurrent liability,as propositions of law, are inconsistent with the concept of separate personal-ity. Insofar as the commentators have relied upon any such inconsistency,their concerns are entirely unfounded.

123. Inst. of Int’l Law, supra note 10, at 252–53 (Higgins, Preliminary Report). R124. Id.; see also Seyersted, supra note 120, at 41. R125. Certain Phosphate Lands in Nauru (Nauru v. Austl.), 1992 I.C.J. 240 (June 26).126. Id. at 258 (per curiam); id. at 271 (separate opinion of Judge Shahabuddeen).127. AMERASINGHE, supra note 8, at 412. R128. Finn Seyersted, United Nations Forces: Some Legal Problems, 37 BRIT. Y.B. INT’L L. 351, 427–34

(1961).



B. Liability of Member States will not Restrict the Independence ofInternational Organizations

The second and more forceful concern of the commentators is that secon-dary or concurrent liability would diminish the independence of interna-tional organizations by prompting the Member States to interfere in internalworkings. It is argued that Member States facing the prospect of financialliability for the actions of an international organization will want greatercontrol over those actions. If the degree of control by the Member States issufficient, the organization will cease to have a distinct will and its separatepersonality will be forfeited. The concern of the commentators over loss ofpersonality almost certainly derives from this argument, rather than fromany perceived inconsistency between personality of an international organi-zation and secondary or concurrent liability, although this is not made clearfrom their writings. There is a certain amount of force behind this concern.An organization controlled by its Member States will lack a distinct will,the most important criteria for personality. In addition to the concern overpersonality, the commentators argue that the benefits of efficiency and im-partiality that come with an international organization would be disruptedif the Member States interfered excessively with the organization’soperation.

There may be good reasons to believe that international organizationswould operate less efficiently if controlled by their Member States. The cru-cial question, however, is whether secondary or concurrent liability would,in fact, lead to greater interference by Member States in the workings ofinternational organizations. Commentators assume that Member States willinsist on greater control if they are to be expected to face the financial conse-quences of the actions taken by the organization. This assumption overlooksthe position that, secondary and concurrent liability aside, there is already abroad consensus in international law and practice imposing liability onMember States for costs incurred by an international organization.

The most authoritative statement of this principle is in the Certain Ex-penses129 case decided by the ICJ in 1962. In that case, the ICJ was requestedto render an advisory opinion as to whether expenses incurred in the courseof U.N. peacekeeping operations in the Congo and the Middle East consti-tuted “expenses of the Organization” within the meaning of Article 17(2) ofthe U.N. Charter. Under Article 17(2), such expenses were to be borne bythe Member States as apportioned by the General Assembly. The ICJ heldthat, in general, the expenses of an organization are the “amounts paid outto defray the costs of carrying out its purposes” and in the case of the UnitedNations this included its political, economic, social and humanitarian pur-

129. Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opin-ion, 1962 I.C.J. 151 (July 20).



poses.130 There was to be a presumption that an action taken by the UnitedNations was not ultra vires, and even where an action was not in conformitywith the internal procedures of the United Nations, it would nevertheless bean “expense” provided it was in accordance with the purposes of the UnitedNations.131 Member States of the United Nations were consequently obligedto contribute to the peacekeeping expenses in accordance with the formulaof apportionment adopted by the General Assembly.

The constituent instruments of most international organizations providefor financial contributions from the Member States, though the precise formof the obligation may differ among organizations.132 If the broad interpreta-tion given by the ICJ to “expenses” under the U.N. Charter is carried overto other international organizations, the obligation to contribute could coverany expenses incurred in the course of activities related to the organization’spurposes. Further, in a separate opinion in the Certain Expenses case, JudgeFitzmaurice argued that, even in the absence of Article 17(2), the collectiveobligation of the Member States to finance the United Nations would havearisen by necessary implication.133 The same reasoning may be applied toother international organizations such that in most cases Member States areobliged to contribute to the financial expenses of an organization.134 In gen-eral, an international organization will incur obligations to third parties inpursuance of its purposes.135 Consequently, Member States stand liable toeach other and the organization to contribute to debts to third parties in-curred by the organization.

Commentators refer to the obligation to fund an organization so that itmay pay its debts—rather than its running costs—as “indirect” liability.136

This form of liability creates an obligation enforceable only by other Mem-ber States, or by the organization itself, in accordance with the express orimplied terms of the constituent instrument. It does not confer a right on

130. Id. at 158.131. Id. at 167–68 (per curiam); see also id. at 223–24 (separate opinion of Judge Morelli); id. at

199–200 (separate opinion of Judge Fitzmaurice) (expressing no final view on the question of actionstaken by an organ in contravention of internal rules); cf. id. at 230 (Winiarski, P.J., dissenting).

132. AMERASINGHE, supra note 8, at 359–65; SANDS & KLEIN, supra note 8, at 569–73; SCHERMERS & RBLOKKER, supra note 8, at 620–35. R

133. Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opin-ion, 1962 I.C.J. 151, 208 (July 20). Judge Fitzmaurice argued that even Member States that votedagainst a decision or abstained would nonetheless be obliged to contribute to the financing. Id. at 210.See also id. at 248 (Moreno Quintana, J., dissenting) (arguing that Article 17(2) lays down a rule “com-mon to almost all types of international organization”). Judge Moreno Quintana also argued that thecosts to be paid were only the administrative costs. Id. at 252.

134. SANDS & KLEIN, supra note 8, at 525. Inst. of Int’l Law, supra note 10, at 415 (Higgins, Provi- Rsional Report). Higgins notes, however, that this may not be the case where the Member States, by theterms of the constituent instrument, are only liable to make fixed capital contributions. Id. at 396.

135. AMERASINGHE, supra note 8, at 374; SANDS & KLEIN, supra note 8, at 525. R136. HIRSCH, supra note 19, at 142; SCHERMERS & BLOKKER, supra note 8, at 1007; Henry Schermers, R

Liability of International Organizations, 1 LEIDEN J. INT’L L. 3, 14 (1988). But cf. KLABBERS, supra note 8, Rat 313 (criticizing indirect liability on the basis that if one accepts indirect liability there is no reason notto accept direct liability).



third parties to seek recovery directly from the Member States. In this sense,indirect liability is distinguishable from secondary and concurrent liability.While indirect liability does not confer rights on third parties, it is nonethe-less an obligation that binds Member States under international law. In thedebates of the Institute of International Law regarding responsibility of in-ternational organizations, the view was expressed on several occasions thatMember States would be obliged to contribute to the funds of an organiza-tion in order to put it in a position to meet its creditors.137 The Resolutionadopted by the Institute stated that unless the rules of an organization pro-vided otherwise, or prevailing facts indicated otherwise, the Member Stateswould be obliged to discharge the outstanding debts of an organizationupon its dissolution.138 According to the Institute, where the Member Statesare liable fund an organization, the contribution of each Member Stateshould be proportionate to its contribution to the regular budget or to itscapital subscription.139

The prospect of indirect liability was raised throughout the ITC litiga-tion. It was argued before the High Court that the ITC could be placed inreceivership and then pursue a cause of action against the Member States.140

In the Court of Appeal, Lord Justice Ralph Gibson was of the view that theMember States of the ITC were liable under international law to providesufficient funds to the ITC to enable it to meet its debts.141 This liabilitycould only be enforced at the State level and therefore did not provide adirect remedy for creditors.142 Similarly, Lord Griffiths considered that the“obvious just solution” to the problem was for the governments who con-tributed to the trading funds of the ITC to settle its debts in proportion totheir contributions.143 Indirect liability furnished the ultimate solution tothe ITC litigation. The Member States funded the organization to enable itto settle its debts, insisting that those payments could not be regarded asdischarge of any obligation owed by them directly to third parties.144

137. Inst. of Int’l Law, supra note 10, at 334 (Crawford commentary); id. at 360 (Amerasinghe). Other Rmembers of the Institute stated that if there was any liability of Member States it should be liability toput the organization in funds. Id. at 315 (Shihata); id. at 331 (Seyersted); id. at 364 (Bowett); cf. id. at371 (Seidl-Hohenveldern).

138. Inst. of Int’l Law, supra note 19, at 453, art. 11. R139. Id. art. 10.140. Maclaine Watson & Co. v. Int’l Tin Council, [1988] 3 All E.R. 257 (A.C.) (Eng.). The argument

was rejected on the basis that such a cause of action depended on the constituent instrument and wastherefore not justiciable in an English court. Id. at 25 (Lord Millet). This was affirmed by the House ofLords. [1990] 2 A.C. 418, 482-83 (H.L.) (Lord Templeman) (Eng.); id. at 522 (Lord Oliver).

141. Maclaine Watson, [1988] 3 All E.R. at 353-54. Lord Justice Kerr appeared to reach the sameconclusion, although his judgment is ambiguous on this point. Id. at 307.

142. Id. at 337, 354 (Lord Ralph Gibson).143. J.H. Rayner Ltd. v. Dep’t of Trade & Indus., [1990] 2 A.C. 418, 484 (H.L.) (Lord Griffiths)

(Eng.); id. at 482 (Lord Templeman).144. SANDS & KLEIN, supra note 8, at 525–26; Amerasinghe, supra note 88, at 269; Ignaz Seidl- R

Hohenveldern, Failure of Controls in the Sixth International Tin Agreement, in TOWARDS MORE EFFECTIVE

SUPERVISION BY INTERNATIONAL ORGANIZATIONS 255, 267 (Niels Blokker & Sam Muller eds., 1994).



Given that Member States bear indirect liability for the debts of an inter-national organization, it is unlikely that the prospect of secondary or concur-rent liability would be an additional burden prompting interference in theinternal working of the organization. Member States, in establishing andmaintaining an international organization, must be taken to understand thatunder general principles of international law, and in many cases under theterms of the constituent instrument, they may be required to fund the or-ganization so that it can meet its debts. Although there are legal and proce-dural differences between indirect liability and secondary or concurrentliability, the substance of the obligation, that is, to ensure that the debts ofthe organization are repaid, is the same. This obligation can be enforcedeither by the organization itself or by any of the Member States. It seems anunjustified assumption that the difference between secondary and concurrentliability and the generally accepted principle of indirect liability would besufficient to prompt Member States into a greater degree of interferencewith the operations of international organizations. Member States that rec-ognize the value of independent and efficiently functioning internationalorganizations are unlikely to jeopardize those qualities through excessiveinterference.145

Is this conclusion altered if the international organization in question wasintended to make a profit, such that the Member States expected that theywould not incur any financial obligations beyond the initial establishmentcosts?146 Certain international organizations are funded on the basis that theMember States will contribute a fixed capital sum for the establishment ofthe organization, after which the organization is intended to be self-fund-ing.147 However, organizations of this nature are not generally intendedsolely to make profit, but rather to advance the policy objectives of theMember States. For example, the International Monetary Fund and WorldBank are engaged in the lending of money at interest, but this task is in-tended to achieve broader policy objectives. The ITC was engaged in thebuying and selling of tin, not primarily for profit but rather to ensure astable world market.148 If governments are prepared to establish such orga-nizations, one might assume that they are willing to fund the organizationsso that they can achieve their objectives.149 Further, the ultimate resolutionof the ITC litigation demonstrates that even when an organization is in-

145. Sadurska & Chinkin, supra note 34, at 889. R146. The possibility of other sources of income was addressed by the ICJ in Certain Expenses of the

United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opinion, 1962 I.C.J. 151, 158 (July20).

147. Inst. of Int’l Law, supra note 10, at 396 (Higgins, Provisional Report). Higgins argues that it is Rnot clear from the Certain Expenses case that in such organizations there is an obligation to cover theorganization for debts beyond what can be met from the fixed contribution.

148. In dissent, Lord Justice Nourse considered that the ITC was a “hybrid” organization carryingout jure imperii and jure gestionis functions. Maclaine Watson & Co. v. Dep’t of Trade & Indus., [1988] 3All E.R. 257, 327 (A.C.) (Eng.).

149. Lord Justice Nourse found this argument compelling. Id. at 333.



tended to be self-funding, the Member States will retain indirect liability forits debts. Hence, the additional prospect of secondary or concurrent liabilityis no further motivation to interfere in the workings of a profit-makingorganization, than in those of a non-profit-making organization.

Finally, it must be considered whether the prospect of joint and severalliability, as opposed to liability in proportion to the financial contributionsof the Member States, might induce Member States to interfere in the work-ings of an international organization.150 One of the main advantages of inter-national organizations is that they allow for the spreading of cost and riskbetween States.151 However, if Member States bear joint and several liabil-ity, a creditor could pursue one Member State for the whole of the debtsincurred by the organization.152 This prospect might be unattractive forpoorer States that are incapable of bearing the full cost of an enterprise.153 Itmight also be unattractive for wealthier States, which are more likely to bepursued by a creditor in the event of the insolvency of the organization.However, any single Member State pursued by a debtor could presumablymaintain an action against the other Member States to enforce their contri-bution to the debt,154 or even seek to join the other Member States to theaction commenced by the third party. Therefore, joint and several liabilitywould not necessarily result in the elimination of cost-spreading betweenStates. Pursuit of other Member States for their contribution to a debt, ei-ther through the courts or by diplomacy, might be a complex task.155 How-ever, it need not be any more complex than disputes over the contributionsowed by Member States under the organization’s constituent instrument.Hence, even if liability of Member States were joint and several, there is nocompelling reason to think this would provoke interference by the MemberStates in the workings of the organization.

CONCLUSION

This Note has responded to the concern that secondary or concurrent lia-bility would undermine the personality and independence of internationalorganizations, concluding that the impact upon personality and indepen-dence has been exaggerated. Rejection of the principles of secondary and

150. Opinion is divided over whether secondary or concurrent liability, if either existed, would bejoint and several. See supra note 20. R

151. BROWNLIE, supra note 61, at 656. R152. The ICJ has held that where more than one State is liable, the fact that only one State is sued

does not make the claim inadmissible in limine litis. Certain Phosphate Lands in Nauru (Nauru v. Austl.)1992 I.C.J. 240, 258-59 (June 26). See also ILC Articles on State Responsibility, supra note 11, art. 47(1). R

153. AMERASINGHE, supra note 8, at 443. R154. The rule that each State may be sued severally, see supra note 152, is without prejudice to any R

right of recourse against other responsible States. See ILC Articles on State Responsibility, supra note 11, Rart. 47(2)(b). This proviso does not itself govern the question of contribution among States, but preservesany existing rule of international law. CRAWFORD, supra note 12, at 275. R

155. Sadurska & Chinkin, supra note 34, at 889. R



concurrent liability on the basis of these policy considerations ought there-fore to be reconsidered. As stressed in the introduction, this conclusion isnot sufficient to prove the existence of a rule of secondary or concurrentliability in international law. This Note has the more limited objective ofdemonstrating that concern for the personality or independence of interna-tional organizations is not a sound reason for denying such liability. Even ifone accepts this argument, one may conclude on other grounds that secon-dary and concurrent liability are not principles of international law. Onesuch ground may be that secondary or concurrent liability would involve theimposition of liability on Member States for acts that they have not commit-ted. As discussed in Part I, all of the alternative bases for establishing theliability of a Member State for the act of an international organization de-pend upon involvement by the Member State in the commission of thewrongful act. Secondary or concurrent liability would be a significant depar-ture from this pattern.

liability of member states for acts of international organizations

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