It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.Footnote 1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’Footnote 2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.Footnote 3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.Footnote 4
While the principle that Member States are not to be held responsible for the acts of IOs appears to be well established, some authors have contested it on various policy grounds, not least on the ground that an individual who is harmed by IO action should have a remedy.Footnote 5 Arguably, as IOs typically provide few, if any, remedies to aggrieved individuals,Footnote 6 an accountability gap has opened up that could only be closed by holding Member States responsible for wrongful IO action. More mechanisms are indeed available to hold States to account.
Probably the most well-known mechanism to hold States accountable for human rights violations is the European Court of Human Rights (‘ECtHR’). The court has held, in a string of cases, which has recently expanded considerably, that when Contracting States to the European Convention on Human Rights (‘ECHR’) establish an IO, they are not absolved of their responsibility under the Convention in relation to the field of activity transferred to the organization. Admittedly, in those cases, and their progenies, the Court eventually did not find the Member States of the IOs in question responsible. However dicta do seem to imply that Member States remain responsible after having transferred competencies to an IO, and thus can incur liability for the wrongful acts of the IO by their membership.
At first sight, the ECtHR's case law appears to pierce the liability veil of IOs and to negate the principle that an IO is a separate legal entity. For that reason, it may be subject to criticism.Footnote 7 At the same time, however, one cannot fail to note that the ECtHR, despite formally maintaining that Member States are not absolved of their responsibility under the ECHR upon joining an IO, has never held a Member State actually responsible. This is attributable to the Court's requirement that the absence of equivalent human rights protection at the level of the IO has to be demonstrated by the claimant.
This article will (1) map the ECtHR's recent case law on the responsibility of States in connection with the acts of IOs to which they have transferred competencies (starting with Bosphorus); (2) compare this case law with the ILC's views on such responsibility in the DARIO; and (3) assess, from a legal policy perspective, whether this case law adequately negotiates the tension between the principle that a State should not incur responsibility for the acts of an IO of which it is a member, and the individual's right to have a remedy for inflicted injuries.
When comparing the ECtHR's case law with the DARIO, specifically article 61Footnote 8—which cites Bosphorus, apparently approvingly—we do so without necessarily considering the DARIO as the applicable lex lata generalis as regards the responsibility of IOs or the responsibility of Member States in connection with acts of IOs. It is not the aim of this article to test whether ECtHR case law is compatible with the DARIO, as it is not clear whether the DARIO will represent valid international law. The DARIO project has been criticized by a number of prominent scholars, on various grounds, such as its over-reliance on the State responsibility regime and its failure to cite sufficient practice.Footnote 9 Alvarez recently discerned the following five general problems with the DARIO: (1) the lack of evident State practice; (2) the lack of clarity as to the status of an IO's internal rules and procedures; (3) the assumption that all IOs are equal and subject to the same rules of responsibility; (4) the assumption that IOs are presumptively responsible for their acts; (5) the assumption that States are presumptively responsible for their IO acts.Footnote 10 In addition, it can be argued that it is short on references to State and institutional practice.
However, while the DARIO may be criticized on the above grounds, and may not be a statement of the law as it currently stands, it can provide useful guidance as an authoritative statement of the ILC, and can also assist to identify the circumstances under which Member States may incur responsibility for the acts of IOs. The ECtHR's decisions and judgments on this question also may qualify as equally authoritative statements of a recognized regional human rights court. However, in spite of this, neither the ILC's nor the ECtHR's approach to the question necessarily represents currently applicable general international law.Footnote 11
Although reference may be made to the DARIO, the touchstone of the analysis is not the DARIO, but two—possibly competing—normative principles: (1) the principle that IOs, being autonomous persons in international law, should incur liability for their acts, rather than the States which have established them; (2) the principle that a remedy should be available for individuals harmed by IO action.
In regards to the first principle, it is observed that the great majority of IOs have a legal personality separate from their Member States.Footnote 12 IOs are not simply fronts for their Member States. They have a life of their own, which means that wrongful acts over which they had power and control engage their responsibility, and not the responsibility of Member States. Member States do not, and should not, incur responsibility by reason of their membership alone. Deciding otherwise would invite Member State intervention in the affairs of IOs and erode the latter's autonomy, or alternatively, would discourage Member States from setting up IOs that deal with pressing global problems.Footnote 13
The second normative principle is that an individual who has been harmed should have a remedy to have the harm repaired. Ideally, to obtain a remedy, the individual should be allowed to bring a case before a judicial or quasi-judicial mechanism that is endowed with due process guarantees,Footnote 14 against the person who is directly responsible for the harm. However, where it is unclear whether that person is actually bound by international human rights law, and where no adequate mechanisms are made available that allow a claim to be brought against the said person, pressure will arise to bring a claim against another person that is considered as possibly indirectly responsible for the harm. Unfortunately, many IOs qualify as legal persons that are not bound by international human rights treaties, and that are not subject to adequate accountability mechanisms.Footnote 15 These shortcomings do not apply to their Member States, however, which makes the latter, as the persons having constituted the IO, easy targets for individuals aggrieved by IO action.Footnote 16 Such targeting of Member States, however, is in obvious competition with the principle that IOs are autonomous legal persons whose acts are solely attributable to them.
Whereas the IO accountability gap explains why action has been taken against Member States, it is not the aim of this article to generally explore ways of closing the accountability gap, eg through the reinforcement of intra-institutional (quasi-)judicial mechanisms, or through accession to human rights treaties and subjection to international human rights supervision. This article limits itself to examining what course an existing international supervisory human rights body with jurisdiction over States (including IO Member States)—the ECtHR—has steered to reconcile the above-mentioned two principles—one of human rights and another of institutional origin—and whether this course is defensible. As the Court is a human rights court that has jurisdiction over States,Footnote 17 the emphasis will be laid on whether the Court has done sufficient justice to international institutional considerations (the separate legal personality of IOs and their Member States in particular), while nonetheless not turning a blind eye to the rightful demands of individuals harmed by State acts connected to IO activity.
I. THE BOSPHORUS PRINCIPLES
The ECtHR's decision in Bosphorus can be considered as the seminal ECtHR case concerning the responsibility of Member States for the acts of IOs. In Bosphorus, the Court held that the leaser of an aircraft impounded by Ireland on the basis of an European Community (‘EC’) Regulation which was binding on that country, fell within Ireland's jurisdiction and engaged its responsibility under the ECHR: as there was clearly Member State action, it did not matter that the action implemented an EC Regulation and that the Regulation was binding.Footnote 18 The Court famously observed in respect of the transfer of competencies by States to the EC:
Absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention: the guarantees of the Convention could be limited or excluded at will thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards […]. The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention […].Footnote 19
Equally importantly, however, the Court realized the unwelcome consequences of attributing acts of IOs to Member States by virtue of their membership or by reason of some State action involved in (implementing) binding IO acts or decisions. In order to maintain the separate legal personality of IOs, and to forestall Contracting Parties’ challenges to its jurisdiction, while at the same time protecting the legitimate rights of individuals under the Convention, it was held:
In the Court's view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides … If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.Footnote 20
In Bosphorus, the Court did not make it clear at what point Member States' responsibility for the wrongful acts of the IO, under the Convention, is triggered: does the responsibility simply persist in spite of having transferred competences to the IO, irrespective of the human rights guarantees and remedies offered by the IO, or does it only arise in case the IO does not offer equivalent rights protection? Perhaps, States retain responsibility in the sense that they continue to be obliged by human rights norms, but they are not necessarily held liable for the consequences of violations of the norms by IOs ‘as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides.’Footnote 21 Alternatively, if one does not accept the distinction between responsibility and liability,Footnote 22 one could also apply the discourse of ‘circumstances precluding wrongfulness’ featuring in Chapter V of the Articles on State Responsibility per analogiam: Member State action taken in compliance with IO obligations will be justified or excused as long as the IO provides equivalent rights protection.Footnote 23
Whatever the conceptual distinction between the two steps used by the Court in its analysis (the principle of the retention of Convention responsibility after the transfer of competences to an IO, and the principle of equivalent protection), since Bosphorus the Court has consistently held that ‘[i]f such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization.’Footnote 24 If the Member State does more, for example, when it has discretion in implementing the obligations, the presumption of equivalent protection does not apply.Footnote 25
It is conspicuous that ever since the decision in Bosphorus, the Court has presumed that all IOs ‘involved’ in cases before the Court provide equivalent rights protection. In order to be true, this presumption could be rebutted in accordance with the Bosphorus decision: ‘if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.’Footnote 26 This rebuttal condition has proved to be a tall order, however, as no manifest deficiency has so far been shown.
If anything, the Court's approach to the question of Member State responsibility for the acts of IOs guarantees that the Court will only in very exceptional circumstances find a Member State responsible for the acts of IOs. Indeed, the end-result of the practical application of the Bosphorus principles has always been that the State had not violated the Convention. This, in turn, would appear to respect the separate legal personality of the IO to which the State had transferred competencies. Yet, at the same time, it might deprive individuals of their rightful day in court: after all, the Court itself, citing the ‘interest of international cooperation’, noted that equivalent protection is not the same as identical protection.Footnote 27 Nevertheless, Bosphorus does not exclude that Member States of certain IOs could one day be held responsible for the acts of the latter, if these IOs do not provide equivalent rights protection. This, then, would appear to respect the individual's right to a remedy, although it may compromise the autonomy of the organization.
II. POST-BOSPHORUS ECtHR CASE LAW: FROM STATE ACTION TO A STRUCTURAL LACUNA IN GASPARINI
The ECtHR's case law in the wake of Bosphorus broadly respects the principles put forward by the Court. What is conspicuous, however, is that the Court initially derived a requirement of State action from Bosphorus, but gradually relaxed that requirement (Kokkelvisserij),Footnote 28 up to the point of abandoning it altogether and introducing a principle of a ‘structural IO lacuna’ (Gasparini).Footnote 29 The application of a strict State action criterion goes a long way to soothe concerns over holding States responsible by reason of their IO membership alone: after all, such a criterion bases responsibility, at least in part, on a Member State's own action; abandoning it risks negating the separate legal personality of the IO and its Member States, at least if the IO in question does not satisfy the equivalent protection standard.
A requirement of ‘State action’ does not figure prominently in Bosphorus, but it could be derived from the first jurisdictional paragraphs of the Court's assessment in that case. As noted above, the Court held that Ireland's responsibility under the Convention was potentially engaged because it had implemented an EC Regulation on its territory.Footnote 30 In the aftermath of Bosphorus the Court, in a string of cases, invoked the State action requirement to swiftly dispose of cases that targeted an IO decision that was not implemented at the domestic level.
For example, in Boivin, a case concerning Member State liability for an employment dispute between Eurocontrol's Institute of Air Navigation Services (an IO), one of its employees, and a decision of the ILO Administrative Tribunal, the Court held that ‘[a]t no time did [the respondent States] intervene directly or indirectly in the dispute, and no act or omission of those States or their authorities can be considered to engage their responsibility under the Convention.’Footnote 31 Since the employee's complaints were not directed against an act of the respondent States but in fact against a decision of the ILO Administrative Tribunal, the employee did not fall within the jurisdiction of the respondent States, and the claim was considered to be inadmissible.
Similar considerations can be found in Connolly, which concerned an employment dispute between the (then) European Community and an employee.Footnote 32 The dispute had been heard on appeal by the European Court of Justice (‘ECJ’), which had denied the employee's request to submit written observations to the opinion of the Advocate General. In the applicant's view, this denial violated his rights under the ECHR, and he filed a complaint with the ECtHR against fifteen Member States of the European Union. Again the Court held that the complaint was brought against a decision of an (organ of an) IO (the ECJ), and not against the respondent States, which at no time directly or indirectly intervened.Footnote 33 This dictum was confirmed in two other employment disputes between an employee and an IO: Rambus (concerning the European Patent Organization),Footnote 34 and Beygo (concerning the Council of Europe).Footnote 35
Pursuant to Boivin and Connolly, and the case of Bosphorus on which they rest, Member State action is required for the individual aggrieved by an act or a decision of an IO to fall within the respondent Member State's jurisdiction. In such cases, the need to apply the criterion of equivalent protection (ie the second level of the Court's analysis in Bosphorus) does not arise.
The ECtHR does not set the bar for a finding of State action very high, however. The recent judgment in Kokkelvisserij Footnote 36 is a case in point. The problem in Kokkelvisserij was similar to the one in Connolly: the ECJ had denied the applicant permission to submit written observations to the opinion of the Advocate General. However, unlike in Connolly, the case had been brought before the ECJ through the preliminary ruling procedure; the nature of such a procedure is that a national court asks the ECJ for its opinion on a question of European Union (‘EU’) law. For that reason, the ECtHR—before which Kokkelvisserij had brought proceedings on the same grounds as Connolly—held: ‘[The] intervention by the ECJ [was] actively sought by a domestic court in proceedings pending before it. It cannot therefore be found that the respondent party is in no way involved. … It is the domestic court which, finding itself faced with a question of Community law to which it requires an answer in order to decide a case pending before it, seeks the ECJ's assistance in terms of its own choosing.’Footnote 37
Thus, from Kokkelvisserij it could be gleaned that if a State court asks an IO's court for a preliminary ruling on a point of law, by asking that question the State becomes involved in the procedure, and its international responsibility for defects in this procedure could be engaged. Attributing an IO's procedural defects to a Member State by reason of the latter's mere initiation of an institutional procedure, appears to compromise the autonomy and separate legal personalities of an IO and its Member States. Also, it requires a considerable stretching of the conditions of article 60 DARIO to maintain that an EU Member State, by giving its consent to the establishment of, and by subsequently using, the preliminary ruling procedure, seeks to avoid compliance with its international obligations and prompts the EU to commit an internationally wrongful act.
The ECtHR seems to have gone even further in the case of Gasparini.Footnote 38 While in Kokkelvisserij, an intervening act by a State (the question for a preliminary ruling) could be discerned (whatever one thinks of the weight that should be given to this act), in Gasparini there was no such act at all—and still the ECtHR claimed powers of review. Like many pertinent cases before it in the context of Member State responsibility for acts of IOs, Gasparini concerned an employment dispute, in this case between NATO and an employee. Gasparini was of the opinion that in dealing with his case the NATO Appeals Board had not held its session in public, which in his view was a violation of his rights under the ECHR, and filed a complaint with the ECtHR.
Remarkably, the Court did not nor attempt to, identify an action by a State. It distinguished Gasparini from Boivin and Connolly; in the latter cases, only one particular decision taken by the competent organ of the IO was disputed, whereas in Gasparini the applicant alleged a structural lacuna in the IO's internal dispute-settlement mechanism.Footnote 39 This structural lacuna the Court would be entitled to review,Footnote 40 in other words Member States are responsible for the structural lacunae of IOs’ internal procedures. This rather revolutionary finding goes beyond Bosphorus, which indeed sees some State action as a jurisdictional nexus that could trigger the State's responsibility under the ECHR.
Regrettably, the point at which a deficit in an IO's judicial protection system becomes a structural lacuna is not further defined. It therefore remains unclear why the impossibility for an individual to respond to the opinion of the Advocate General of the ECJ (the deficit alleged in Connolly) was not a structural lacuna warranting ECtHR review.Footnote 41 Nonetheless, what is clear after Gasparini is that the Court holds Member States of IOs responsible for internationally wrongful acts of IOs in two scenarios: (1) when a Member State has directly or indirectly intervened in the act/decision of the IO; or (2) when the complaint relates to a structural lacuna in the internal dispute-settlement mechanism. The latter principle in particular is in palpable tension with the principle that Member States should not be responsible for the acts of IOs by reason of their membership alone.
As demonstrated, the threshold used by the ECtHR for a finding of State action may not be particularly high (see Kokkelvisserij), and the Court may even no longer require State action in cases where the plaintiff alleges a structural lacuna as regards rights protection in the IO's internal procedures (see Gasparini). These evolutions may appear undesirable in that they undermine the principle of Member States' limited responsibility and could invite Member State interventions in the IO's affairs. However, as already set out above, the ECtHR has realized the unwelcome consequences of attributing acts of IOs to Member States by reason of their membership or by reason of only some State action involved in the IO's acts or decisions. Only if the IO does not provide ‘equivalent rights protection’, or if rights protection by the IO is ‘manifestly deficient’ will the responsibility of the Member State be engaged.Footnote 42
The Court has so far not yet held that such circumstances were present. It has always deferred to the IO, although at times it has analyzed the quality of internal dispute-settlement procedures in some detail. This policy of deferral is rationalized on the ground that the IO has separate legal personality and is not an ECHR Contracting Party. In Gasparini, for instance, in which the Court (oddly enough, perhaps) offered a detailed analysis of acceptable restrictions of the public character of the debates before the NATO Appeals Board in light of ECtHR jurisprudence, it observed that its powers of review to determine whether the procedure before the NATO Appeals Board—which is an organ of an IO that has separate legal personality and is not a party to the Convention—was manifestly deficient is necessarily less far-reaching (ample) than the powers of review which it exercises over the procedures before the Contracting States' domestic courts.Footnote 43 Not surprisingly, it did not find a manifest deficiency. Part IV, by way of comparison, will inquire whether the Court's standard of review is also stricter in relation to domestic cases brought against IOs (the Waite and Kennedy, Beer and Regan scenario). First, however Part III will discuss a special category of ‘Bosphorus cases’: politically sensitive peace and security-related cases, to which arguably a special regime may or should apply.
III. ECtHR CASE LAW ON ATTRIBUTING ACTS OF UN TERRITORIAL ADMINISTRATIONS AND INTERNATIONAL CRIMINAL TRIBUNALS TO UN MEMBER STATES
A special category of cases before the ECtHR regarding Member State responsibility for acts of IOs is formed by cases brought against UN Member States for their participation in the operation of a UN territorial administration (eg Kosovo) and UN criminal tribunals (eg ICTY). These cases have not been decided in complete accordance with the Bosphorus review standards set out above, which are mainly applicable to private law disputes (such as employment disputes) and may be ill-suited for disputes arising in UN-mandated peace and security operations or international criminal proceedings. Nevertheless, the ratio decidendi of these cases—which were all dismissed for that matter—resembles the rationale for dismissing the cases discussed above: the lack of State action or involvement.
This is perhaps clearest in the case of Beric and others,Footnote 44 where Beric and others held public and political party positions in Bosnia Herzegovina. They were removed by the UN High Representative in Bosnia from their positions, and indefinitely barred from holding such positions, along with running for election. The High Representative held that power pursuant to UN Security Council Resolution 1031 (1995), and a decision of the Bosnia Peace Implementation Council.Footnote 45 Beric and others filed an application against Bosnia with the ECtHR, but the Court dismissed the claims on the grounds that ‘unlike legislation imposed by the High Representative, the individual measures complained of did not require any further procedural steps to be taken by the domestic authorities.’Footnote 46 Reasonably, the Court held that the acts of the UN High Representative were attributable to the UN, and that Bosnia was not involved in the decision to remove Beric and others from their positions.
Similar considerations could be found in the Court's decisions Galic and Blagojevic. In these cases, the applicants complained of a lack of human rights protection guaranteed by the UN International Criminal Tribunal for the former Yugoslavia (‘ICTY’) before which they appeared. As the ICTY has its seat in the Netherlands, they filed an application with the ECtHR. Addressing the applicants’ argument that a voluntary act of the Dutch authorities consisting of entering into, or ratifying, the Headquarters Agreement with the ICTY could be discerned, and that this act could give rise to Member State responsibility on the part of the Netherlands for the acts and omissions of the ICTY, the Court ‘[could not] find the sole fact that the ICTY has its seat and premises in The Hague sufficient ground to attribute the matters complained of to the Kingdom of the Netherlands.’Footnote 47 It added that ‘the Headquarters Agreement is clearly no more than a document intended to give practical effect to actions of the Security Council and subject to its approval; it cannot therefore be considered in isolation.’Footnote 48 In the Court's view, the ICTY was simply a subsidiary organ of the UN Security Council—which had established the ICTY—and, accordingly, all its acts and omissions are attributable in principle to the United Nations.Footnote 49
The eminently sensible decisions in Beric, Galic, and Blagojevic are ultimately based on Bosphorus, but in particular on another peace and security-related ECtHR decision: Behrami and Saramati.Footnote 50 A detailed analysis of this case, which concerned UN Member State liability for NATO/KFOR military operations in Kosovo, a territory administered by the UN Mission in Kosovo (UNMIK), is beyond the scope of this article; it has been amply and critically discussed in the literature.Footnote 51 For our purposes, it is mainly of relevance that the Court clearly distinguished Behrami from Bosphorus:
The Court, however, considers that the circumstances of the present cases are essentially different from those with which the Court was concerned in the Bosphorus case. In its judgment in that case, the Court noted that the impugned act (seizure of the applicant's leased aircraft) had been carried out by the respondent State authorities, on its territory and following a decision by one of its Ministers (§ 137 of that judgment). The Court did not therefore consider that any question arose as to its competence, notably ratione personae, vis-à-vis the respondent State despite the fact that the source of the impugned seizure was an EC Council Regulation which, in turn, applied a UNSC Resolution. In the present cases, the impugned acts and omissions of KFOR and UNMIK cannot be attributed to the respondent States and, moreover, did not take place on the territory of those States or by virtue of a decision of their authorities. The present cases are therefore clearly distinguishable from the Bosphorus case in terms both of the responsibility of the respondent States under Article 1 and of the Court's competence ratione personae.Footnote 52
This means that the troop-contributing Member States were not involved in the impugned action, and could thus not incur responsibility. The Court held instead that the impugned action was, in principle, attributable to the UN, as UNMIK, under whose auspices KFOR and the troop-contributing nations operated, was a subsidiary organ of the UN created under Chapter VII of the Charter,Footnote 53 and as the UN Security Council ‘was to retain ultimate control over the security mission and it delegated to NATO the power to establish, as well as the operational command of, the international presence, KFOR.’Footnote 54
These considerations are hardly convincing, as the UN only rarely has full command or operational control over national contingents. These contingents retain, as State organs, a strong relationship with the State, which continues to exercise command (through the National Force Commander) and control.Footnote 55 Nothing in the case record suggests otherwise in Behrami. In fact, the ILC DARIO—which the ECtHR cited but did not discuss—contemplates the Behrami scenario in article 6,Footnote 56 and makes it clear in the commentary that the State placing its troops at the disposal of the UN for a UN operation incurs responsibility for rights violations if it exercises effective control over the conduct giving rise to the violation.Footnote 57
Ultimately, one cannot square the Court's qualification of a domestic court posing a question for a preliminary ruling to the ECJ as State involvement (Kokkelvisserij), with the Court's failure to discern State involvement in national troops operating under a national commander (Behrami), unless one takes political considerations into account—which the Court in Behrami did:
Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN's key mission in this field including, as argued by certain parties, with the effective conduct of its operations.Footnote 58
As observed above, cases involving peace and security differ from employment cases. This is not because the legally relevant facts are that different, but rather because allowing peace and security-related claims against UN Member States threatens the effective conduct of UN operations (eg UN Member States, aware of the liability risk attached to contributing troops to UN operations, may no longer contribute troops, thereby jeopardizing the future viability of such operations).
The Behrami rationale was cited and applied by the Court in the other cases discussed in this section.Footnote 59 However as already argued, those cases could properly and justifiably be disposed of on the basis of a clear lack of State involvement; the application of an ill-conceived ‘UN control’ standard in these cases should not be seen as decisive.
IV. A COMPARISON WITH CASES AGAINST INTERNATIONAL ORGANIZATIONS BEFORE DOMESTIC COURTS
As noted at the end of Part II, the ECtHR in Gasparini drew a comparison with the stricter article 6 ECHR review exercised over procedures before domestic courts. This reference to domestic procedures is relevant in that complaints against IOs are also sometimes brought before domestic courts; typically in relation to employment disputes against IOs that have their headquarters in the forum State and may avail themselves of immunity from jurisdiction.Footnote 60 These procedures are governed by the ECtHR case of Waite and Kennedy Footnote 61 rather than Bosphorus, as they concern a case against an IO which the applicant has first brought in a domestic court (which has upheld the immunity of the IO before applying to the ECtHR).
Bosphorus and its progeny only control cases in which the applicant directly applies to the ECtHR after (presumably) having exhausted the internal remedies against the IO. In similar cases to Bosphorus, the question of immunity does not arise. Instead, these cases relate to the responsibility of Member States, under the ECHR, for the acts of IOs. Similar cases to Waite and Kennedy, in contrast, do not directly concern Member State responsibility for the acts of IOs, but a possible failure of an ECHR Contracting State to give an individual access to a domestic court in his or her dispute with an IO. Nonetheless, in such cases Member States may be held indirectly responsible for the deficiencies in the internal review mechanisms of an IO in case their domestic courts, facing such deficiencies, unduly uphold the immunity of the IO. As the ECtHR held in Waite and Kennedy, a holding that was later echoed in Bosphorus:
Where States establish international organization in order to pursue or strengthen their cooperation in certain field of activities, and where they attribute to these organizations certain competences and accord them immunities, there may be implications as to protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.Footnote 62
Domestic courts have struggled with the intensity of the review required of them under the standard enunciated in Waite and Kennedy. Some of them have gone quite far and have found that an IO's internal dispute-settlement mechanism did not meet the standards of article 6 ECHR, and have accordingly rejected the IO's immunity claim.Footnote 63 A more far-reaching review may appear to be in line with the ECtHR's dictum in Gasparini, pursuant to which the Court reviews the article 6 ECHR compatibility of procedures before the domestic jurisdictions of ECHR Contracting States thoroughly, ie also beyond a ‘manifest deficiency’. ECHR Contracting States, unlike IOs, have indeed committed themselves to respecting the provisions of the ECHR. At first sight, it may not seem to matter much whether the procedure is brought against an IO or not; what matters might simply be that the procedure is brought before a domestic court.
In Waite and Kennedy, the exact standard of the review is left considerably vague. The Court stated that ‘a material factor in determining whether granting [an IO] immunity from [domestic] jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.’Footnote 64 Whether this ‘reasonable alternative means’ standard is interchangeable with the Bosphorus ‘equivalent protection/manifest deficiency’ standard is unclear, but it can be gleaned from the judgment in Waite and Kennedy that the Court supported at least some deference to the IO:
The Court shares the Commission's conclusion that, bearing in mind the legitimate aim of immunities of international organisations …, the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in such matters would, in the Court's view, thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation.Footnote 65
Pursuant to Waite and Kennedy, perhaps domestic courts should not examine whether an internal dispute-settlement mechanism entirely satisfies the standards of article 6 ECHR, but whether they are expected to go beyond a ‘manifest deficiency’ review.Footnote 66 This may encourage aggrieved individuals to sue an IO before a domestic court if possible, instead of directly applying to the ECtHR. However, it should not be overlooked that aggrieved individuals’ chances of success before the ECtHR have increased considerably after Gasparini, which after all, abandoned the requirement of State involvement in the dispute between the IO and the individual.
V. BOSPHORUS AND ITS PROGENIES VERSUS THE DARIO
In the previous parts, the specific ECtHR regime concerning the responsibility of Member States for the acts of IOs was discussed. The question which now arises is how this regime relates to general international law, which the DARIO purportedly restates. We have already drawn attention to the general problems of DARIO, amongst which is the lack of State and institutional practice. These problems also beset the relevant Part V of DARIO, which governs the responsibility of a State in connection with the act of an IO. The Commentaries to articles 58 to 60 DARIO, which govern respectively State aid/assistance, direction/control, and coercion, even fail to cite any practice. Only in the Commentary to article 61 DARIO, which governs the responsibility of a Member State seeking to avoid compliance, does the ILC cite some practice. Remarkably, the only practice cited in the Commentary were the ECtHR's Bosphorus and Waite and Kennedy cases discussed above.
Therefore, one is tempted to believe that the ILC is of the view that the Court's Bosphorus case law reflects or constitutes general international law on IO Member State responsibility.Footnote 67Arguendo, the pertinent article 61 DARIO would summarize the Court's approach as follows:
1. A State member of an international organization incurs international responsibility if it seeks to avoid complying with one of its own international obligations by taking advantage of the fact that the organization has competence in relation to the subject matter of that obligation thereby prompting the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation.
2. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization.
In this Part, however, it is not an ambition to identify non-ECtHR case law with a view to reconstructing the lex lata on the responsibility of States that have transferred competencies to IOs and have thereby possibly circumvented their international obligations. Rather, it will be assesse (1) whether the conditions for Member State responsibility as set out in article 61 DARIO are indeed also the conditions required by the ECtHR in the Bosphorus line of cases (as is implied by the Commentary to article 61); and (2) whether these conditions are desirable from a legal policy perspective: do they do sufficient justice to the autonomy, and attendant limited liability, of the organization and its constituent Member States?
It is noted first that article 61 DARIO, and all other provisions of Part V DARIO, require some positive action by an IO Member State for it to incur liability: aid/assistance, direction/control, coercion, acceptance, or circumvention. The DARIO does not countenance holding Member States responsible by virtue of their membership alone.Footnote 68 The analysis of relevant ECtHR case law has demonstrated that the Court also embraces these principles. The Court indeed espouses a positive action requirement, at least until the Gasparini case; Member States will only be held responsible if at some time they intervened directly or indirectly in the dispute between the applicant and the IO. They do not incur responsibility by virtue of their IO membership alone.
From a legal policy perspective, allocating responsibility to a Member State in connection with IO activity on the basis of positive State action is defensible. After all, such responsibility may ultimately rest on Member State action rather than on the IO's own conduct. However, this rationale comes under pressure when the State action requirement is construed broadly. As set out, in Bosphorus the ECtHR considered obligatory implementation under EC law as State action, and in Kokkelvisserij it considered a domestic court's reference to the ECJ for a preliminary ruling as State action. Obviously, the rationale loses all its force when the State action requirement is abandoned altogether, as the ECtHR did in Gasparini; a situation where the applicant alleged a structural lacuna as regards procedural rights protection in the IO's internal dispute-settlement mechanism. In Gasparini, the Court has taken a step onto a slippery slope which calls into question the principle that Member States should not be held responsible for the acts of IOs by virtue of their membership alone. This criterion is not contemplated by the DARIO, and should not, as it encroaches on the separate legal personality of the IO and its Member States.
Admittedly, at the level of the ECtHR, this encroachment is mitigated by the Court's application of the equivalent protection standard, which softens the impact of the ‘structural lacuna’ criterion. After all, applying this standard, the Court eventually did not hold the NATO Member States responsible in Gasparini. Still, Gasparini does open the door for allowing Member States to be held responsible for the acts of IOs. It would have been appropriate if the ILC, upon finally adopting the DARIO, would have shut that door, which is open in view of the reference to gasparini in the Commentary to article 60 DARIO.
Despite the criticism that may be levelled at the ECtHR's liberal construction of the State action requirement, and its abandonment of that requirement in Gasparini, it needs to be emphasized again that in no case before the ECtHR was a Member State's liability under the ECHR eventually engaged. This is attributable to the fact that the presence of positive action or a structural lacuna is in itself not conclusive. Indeed, the Court conducts a second-level analysis in that it inquires whether the IO in question can be presumed to provide equivalent rights protection, and if so, whether this presumption can be rebutted on the ground that in the circumstances of the particular case rights protection is manifestly deficient. This high bar may in the end possibly explain why the ILC refers without disapproval to the Bosphorus and gasparini jurisprudence in its Commentary to article 61 DARIO. At the same time, however, given that the ECtHR has never held a Member State liable for the acts of an IO, one may doubt whether article 61 DARIO is applicable at all to the sort of situations which the ECtHR has dealt with so far.Footnote 69
Even if one is of the view that article 61 DARIO does govern Bosphorus-like situations, there are some additional outstanding issues, however. One is whether the psychological or subjective element contained in article 61, an element that is somewhat more pronounced in the later versions of article 61 than in the 2006 version,Footnote 70 also flows logically from the ECtHR's case law. For a Member State to be held responsible under article 61, it is required that the Member State sought to circumvent or avoid compliance with an international obligation. Such circumvention may typically occur when States transfer competencies to an IO, knowing that mechanisms for holding IOs accountable or responsible for wrongful acts are less developed.
In some of the literature, it is argued that the circumvention standard requires that an abuse of a right, an abuse of the separate legal personality of the IO, or bad faith be established.Footnote 71 The Commentary to article 61 DARIO has rejected this however.Footnote 72 The Commentary to then article 60 DARIO (2009) did not set the threshold for a finding of intent to circumvent on the part of the Member State particularly high: ‘An assessment of a specific intent on the part of the Member State of circumventing an international obligation is not required. Circumvention may reasonably be inferred from the circumstances.’Footnote 73 Yet still, one may wonder whether the DARIO requires intent at all: does the statement that ‘[c]ircumvention may reasonably be inferred from the circumstances’ not hint at a standard of ‘constructive knowledge?’ Under the latter standard, Member States may be held responsible if they have failed to inquire whether the IO adequately protects human rights (eg by providing an internal dispute-settlement system that offers adequate due process guarantees) before transferring competencies and becoming a member of the IO.
The constructive knowledge standard may appear to be the standard that is indeed applied by the ECtHR in its case law regarding Member State responsibility, as is evidenced by the Gasparini case.Footnote 74 Whether it is a proper standard is another question. Given that it broadens the responsibility of Member States for the acts of the organization, it may go against the ‘historical trend’ of imposing the responsibility of IOs on the IOs themselves rather than on the Member States.Footnote 75 If one takes the separate legal personality of an IO seriously, a strict ‘abuse of personality’ standard may be preferable.Footnote 76
A second question that deserves reflection relates to the moment when the circumvention of obligations should be assessed: is it at the time the Member State transfers to the IO competencies in the course of which exercise breaches occur, or can a State also be held responsible if it fails to take to task, or even to withdraw from, an IO to which it has already acceded, if it becomes clear that such IO does not offer sufficient human rights protection at some point during its lifespan?
The ECHR case law on this question appears to be contradictory. In Gasparini, the ECtHR considered the time of accession to the IO as the relevant timeFootnote 77 (although, as regards the specific facts of Gasparini, one may wonder how Italy and Belgium, the respondent States in Gasparini, could ascertain whether or not NATO's internal dispute-settlement mechanism violated the provisions of the ECHR, which at the time of those States' accession to NATO was not yet in existence).Footnote 78 In the earlier Bosphorus case, however, the Court stated the following with regards to the temporal dimension:
State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides … However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights.Footnote 79
Thus, under the Bosphorus standard, Member States appear to be required to screen the IO's human rights performance continuously. They are not absolved from responsibility upon acceding to an IO which only at the time of accession provided sufficient human rights guarantees. Instead, any deterioration of human rights protection obliges them to bring pressure to bear on the IO so that it changes its ways.Footnote 80
Article 60 DARIO does not expressly deal with the temporal dimension. Possibly, the reference to a Member State ‘causing the organization to commit an act’ suggests that it is not the time of transferring competencies that is decisive, but the time of causing an IO to commit, or at least not preventing an IO from committing, a specific act during the lifespan of the IO. At the same time, of course, ‘causing’ (‘move to act’, ‘spur to act’, ‘inciting’) may simply refer to the requirement of positive State action discussed above.
However that may be, from a policy perspective, allowing a Member State to be held responsible for an IO's own conduct during its lifetime may tend to negate the separate personality of the IO, especially so when the transfer of competences to the IO dates back many decades, and when, given the structure of the IO, an individual Member State could not influence the conduct which the IO developed over the years.Footnote 81
VI. CONCLUDING REMARKS: THE ECTHR'S CASE LAW AS LEX SPECIALIS OR PRIMARY RULE
It has been discussed above that the ILC DARIO may wrongly assume that all IOs are equal and subject to the same rules of responsibility. This criticism is perhaps not entirely fair. While the ILC may believe that IOs are subject to a common responsibility regime (otherwise the DARIO project would not make sense), the DARIO does contemplate deference to special regimes: article 64 DARIO provides that the DARIO ‘do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or a State for an internationally wrongful act of an international organization, are governed by special rules of international law, including rules of the organization applicable to the relations between the international organization and its members.’
Whether or not the ECtHR's case law is in accordance with article 61 DARIO, and whether or not it is good legal policy may ultimately not matter much. After all, is the ECtHR's case law not to be considered as a ‘primary’ lex specialis vis-à-vis the general ‘secondary’ rules of the DARIO or of any ‘general’ international law on the responsibility of IOs? The reference to the ECtHR’s Kokkelvisserij decision (discussed above) in the new 2011 commentary (6) to article 64 may cause us to give a positive answer to this question. It should be borne in mind in this respect that, as Paasivirta observed, ‘[s]olutions to [IO] responsibility gaps are usually sought at the level of primary rules and subject to case-by-case assessment’, ‘whereas correction has been explored in the sphere of ‘secondary’ [DARIO] rules.’Footnote 82
Article 64 DARIO may authorize any derogation from the responsibility rules as laid down in the DARIO, including article 61, and allow for broader possibilities for holding Member States responsible for acts of IOs, eg on the basis of the Gasparini principle.Footnote 83 While the article appears to relate primarily to relevant principles developed by the IO itself,Footnote 84 the article does not, strictly speaking, exclude that such principles could be developed by an external court with special expertise,Footnote 85 eg in the human rights field. In fact, regardless of whether or not one supports the DARIO, the ECtHR's application of responsibility standards may simply form part of the primary, substantive rules which the court is mandated to interpret and apply, and which trump any secondary responsibility rules.
Whether such an application is desirable from a policy perspective is a different matter altogether. As argued above, Member States should only be held responsible for the acts of IOs in very exceptional circumstances. These circumstances are not present when no positive State action can be discerned (Gasparini).Footnote 86 But, again, at the level of the ECtHR, things are not as opaque as they may seem: the standard of equivalent protection has so far always served as a safety valve to prevent a finding of responsibility of a Member State, even in case State action could be established.
At the same time, this standard does justice to the legitimate interests of the victims—they can engage the responsibility of a Member State in case the IO does not provide equivalent rights protection—while also encouraging IOs to set up their own accountability mechanisms. Indeed, if the bar for finding Member State responsibility were set (artificially) low, the IO could be tempted to rebuff calls for enhanced organizational accountability mechanisms, by pointing out the availability of the State responsibility avenue. Yet as the ECtHR has not set the bar low, it may not only have prevented Member State intervention in the affairs of the IO, but also it may also have influenced the development of human rights awareness within IOs. With regards to the EU, this development is about to culminate in the accession of the EU to the very convention which the ECtHR interprets and applies. Logically, this accession should signify a shift from the application of a standard of equivalent rights protection to a standard of identical rights protection, or, put differently, the closing of any remaining accountability gap in respect of the activities of the EU as an IO.
