Abuse of the Legal Personality of International Organizations and the Responsibility of Member States
International Organizations Law Review, Vol. 4, pp. 91-119, 2007
29 Pages Posted: 9 Sep 2008 Last revised: 28 Apr 2011
Date Written: September 9, 2008
It is classically contended that when an international organization endowed with international legal personality commits an international wrongful act, the organization is to be held exclusively responsible even though the act would have constituted a violation of its member states' obligations if committed by them. This Article intends to depart from such a rigid interpretation of the responsibility of international organization and makes the argument that when member states abuse the international legal personality of an international organization through the exercise of an excessive control over the decision-making process of the organization, they must be held, together with the organization, responsible for violations of international law by the organization provided that such a wrongful act would also constitute a breach of the member states' international obligations if committed by them. It is posited here that, in this situation, member states can no longer hide behind the screen of the international legal personality of the organization. Failing to take the extent of control exercised by member states over the decision-making process of an international organization into account boils down to ignoring that autonomy is one of the constitutive elements of the legal personality of an international organization, which can bolster the contemporary move away from international institutionalism.
Keywords: International Organizations, Responsibility, Member State, International Law Commission, Legal Personality, Autonomy, Coercion, Direction and Control, DARIO, Draft Articles on the Responsibility of International Organizations, Attribution of Responsibility, Indirect Responsability
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