The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations - An Appraisal of the ‘Copy-Paste Approach’

International Organizations Law Review, Vol. 9, 2012

Amsterdam Law School Research Paper No. 2012-98

Amsterdam Center for International Law No. 2012-14

14 Pages Posted: 31 Oct 2012 Last revised: 1 Nov 2012

See all articles by Christiane Ahlborn

Christiane Ahlborn

Amsterdam Center for International Law

Date Written: October 30, 2012

Abstract

In view of the adoption and future reception of the Articles on the Responsibility of International Organizations (ARIO) on second reading, this contribution seeks to offer some reflections on the ‘copy-paste narrative’ that has characterized the process of drafting the ARIO. On the basis of a brief introduction to the concept of analogies in international law (Section 1), it is explained that the use of analogies is not to be equated with a mechanical exercise of copy-pasting legal rules; rather, it constitutes a method of legal reasoning based on a principled assessment of relevant similarities and differences. By comparing both sets of Articles drafted by the ILC, it will be demonstrated that the ARIO actually do not follow the example of the ASR in many key provisions. Interestingly, much of the critique of the ARIO has been directed against these dissimilar provisions, especially when they concern the relations between an international organization and its member States (Section 2). Since this critique is mainly driven by considerable uncertainty as to the determination of the responsible actor(s), it will be suggested that the ILC should have used closer analogies with the ASR in order to enhance the overall coherence of the law of international responsibility (Section 3). This is because, as argued in conclusion, the corporate complexity of international organizations and States may necessitate a unified set of Articles on International Responsibility (Section 4).

Keywords: international law, analogies, international responsibility, international organizations, member states, international law commission (ILC), ARIO, shared responsibility, rules of the organization, attribution

JEL Classification: K33

Suggested Citation

Ahlborn, Christiane, The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations - An Appraisal of the ‘Copy-Paste Approach’ (October 30, 2012). International Organizations Law Review, Vol. 9, 2012; Amsterdam Law School Research Paper No. 2012-98; Amsterdam Center for International Law No. 2012-14. Available at SSRN: https://ssrn.com/abstract=2168628

Christiane Ahlborn (Contact Author)

Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/c.s.ahlborn/

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