Over the past sixty years, there has been an exponential growth in the number, scope, and influence of international organizations. This growth has greatly expanded the capacity of international organizations to commit acts that detrimentally affect the interests of States or individuals. As a result, it has become necessary to decide who is responsible, and liable to provide compensation, when an organization breaches international law. Reflecting this concern, the International Law Commission (“ILC”), in response to a request by the United Nations General Assembly, has begun drafting articles to codify the rules on the responsibility of international organizations. One of the most difficult issues under consideration by the ILC in this context is whether Member States bear secondary or concurrent liability to third parties for the acts of an international organization. The terms secondary liability and concurrent liability are used throughout this Note to refer to the attribution of responsibility to a State merely by virtue of its member-ship in an international organization. These forms of liability stand in contrast to the liability a State may incur for its own acts that breach international law.
In July 2006, the Drafting Committee of the ILC Working Group on Responsibility of International Organizations adopted draft articles dealing with the liability of Member States. These draft articles outline various situations in which the conduct of a Member State can cause it to become liable for the act of an international organization. However, the draft articles do not support the imposition of liability on Member States by virtue of membership alone. While the Working Group considered a wide range of matters in reaching this conclusion, some emphasis was placed on the policy consideration that secondary or concurrent liability would interfere with the autonomy of international organizations by encouraging interference from the Member States.
This policy consideration has been referred to so frequently in the literature on secondary and concurrent liability that it has obtained almost axiomatic status. It is often placed alongside a related concern that secondary or concurrent liability would undermine the separate personality of international organizations. The purpose of this Note is to examine whether these policy considerations provide a sound basis for denying secondary or concurrent liability. Part I of this Note clarifies the meaning of secondary and concurrent liability and distinguishes those concepts from other forms of liability a State may incur for the acts of an international organization. Part II outlines the views of the commentators who have contended that secondary or concurrent liability would be detrimental to the separate personality and independence of international organizations. Part III demonstrates that the effect of secondary or concurrent liability of Member States on the personality or independence of international organizations has been exaggerated. It does not follow from this conclusion that a general principle of Member State liability must be recognized under international law. However, unsubstantiated claims about a detrimental impact on the personality or independence of international organizations should not be permitted to influence the ILC deliberations on the legal question of secondary or concurrent liability. . . .
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