CYIL 2010

CODIFICATION AND PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW Unfortunately, other cases that might have provided us with important guidance on the issue were dismissed already in the preliminary stage and did not lead to rulings on merits. These were the Banković case at the European Court of Human Rights and the case of legality of use of force at the International Court of Justice. Like case law, other examples of practice of States and organizations present a mixed picture. In some cases, the State acknowledged its responsibility and paid compensation even though the act was committed in the context of an operation under the auspices or coordination of an international organization. To remove this ambiguity, we urgently need clear-cut rules. In our opinion, the solution is to respect the separate legal personalities of the international organization and its member State, on the understanding that in certain cases it may be necessary to pierce the corporate veil of the international organization. However, the member State implementing an act of an international organization would incur responsibility only in the following cases: (i) In implementing an act of an international organization, the State has exceeded the scope of conduct attributable to the international organization; or (ii) The State was involved in the implementation of an act of an international organization which manifestly exceeded the authority of the organization, that is, a manifest ultra vires act; or (iii) The State was directly involved in the implementation of an act of an international organization which constituted a serious breach of a jus cogens obligation. The first case reflects, mutatis mutandis, the rule formulated in the Bosphorus judgment. A State cannot hide behind the responsibility of an international organization if, in the process of implementing an act of the organization, it exceeded the scope of conduct attributable to the international organization. In the second case, the conduct is only seemingly that of an international organization, because it constitutes a manifest excess of the organization’s authority. Here, the conduct constituting the ultra vires act is different from the conduct described in draft Article 7. What happens here is an overall deviation from the framework of the (functional) legal personality of the international organization. However, to attribute such conduct to the State (no matter whether or not the international organization itself incurs any degree of responsibility), it is necessary to prove that the organization’s authority has been manifestly violated. In other words, the standard applied here, that is manifest violation, is the same as in the case of invalidity of treaties in terms of Article 46 of the Vienna Convention of 1986. Finally, in the third case, the situation seems even more complicated. Judging from the draft articles adopted by the Commission in the first reading, an international organization may incur responsibility for a serious breach of a jus cogens obligation. However, this does not preclude the responsibility of a State in cases where the State took direct and active steps to implement the wrongful act. The conduct, by itself,

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