CYIL vol. 8 (2017)

TOMÁŠ FECÁK CYIL 8 ȍ2017Ȏ In some situations, the application of the general rules would lead to responsibility of the Union (scenario 1), in others it would lead to responsibility of the Member State [scenario 3 and probably also scenarios 2(b) and 2(c)], while there could also be instances of primary responsibility of the Member State and derived responsibility of the Union [in particular scenario 2(a)]. Further complications could arise if the Union concluded an investment agreement alone, without participation of the Member States. If the EU is the only contracting party to the agreement with a third country, it can be argued that only the EU can be held internationally responsible for violations thereof, as the Member States have not directly assumed any international obligations vis-à-vis the respective third country. 21 At the same time, given that the attribution of the internationally wrongful act is also a necessary condition for international responsibility to arise, it seems debatable, to say the least, whether the EU can be held responsible for breaches of such agreement by conduct which is solely attributable to a Member State − a scenario which is perfectly conceivable under future EU IIAs, were these concluded by the Union alone. The situation described reveals a potentially significant loophole in the system of responsibility of international organizations as codified by DARIO, which does not seem to have been sufficiently addressed in the international practice yet. 22 The calls for recognition of special rules applicable to international responsibility of the Union reflecting its unique features have been heard at least partly. In its 2009 session, the ILC incorporated in the preliminary version of DARIO a new Article 63 (corresponding to Article 64 of the latest 2011 version of DARIO) which explicitly acknowledges the possibility of special rules governing the responsibility of an international organization, which may depart from the general regime. Article 64 titled ‘Lex specialis’ reads as follows: These draft articles 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 of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members. Special rules relating to international responsibility may supplement more general rules articulated in the DARIO or may replace them, in whole or in part. 23 As stated by the ILC in its commentary to this provision, it would be impossible to try and identify each of the special rules and their scope of application. The commentary specifically refers to a variety 21 Yet, this debate might involve difficult questions concerning modes and consequences of transfer of competences by a state to international organization of which it is a member. Is it not possible for an international organization, which has acquired certain competence from its member states, to create direct international obligations of these member states vis-à-vis third countries? If we took the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986), which has never entered in force, as a reflection of customary international law on this question, the answer would be no. According to Article 34 of the Convention, “A treaty does not create either obligations or rights for a third State or a third organization without the consent of that State or that organization”. A ‘third state’ is defined as a “State not a party to the treaty.” In its commentaries to this Article, the ILC explained that the principle laid down was “only the expression of one of the fundamental consequences of consensuality”. See: UN International Law Commission, Draft articles on the law of treaties between States and international organizations or between international organizations with commentaries. 1982. Text adopted by the International Law Commission at its thirty-fourth session, in 1982, p. 42. 22 See also DIMOPOULOS, supra n. 8, at 1684-1686. 23 ILC commentaries, supra n. 18, at 100.

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