¹ Wilde, R, ‘Enhancing Accountability at the International Level: The Tension Between International Organization and Member State Responsibility and the Underlying Issues at Stake’ (2006) 12 ILSA J of Intl and Comp L 395, 401Google Scholar.

² Institut de Droit International, ‘The Legal Consequences for Member States of the Non-Fulfilment by International Organizations of Their Obligations Toward Third Parties’ (1996) 66-II Annuaire de L'Institut de Droit Intl 445Google Scholar, art 6(a).

³ ILC, Report of the Law Commission on the Work of its Sixty-Third Session', UN Doc A/CN.4/L.77, UN GAOR 66th Sess (2009) art 62, Commentary no (2).

⁴ ILC, DARIO, Part V, arts 58–62.

⁵ See, eg Stumer, A, ‘Liability of Member States for Acts of International Organizations: Reconsidering the Policy Objections’ (2007) 48 Harvard Intl LJ 553Google Scholar. Narula, S, ‘The Right to Food: Holding Global Actors Accountable Under International Law’ (2006) 44 Columbia J of Transnatl L 691Google Scholar.

⁶ See for a general discussion: Wouters, J, Brems, E, Smis, S and Schmitt, P (eds), Accountability for Human Rights Violations by International Organizations (Intersentia 2010)Google Scholar.

⁷ cf d'Aspremont, J, ‘The Limits to the Exclusive Responsibility of International Organizations’ (2007) 1 Human Rights and Intl L Discourse 217, 223Google Scholar : ‘[I]t is anything but clear that such a principle can be transposed at a universal level. Also ILC, Fifty-Eighth Session ‘Responsibility of International Organization’, (2006) A/CN4/568/14, Comment by the International Criminal Police Organization (II.F) (submitting that ‘there exists no international practice that would support a finding that a derogating customary rule of international law has evolved, entailing that a State is also responsible for internationally wrongful acts of an international organization of which it is a member’, and that the responsibility of member States would only be engaged if the organization was ‘substantially indistinguishable’ from them).

⁸ DARIO, art 61: ‘Circumvention of international obligations of a State member of an international organization. 1. A State member of an international organization incurs international responsibility if, by taking advantage of the fact that the organization has competence in relation to the subject-matter of one of the State’s international obligations, it circumvents that obligation by causing the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation. 2. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization.’

⁹ See, eg R McCorquodale, ‘International Organizations and International Human Rights Law: one Giant Leap for Humankind’ in KH Kaikobad and M Bohlander (eds), International Law and Power: Perspectives on Legal Order and Justice: Essays in Honour of Colin Warbrick (Nijhoff 2009) 141, 148: regretting that ‘there is almost no substantial evidence provided by the ILC to support its view that the general principles of State responsibility are applicable automatically to international organizations.’

¹⁰ Memo on the ILC's DARIO to the US State Department's Advisory Committee on International Law, 21 June 2010, available at <http://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__faculty__faculty_profiles__jalvarez/documents/documents/ecm_pro_066900.pdf>. See also J Alvarez, ‘Misadventures in Subjecthood’, EJIL Talk, 29 September 2010.

¹¹ See on the application of general international law by the ECtHR: Vanneste, F, General International Law before Human Rights Courts: Assessing the Specialty Claims of International Human Rights Law (Intersentia 2010)Google Scholar.

¹² See eg McCorquodale (n 9) 143–145.

¹³ The argument is made at length in C Ryngaert and H Buchanan, ‘Member State Responsibility for the Acts of International Organizations’ 7 Utrecht L Rev 2011 (forthcoming). See also Paasivirta, E, ‘Responsibility of a Member State of an International Organization: Where Will It End?’ (2010) 7 Intl Organizations LR 49, 50–51Google Scholar (2010) (arguing that the imposition of responsibility on member States rather than on the international organization itself is a ‘strong disincentive for trusting common tasks for international organizations’ and ‘could also deter the organizations from developing means to address the wrongs resulting from their own acts.’

¹⁴ See notably the ECtHR's decision in Golder v United Kingdom [1975] 1 EHRR 524, in which it considered the right of access to a court to be part of the right to a fair trial under art 6(1) ECHR.

¹⁵ See on the elusive theoretical basis for IO responsibility under international law, amongst others, Klabbers, J, An Introduction to International Institutional Law (CUP 2009) 284CrossRefGoogle Scholar. Note, however, that art 6(2) of the (new) Treaty on European Union and Protocol 14 ECHR (which amends art 59(2) ECHR) now provide for possible EU accession to the ECHR. After accession, the ECtHR may serve as a human rights accountability mechanism in respect of the EU.

¹⁶ In the literature, this desire to close a real accountability gap, especially in the human rights field, has usefully been characterized as a ‘moral motivation’. See Paasivirta (n 13) 55.

¹⁷ See art 45 ECHR: ‘The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the present Convention’ (emphasis added), in conjunction with art 1 ECHR.

¹⁸ Bosphorus v Ireland, Application No 4036/98 (2006) 42 EHRR 1, para 137: ‘In the present case it is not disputed that the act about which the applicant complained, the detention of the aircraft leased by it for a period of time, was implemented by the authorities of the respondent State on its territory following a decision to impound of the Irish Minister for Transport. In such circumstances the applicant company, as the addressee of the impugned act fell within the ‘jurisdiction’ of the Irish State, with the consequence that its complaint about that act is compatible ratione loci, personae and materiae with the provision of the Convention.’

¹⁹ ibid para 154.

²⁰ ibid paras 155–156 (citations omitted).

²¹ ibid para 155.

²² ibid para 154. In fact, it seems that the Court itself uses responsibility and liability interchangeably. In para 154, the Court first recognizes ‘that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention’, and states in the same breath that ‘[t]he State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention’ (emphasis added).

²³ The ECtHR, in Bosphorus (n 18) para 155, indeed held that ‘State action taken in compliance with such legal obligations is justified as long as the relevant organization [provides equivalent rights protection]’ (emphasis added). However, as the Court has abandoned the requirement of State action in the Gasparini case (n 26), the ‘justification’ argument loses some of its strength.

²⁴ ibid para 156.

²⁵ ibid para 157: ‘It remains the case that a State would be fully responsible under the Convention for all acts falling outside its strict legal obligations.’

²⁶ ibid. The establishment of the presumption and the rebuttal of the presumption are supposed to be two distinct stages of analysis. At times, however, the first collapses into the second: see the case of Gasparini v Italy and Belgium, Application No 10750/03, Judgment of 12 May 2009, which may lend credence to the argument that the Court presumes all IOs to provide equivalent protection anyway.

²⁷ Bosphorus (n 18) para 155: ‘By “equivalent” the Court means “comparable”; any requirement that the organisation's protection be “identical” could run counter to the interest of international cooperation pursued.’

²⁸ Kokkelvisserij v the Netherlands, Application No 13645/05, Judgment of 20 January 2009.

²⁹ Gasparini (n 26).

³⁰ ibid para 137.

³¹ Boivin v 34 Member States of the Council of Europe, Application No 73250/01, Judgment of 9 September 2008, p 7 of the Word version uploaded on HUDOC, available at <www.echr.coe.int>. This is a translation of the original French version, which states: ‘[La Court] constate qu'à aucun moment la France ou la Belgique ne sont intervenues, directement ou indirectement, dans ce litige, et ne relève en l'espèce aucune action ou omission de ces Etats ou de leurs autorités qui serait de nature à engager leur responsabilité au regard de la Convention.’ See for a similar consideration in a case involving an IO (the International Olive Council), its employee, and the ILOAT: Lopez Cifuentes v Spain, Application No 18754/06, Judgment of 7 July 2009, para 28.

³² Connolly v 15 Member States of the European Union, Application No 73274/01, Judgment 9 December 2008.

³³ ibid: ‘La Cour note que seuls les organes communautaires, à savoir l'AIPN, le TPICE et la CJCE, ont eu à connaître du contentieux opposant le requérant à la Commission européenne. Elle constate qu'à aucun moment l'un ou l'autre des Etats mis en cause n'est intervenu, directement ou indirectement, dans ce litige, et ne relève en l'espèce aucune action ou omission de ces Etats ou de leurs autorités qui serait de nature à engager leur responsabilité au regard de la Convention. On ne saurait donc dire que le requérant, en l'espèce, relève de la «juridiction» des Etats défendeurs au sens de l'article 1 de la Convention. La Cour estime qu'en conséquence les violations alléguées de la Convention ne sauraient être imputées aux Etats mis en cause dans la présente affaire.’ (section en droit)—decision only available in French).

³⁴ Rambus v Germany, Application No 40382/04, Judgment of 16 June 2009.

³⁵ Beygo v 46 Member States of the Council of Europe, Application No 36099/06, Judgment of 16 June 2009.

³⁶ Kokkelvisserij (n 28).

³⁷ ibid pp 18 and 20 respectively.

³⁸ Gasparini (n 26).

³⁹ ibid p 4: ‘[d]e manière générale, le requérant fait grief à la Belgique, en tant que pays hôte de l'OTAN, et à l'Italie, dont il est ressortissant, de n'avoir pas veillé à ce que l'Organisation, au moment de sa création, mette en place un système juridictionnel interne compatible avec les exigences de la Convention; 7.

⁴⁰ ibid p 7.

⁴¹ See also T Lock, ‘Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’ (2010) IO Human Rights L Rev 529, 539 (submitting that Connolly concerned a structural deficit, as the Statute of the ECJ and its Rules of Procedure did not allow the applicant to respond to opinions of the AG, rather than an independent decision by an organ of an IO, and accordingly that the Gasparini principle should already have been applied to Connolly).

⁴² Bosphorus (n 18) paras 156–157.

⁴³ Gasparini (n 26) pp 8–9: the Court stating that ‘son contrôle en vue de déterminer si la procédure devant la CROTAN [NATO Appeals Board], organe d'une organisation internationale ayant une personnalité juridique propre et non partie à la Convention, est entachée d'une insuffisance manifeste est nécessairement moins ample que le contrôle qu'elle exerce au regard de l'article 6 sur les procédures devant les juridictions internes des Etats membres de la Convention, lesquels se sont obligés à en respecter les dispositions …’

⁴⁴ Beric and others v Bosnia and Herzegovina, Application Nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, Judgment of 16 October 2007.

⁴⁵ ibid para 26.

⁴⁶ ibid para 29.

⁴⁷ Galić v the Netherlands, Application No 22617/07, Judgment of 9 June 2009, and Blagojević v the Netherlands, Application No 49032/07, Judgment of 9 June 2009, para 46.

⁴⁸ ibid para 48.

⁴⁹ ibid para 35. There is an interesting reference in the decision on the Bosphorus second-level standard of equivalent protection, where the Court held that ‘basic legal provisions governing [the ICTY]'s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees’. (ibid para. 46). Not too much should probably be made of this, however.

⁵⁰ Behrami v France and Saramati v France, Germany and Norway, Application Nos 71412/01 & 78166/ 01, Judgment of 2 May 2007.

⁵¹ See eg Milanovic, M and Papic, T, ‘As Bad As It Gets: the European Court of Human Rights's Behrami and Saramati Decision and General International Law’ (2009) 58 ICLQ 267CrossRefGoogle Scholar; Sari, A, ‘Jurisdiction and Responsibility in Peace Support Operations’ (2008) 8 Human Rights L Rev 151CrossRefGoogle Scholar; Dannenbaum, T, ‘Translating the Standard of Effective Control Into a System of Effective Accountability: how Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’ (2010) 51 Harvard Intl L J 113Google Scholar.

⁵² Behrami (n 50) para 151.

⁵³ ibid para 143.

⁵⁴ ibid para 135.

⁵⁵ cf Sari (n 51) 159–160; Dannenbaum (n 51) 142–151.

⁵⁶ ‘The conduct of an organ of a State or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct.’ (emphasis added).

⁵⁷ See also DARIO, commentaries (4) and (5) to art 7.

⁵⁸ Behrami (n 50) para 149.

⁵⁹ cf Beric (n 44) para 29; Galic and Blagojevic (n 47) para 39.

⁶⁰ See for an overview Ryngaert, C, ‘The Immunity of International Organizations before Domestic Courts: Recent Trends’ (2010) 7 Intl Organizations L Rev 121CrossRefGoogle Scholar.

⁶¹ Waite and Kennedy v Germany, Application No 26083/94, Judgment of 18 February 1999.

⁶² ibid para 67.

⁶³ See eg the Belgian cases of L.M. v Secretariat General of the ACP Group of States, 4 March 2003, Journal des Tribunaux 2003, 684, and Siedler v WEU, Oxford Reports on International Law in Domestic Courts, ILDC 53 (BE 2003).

⁶⁴ Waite and Kennedy (n 61) para 68.

⁶⁵ ibid para 72.

⁶⁶ Some authors have supported a more far-reaching qualitative review. See eg Reinisch, A, ‘The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals’, (2008) 7 Chinese J of Intl L 285, 299–300Google Scholar; Reinisch, A and Weber, UA, ‘In the Shadow of Waite and Kennedy: the Jurisdictional Immunity of International Organizations, the Individual's Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’ (2004) 1 Intl Organizations L Rev 59CrossRefGoogle Scholar.

⁶⁷ It is noted that arts 58 and 60 DARIO deal with State responsibility in general. DARIO, art 62—the last article of Part V—does deal with member State responsibility, but only addresses the very specific situation of a member State having accepted responsibility for an internationally wrongful act of an IO, or of a member State having led the injured party to rely on the member State's responsibility. These specific situations are not further discussed here.

⁶⁸ DARIO, Commentary (2) to art 62, p 267: ‘membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act.’

⁶⁹ Kuijper, PJ, ‘Introduction to the Symposium on Responsibility of International Organizations and of (Member) States: Attributed or Direct Responsibility or Both?’ (2010) 7 Intl Organizations L Rev 9, 29Google Scholar.

⁷⁰ At the time, the circumvention standard was laid down in art 28 DARIO 2006 (adopted at the 58th session), UN Doc A/CN4/L687: ‘International responsibility in case of provision of competence to an international organization: 1. A State member of an international organization incurs international responsibility if it circumvents one of its international obligations by providing the organization with competence in relation to that obligation, and the organization commits an act that, if committed by that State, would have constituted a breach of that obligation. 2. Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization.’

⁷¹ Paasivirta (n 13) 59–60; Kuijper (n 69) 29.

⁷² DARIO, Commentary no (7) to art 60.

⁷³ DARIO, Commentary no (2) to art 60.

⁷⁴ cf Gasparini (n 26) p 7: stating, in respect of Italy and Belgium having transferred competencies to NATO, that ‘il lui faut en réalité déterminer si, au moment où ils ont adhéré à l'OTAN et lui ont transféré certains pouvoirs souverains, les Etats défendeurs ont pu, de bonne foi, estimer que le mécanisme de règlement des conflits du travail interne à l'OTAN n'était pas en contradiction flagrante avec les dispositions de la Convention.’

⁷⁵ I use the expression of Paasivirta (n 13) 50–51.

⁷⁶ See at length on abuse of personality: d'Aspremont, J, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 Intl Organizations L Rev, 91–119CrossRefGoogle Scholar.

⁷⁷ Gasparini (n 26) p 7.

⁷⁸ Italy and Belgium are founding members of NATO and original parties to the ECHR. The North Atlantic Treaty, establishing NATO, was adopted on 4 April 1949 and came into force on 24 August 1949, after the deposition of the ratifications of all signatory states. The ECHR was adopted on 4 November 1950 and entered into force on 3 September 1953. That said, both documents were negotiated at the same time, and it is unlikely that Italy and Belgium, when acceding to NATO, were not aware of the content of the ECHR and its imminent adoption.

⁷⁹ Bosphorus (n 18) para 155. Legal obligations are the obligations and the IO’s legal regimes.

⁸⁰ The apparent contradiction between Gasparini and Bosphorus in respect of the time of assessing circumvention may be explained by the fact that Bosphorus concerned the action of a member State implementing obligations which it held vis-à-vis the IO, whilst in Gasparini no intervening act of a member State could be discerned: the impugned act was performed in its entirety by the IO itself. But it is doubtful whether the criterion of State action is a relevant one in this context. After all, the Bosphorus dictum quoted above relates to the second level of the Court's analysis concerning member State liability for the acts of IOs. At this level, the Court does not examine whether an intervening act of a member State occurred, or whether a structural lacuna in the IO's dispute-settlement mechanism could be identified, but whether the IO provides equivalent protection. Compare Lock (n 41) 539: submitting that ‘the crucial time for the Court's assessment of the presumption applies or not must be the time of the alleged violation and not the time of accession to the organisation’ and also citing Bosphorus in this respect.

⁸¹ See also Paasivirta (n 13) 53: ‘It seems troublesome that Member States should as a rule bear responsibility for the acts of the organization on the ground that they have in the past transferred competence to the organization, especially if such transfer of competence originates in a distant past.’

⁸² ibid 60.

⁸³ It is of note that DARIO, Commentary no 5 to art 64 cites the Bosphorus case. But this citation does not have the effect of recognizing the ECtHR's approach as lex specialis: in fact, the reference is precisely to deny the lex specialis character of another rule, the special rule on attribution to the effect that, in the case of a European Union act binding a member State, State authorities would be considered as acting as organs of the Union. DARIO, Commentary nos (2)–(5) to art 64 (the Commentary still refers to ‘the Community’). Indeed, as described above, in Bosphorus the Court precisely rejected this rule and held that a member State act implementing an EC Regulation does fall within the Court's jurisdiction. Bosphorus (n 18) para 137. And, after all, Bosphorus is widely cited in art 61 DARIO, as an application of the general rule.

⁸⁴ See notably DARIO, Commentary no (8) to art 64.

⁸⁵ DARIO, art 64 states that special rules of international law include rules of the organization which suggests that there could be such special rules that are not developed by the organization. In fact, in relation to the special rule applying to EU Member State responsibility, the ILC cited case law of the European Commission of Human Rights, the ECtHR, and a WTO panel. DARIO, Commentary nos (3)–(5) to art 64. But in all fairness, one should admit that the said rule was developed first by the EU (EC) itself, and that the ILC only examined whether this rule was confirmed by the practice of external mechanisms.

⁸⁶ Paasivirta (n 13) 61, interestingly observed that ‘Article 61, and its emphasis on the intent to evade obligations as a condition for Member State responsibility, is perhaps best understood as introducing a new primary rule, rather than as codifying a secondary rule of responsibility.’ In the author's view, however, if Gasparini is anything to go by, the ECtHR rather appears to be moving in the other direction.