Responsibility of International Organizations. Essays in Memory of Sir Ian Brownlie. Edited by. Maurizio Ragazzi M A R T I N U S NIJHOFF PUBLISHERS

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1 Responsibility of International Organizations Essays in Memory of Sir Ian Brownlie Edited by Maurizio Ragazzi M A R T I N U S NIJHOFF PUBLISHERS LEIDEN BOSTON 2013

2 Library of Congress Cataloging-in-Publication Data Responsibility of international organizations : essays in memory of Sir Ian Brownlie / edited by Maurizio Ragazzi. p. cm. Includes bibliographical references and index. ISBN (hardback : alk. paper) ISBN (e-book) 1. Tort liability of international agencies. 2. Government liability (International law) I. Brownlie, Ian. II. Ragazzi, Maurizio. K967.5.R dc This publication has been typeset in the multilingual Brill" typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see ISBN (hardback) ISBN (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

3 CONTENTS Editor s Preface... Sir Ian Brownlie Summary Biography and Select Bibliography... Contributors... Table of Cases... Table of Documents... List of Abbreviations... xi xv xix xxv xxxi xliii PART ONE SETTING THE STAGE International Organizations Responsibility between Codification and Progressive Development 1. Some Reflections on Basic Issues Concerning the Responsibility of International Organizations... 3 Antonio Augusto Can^ado Trindade 2. The Processes of Law-Making: The Law Relating to International Organizations as an Example Kenneth Keith 3. Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC s Work Product Sean D. Murphy 4. International Organizations Are Definitely Not States. Cursory Remarks on the ILC Articles on the Responsibility of International Organizations Alain Pellet

4 vi CONTENTS 5. 'Weighing' the Articles on Responsibility of International Organizations Michael W ood PART TWO ASSESSING THE COMMISSION'S APPROACH State Responsibility and Responsibility o f International Organizations (i) General Considerations 6. An Assessment of the ILC s Articles on the Responsibility of International Organizations C.F. Amerasinghe 7. International Organizations and State Responsibility Dan Sarooshi 8. Viability of the ILC s Articles Formulated on the Basis of the Articles on State Responsibility Chusei Yamada (ii) Comparing the Two Sets of Articles 9. Parallel Worlds, Parallel Clauses: Remarks on the Relationship betw een the Two Sets of ILC Articles on International Responsibility and the UN Charter Maurizio Arcari 10. An Uneasy Transition? Linkages between the Law of State Responsibility and the Law Governing the Responsibility of International Organizations Vincent-Joel Proulx 11. W ithin and Beyond M utatis Mutandis Tullio Scovazzi (iii) Lex Specialis/Rules of the Organization 1 2. The Role of Lex Specialis in the Articles on the Responsibility of International Organizations Kristen E. Boon

5 CONTENTS v ii 13. Reflections on the Scope of Application of the Articles on the Responsibility of International Organizations Arnold N. Pronto 14. Practice as a Relevant Factor for the Responsibility of International Organizations Emmanuel Roucounas PART THREE PARTICULAR PERSPECTIVES International Organizations and Other Entities (i) United Nations and Other International Organizations 15. The ILC s Articles Seen from a WHO Perspective Gian Luca Burci and Clemens Feinaugle 16. European Exceptionalism in International Law? The European Union and the System of International Responsibility Jose M anuel Cortes Martin 17. ILC Articles on Responsibility of International Organizations: The Interplay between the Practice and the Rule (A View from the United Nations) Daphna Shraga (ii) International Financial Institutions 18. United in Joy and Sorrow: Some Considerations on Responsibility Issues under Partnerships among International Financial Institutions Laurence Boisson de Chazournes 19. Codification, Progressive Development or Innovation? Some Reflections on the ILC Articles on the Responsibility of International Organizations Ross Leckow and Erik Plith 20. The World Bank and the ILC s Project on the Responsibility of International Organizations... Maurizio Ragazzi 235

6 v iii CONTENTS (iii) Other Entities 21. The Responsibility of International Organizations: Selected Reflections from the Perspective of a Former Legal Counsel to the Holy See Robert John Araujo 22. The Elusive Allocation of Responsibility to Informal Organizations: The Case of the Quartet on the Middle East John Dugard and Annemarieke Vermeer-Kunzli 23. Attribution of Conduct after the Advisory Opinion on the Global Mechanism Rutsel Silvestre J. M artha PART FOUR SPECIAL CONCERNS Selected Issues Regarding the Articles (i) Responsibility and M ember States 24. Responsibility of M ember States towards Third Parties for an Internationally Wrongful Act of the Organization Kazuhiro Nakatani 25. Exploring Alternative Routes: The Obligation of Members to Enable the Organization to Make Reparation Paolo Palchetti 26. The Responsibility of International Organizations and Their M ember States Pavel Sturma 27. M ember Responsibility and the ILC Articles on the Responsibility of International Organizations: Some Observations Sienho Yee

7 CONTENTS ix (ii) Responsibility and the Courts/Counterm easures 28. Responsibility of International Organizations and Justiciability of Disputes Sergio Puig 29. Responsibility of International Organizations: W hat Role for the International Court of Justice? Hugh Thirlway 30. The Counterm easure of Disobedience: Implementing the Responsibility of International Organizations Antonios Tzanakopoulos 31. Countermeasures by Member States Against International Organizations Simone Vezzani (iii) Use of Force/Peacekeeping Operations 32. The Notion of Effective Control under the Articles on the Responsibility of International Organizations Blanca Montejo 33. United Nations Responsibility from Authorizing the Use of Force 405 P.S. Rao 34. International Responsibility for the Conduct of Blue Helm ets : Exploring the Organic Link Francesco Salerno Appendix 1 United Nations General Assembly Resolution 6 6 / 1 0 0, Responsibility of International Organizations (Adopted on December 9, ) Appendix 2 International Law Commission s General Com mentary on the Articles Bibliography Index