The main purpose of this introduction is to highlight the articles on responsibility of international organizations, which contain the main rules that apply specifically to international organizations. On the occasion of the 70th anniversary of the European Convention on Human Rights, the Ministry of Foreign Affairs (Legal and Consular Section/International Law Division) decided to organise a half-day expert seminar for members of the Council of Europe`s Ad hoc Committee of Legal Advisers on International Law (CAHDI) in the margins of its 59th session in Prague. Although the European Court of Human Rights (ECHR) is a judicial body and the CAHDI is an intergovernmental committee of experts, both have dealt with important issues of international law over time, from treaty interpretation, state responsibility, international humanitarian law to the application of sanctions imposed by the United Nations Security Council (UNSC). The seminar provided an opportunity for an informal discussion between legal advisers on the case-law of the European Court of Human Rights and its possible contribution to the development of international law. At its sixty-first session, in 2009, the Commission adopted on first reading 66 draft articles on responsibility of international organizations, accompanied by commentaries (A/64/10, paras. 46-47 and 50-51). The Commission decided, in accordance with Articles 16 to 21 of its statute, to transmit the draft articles concerning the Secretary-General to Governments and international organizations for comments and observations, with a request that those observations and observations be transmitted to the Secretary-General by 1 January 2011 (A/64/10, para. 48). An international organization may accept responsibility for its contribution to a breach of an international obligation by a State or another international organization.
Articles 14 to 16 apply to international organizations rules similar to those applicable to States under the articles on State responsibility for assistance or assistance in the commission of a breach, direction and control of a breach, and coercion. Therefore, in the case of assistance or assistance or direction and control, the Organization accepts responsibility only if the act “would be contrary to international law if committed by this organization”. A specific point is dealt with in Article 40. The question was whether members of an international organization were obliged to provide the organization with sufficient resources to make amends if it was responsible for a violation. Article 40 requires members to take “all appropriate measures” in accordance with the rules of the Organization to enable it to discharge its duty of reparation. The international organization also has an obligation to ensure that its members provide the necessary resources, but this obligation must also respect the rules of the organization. I share Klabbers` concern about the practical and systemic consequences of legal arguments; These are key questions. But I do not share his negative assessment of the impact of customary legislation by international organizations.
In my view, the inclusion of international organizations in the fold – the assertion that they are both bound by customary international law and its creators – represents an improvement over the status quo, both for the individuals affected by their conduct and for certain aspects of the legitimacy of the international legal system. At present, international organizations do not pay much attention to customary international law as it applies to them, at least publicly: they have said relatively little about the extent to which customary international law governs their conduct and, in most cases, they have neither explicitly recognized nor explicitly rejected these obligations. While the International Law Commission had prepared its draft conclusions on the identification of customary international law, only the European Union had repeatedly and emphatically argued that it could contribute directly to the development of customary international law. (As I explain in my article and in previous articles, statements that indirectly address these issues are more common.) Report of the International Law Commission on the work of its fifty-second session, held from 1 May to 9 June and from 10 July to 18 August 2000 (A/55/10, reproduced in the Yearbook of the International Law Commission, 2000, vol. I).