THE RESPONSIBILITY OF

INTERNATIONAL ORGANIZATIONS
TOWARD THIRD PARTIES
Some Basic Principles

Moshe Hirsch

MARTINUS NÜHOFF PUBLISHERS

DORDRECHT / BOSTON / LONDON
 Table of Contents

PREFACE/ix

ACKNOWLEDGEMENTS/xi

INTRODUCTION/xiü

CHARTER ONE: OVERVIEW: INTERNATIONAL ORGANIZATIONS

AND RESPONSIBILITY/1
A. THE ROLE OF INTERNATIONAL ORGANIZATIONS/1
B. RISKSTOTHIRD PARTIES GENERATED BY THE ACTIVITIES
OF INTERNATIONAL ORGANIZATIONS/5
C. THE RATIONALE FOR THE ATTRIBUTION OF RESPONSIBILITY
TO INTERNATIONAL ORGANIZATIONS/7
D. THE ELEMENTS OF RESPONSIBILITY OF INTERNATIONAL
ORGANIZATIONS/10
E. COMPETENCE AND RESPONSIBILITY OF INTERNATIONAL
ORGANIZATIONS/14

CHAPTER TWO: THE ELEMENT OF BREACH OF AN INTERNATIONAL

OBLIGATION/17
A. INTERNATIONAL TREATIES/18
(1) General/18
(2) Mixed Agreements/19
(A) Agreements containing Competence Clauses/20
(B) The Special Regime set up by the 1982 U.N. Convention on the
LawoftheSea/21
(C) Agreements Lacking a Competence Clause/23
(D) Analysis/24
(3) The Duty of the Members to Perform Obligations Arising from Treaties
Concluded by the Organization/27
(A) According to the I.L.C. Proposed Article/27
(B) Analysis/29
(4) JusCogens/30
B. INTERNATIONAL CUSTOMARYLAW/31
(1) The Application of the Laws of War to the Operations of International
Organizations/32
(2) Analysis/35
C. GENERAL PRINCIPLES OF LAW/37
D. UNILATERAL DECLARATIONS/38
E. OBLIGATIONS RELATEDTO NATIONAL POWERS TRANSFERRED
TO THE ORGANIZATION/38
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(1) The Participation of the European Community in the GATT
System and Other Economic Treaties/39
(2) The European Community and the European Convention on
Human Rights/43
(3) Principlesof"Succession"/49
(4) Analysis/52
(A) The Responsibility of the Transferring State/53
(B) The Responsibility of the Receiving International Organization/55

CHAPTER THREE: THE ELEMENT OF ATTRIBUTION IN THE RESPONSIBILITY

OF INTERNATIONAL ORGANIZATIONS/61
A. GENERAL PRINCIPLES OF ATTRIBUTION/62
B. STATE ORGANS PLACED AT THE DISPOSAL OF INTERNATIONAL
ORGANIZATIONS/64
(1) TheRule/64
(2) The Practice of International Organizations and States/66
(A) The Practice of the United Nations Forces/66
(B) The Practice of the Forces of Other International Organizations/71
(3) Judicial Decisions/73
(4) Analysis/76
C. THE EXCEPTIONAL RESPONSIBILITY OF THE TERRITORIAL STATE/77
(1) TheLaw/77
(2) Analysis/81
D. ATTRIBUnON OF ACTS IMPLEMENTING DECISIONS OF INTERNATIONAL
ORGANIZATIONS/82
(1) TheLaw/82
(2) Analysis/86
E. ULTRA VIRES ACTS PERFORMED B Y ORGANS OF INTERNATIONAL
ORGANIZATIONS/88
(1) TheRule/89
(2) The Exception/90
(3) Analysis/94

CHAPTER FOUR: THE RESPONSIBILITY OF THE MEMBERS OF

INTERNATIONAL ORGANIZATIONS: THE LEXLATA/96
A. TREATYLAW/98
(1) General Treaties/98
(A) Nuclear Ships/98
(B) Space Activities/99
(C) Analysis/102
(2) Constituent Treaties of International Organizations/102
(A) Treaty Provisions/102
(B) Analysis/103
B. JUDICIAL DECISIONS/107
(1) The Westland Case/107
(A) Background/107
(B) The Award of the Tribunal of the International Chamber of
Commerce/108
(C) The Decisionsof the Swiss Courts/109
(D) Analysis/111
(2) The International Tin Council Case/112
(A) Background/112
(B) The Judgments of the High Courts/115
 Table of Contents vii
(C) The Judgment of the Court of Appeal/l 16
(D) The Judgment of the House of Lords/120
(E) The Court of Justice of the European Community/121
(F) Analysis/122
C. THE PRACTICE OF STATES AND INTERNATIONAL
ORGANIZATIONS/125
(1) The Practice/125
(2) Analysis/127
D. GENERAL PRINCIPLES OF LAW/129
(1) The Principle in Municipal Systems and in International Law/129
(2) Analysis/133
E. WRITERS'OPINIONS/137
(1) Writers' Opinions Concerning the Members' Responsibility/137
(A) Direct Responsibility (either Secondary or Concurrent)/137
(B) Limited Responsibility/139
(C) Indirect Responsibility/142
(D) Responsibility in Accordance with the Parties' Intentions/142
(E) The Responsibility of the Members according to their Obligations toward
the Organization/143
(F) Responsibility according to the Functions and Objects of the
Organization/145
(2) Analysis/146
F. CONCLUSIONS: THE CONTEMPORARY LAW/146

CHAPTER FIVE: THE RESPONSIBILITY OF THE MEMBERS: EVALUATION OF

THE PRINCIPAL ALTERNATIVE REGIMES/149
A. LIMITED RESPONSIBILITY/149
B. CONCURRENTRESPONSIBILITY/154
C. SECONDARY RESPONSIBILITY/155
D. INDIRECT RESPONSIBILITY/157
E. RESPONSIBILITY ACCORDING TO THE INTENTION OF
THE PARTIES/158
F. RESPONSIBILITY TOWARD THIRD PARTIES IN ACCORDANCE WITH
RESPONSIBILITY TOWARD THE ORGANIZATION/160
G. MEMBERS' RESPONSIBILITY IN ACCORDANCE WITH THE AIMS AND
FUNCTIONS OF THE ORGANIZATION/162
H. PROPOSED REGIME FOR THE MEMBERS' RESPONSIBILITY/163
(1) Respecting the Clear Common Intentions of the Parties/163
(2) Application of the Regime of Indirect Responsibility to
Voluntary Third Parties/164
(3) Application of the Regime of Secondary Responsibility to
Non-Voluntary Third Parties/166
(4) Summary/168
I. EXCEPTIONS("PIERCINGTHEVEIL")/169

CHAPTER S K : CONCLUSIONS/173
A. INJURED AND INJURER: THE NEED FOR A BALANCE OF
INTERESTS/173
B. IMPLICATIONS FOR THE RELATIONSHIP BETWEEN THE ORGANIZATION
AND ITS MEMBERS/174
C. EXTERNAL RESPONSIBILITY AND INTERNAL EFFECTS/178
D. THE EVOLUTION OF THE LAW OF INTERNATIONAL ORGANIZATION
RESPONSIBILITY AND GEO-POLITICAL FACTORS/179
viii Table of Contents
E. EXTERNAL SUPERVISION AND INTERNATIONAL ORGANIZATION
RESPONSIBILITY/183
F. FUTURE DEVELOPMENTS/185
G. SYNOPSIS OF THE EXISTING AND PROPOSED RULES OF INTERNATIONAL
ORGANIZATION RESPONSIBILITY DISCUSSED IN THIS WORK/188

BIBLIOGRAPHY/196

INDEX/219