Critical Considerations on the Identical Constitutive Elements of International Responsibility of States and International Organizations

The International Law Commission published two separate draft articles on international responsibility in 2001 and 2011. Each draft article deals with the international responsibility of one subject of international law, namely, States or international organizations; however, the two drafts contain many similar or even identical provisions to one another. Among those provisions, the two articles in each draft article that refer to the general conditions for incurring international responsibility are significantly identical. Pursuant to those articles, international responsibility arises when a legal person commits an internationally wrongful act. This paper discusses the theoretical as well as practical difficulties that would arise from applying the same general conditions for the responsibility of states to the responsibility of international organizations. Having illustrated the difference between states and international organizations as to the number and type of international obligations, the paper will then focus on the attribution of the conduct of an organ to the international organizations by discussing different judicial opinions on the issue.