Forthcoming, Due Diligence and Structural Change in the International Legal Order (Heike Krieger, Anne Peters, Leonhard Kreuzer, eds., Oxford University Press: OUP 2020).


There are two reasons to consider obligations to supervise international organizations as a distinct category of due diligence obligations. First, due diligence obligations typically require states to regulate third parties in some way. But it is harder for states to regulate international organizations unilaterally than to regulate private actors within their own territories because international law protects the autonomy of those organizations. Second, such due diligence obligations merit attention because they may compensate for the dearth of mechanisms to hold international organizations accountable when they cause harm. These accountability concerns are especially acute when it comes to private individuals who are harmed by such organizations’ activities. If member states policed international organizations more carefully, those organizations may be less likely to cause harm, or be more likely to provide recourse when they do. The International Law Commission’s Draft Articles on the Responsibility of International Organizations (the ARIO), adopted in 2011, establish some general, cross-cutting obligations on states to act (or refrain from acting) in particular ways vis-à-vis international organizations. The chapter argues that these obligations are framed too narrowly. First, the Commission should have made clear that member states would incur responsibility by aiding and assisting or directing and controlling acts by international organizations that violate the latter’s international obligations. This omission does not matter when an international organization’s obligations coincide with those of its member states. But in some important cases, their obligations diverge. Second, the Commission should have affirmed that, when an international organization breaches an international obligation, member states have a duty to make sure that the organization can implement all of the obligations that are triggered by a violation of international law — not just the obligation to make full reparation. The chapter closes by making the normative case for establishing a due diligence obligation on member states to ensure that international organizations do not abuse their immunities.


International Law | Law and Economics | Public Law and Legal Theory

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