24 April 2013

Judge Giorgio Gaja on Shared Responsibility of EU

On 11 April, Judge Gaja gave a SHARES lecture entitled “The relations between the European Union and its member states from the perspective of the ILC Articles on Responsibility of International Organizations.” In his remarks, Judge Gaja discussed various aspects of the European Union’s relationship to the Articles, including its plea for special status, the implications of the EU’s forthcoming accession to the European Court of Human Rights, and the application of Articles 14 – 17 to international organizations generally.

Of particular note were his remarks on shared responsibility and the EU.  Under the Articles, the EU responsibility might arise if it breaches an international obligation by act or omission.  Judge Gaja used the Chile v. European Communities case based on dispute between Chile and Spanish fishermen fishing swordfish outside of the EEZ of Chile as an example of a situation where the EU might have been found responsible for failing to achieve a certain result, in this case the preservation of swordfish. Although the case settled, the EU has exclusive competence for the conservation of maritime resources and consequently there is little question it would have been responsible for any breach (see Hoffmeister’s article here).

Judge Gaja hypothesized that the EU might also have ancillary responsibility under international law if it fails to prevent a certain result, or is found to contribute to the harm. Using the example of genocide, and drawing on the ICJ’s decision in the Genocide case, he stated that if the EU has the capacity to prevent acts of genocide and does not, it could be internationally responsible. In other words, there is an ancillary duty to prevent in international law that may at times extend to international organizations.

Finally, Articles 14, 15 and 17 of the Articles on IO Responsibility establish situations under which IOs might be found responsible for aiding and assisting, directing and controlling, coercing, or circumventing obligations through IO decisions that bind members that would be internationally wrongful for the IO itself. Of particular note were Gaja’s observations that EU Mixed Agreements might create a basis for responsibility under Article 14.

The Question and Answer period focused on questions of lex specialis under Art. 64 of the Draft Articles. This provision states that the draft articles do not apply where special rules of international law apply.  Special rules can be derived from an organization’s founding treaty, decisions, resolutions and other acts of the treaty, and by practice. Audience members commented on the difficulty of ascertaining the scope of this provision, including the problematic case of determining which body of specialized law, between for example the EU and WTO would be more specialized. Moreover, the importance of practice, and the implications of the lex specialis provision for third states arose. Judge Gaja’s lecture will be published as a SHARES working paper in the near future.

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