The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations – An Appraisal of the ‘Copy-Paste Approach’ –
SHARES Research Paper 13 (2012), ACIL 2012-14
Published in: (2012) 9(1) International Organizations Law Review 53-66.
In view of the adoption and future reception of the Articles on the Responsibility of International Organizations (ARIO) on second reading, this contribution seeks to offer some reflections on the ‘copy-paste narrative’ that has characterized the process of drafting the ARIO. On the basis of a brief introduction to the concept of analogies in international law (Section 1), it is explained that the use of analogies is not to be equated with a mechanical exercise of copy-pasting legal rules; rather, it constitutes a method of legal reasoning based on a principled assessment of relevant similarities and differences. By comparing both sets of Articles drafted by the ILC, it will be demonstrated that the ARIO actually do not follow the example of the ASR in many key provisions. Interestingly, much of the critique of the ARIO has been directed against these dissimilar provisions, especially when they concern the relations between an international organization and its member States (Section 2). Since this critique is mainly driven by considerable uncertainty as to the determination of the responsible actor(s), it will be suggested that the ILC should have used closer analogies with the ASR in order to enhance the overall coherence of the law of international responsibility (Section 3). This is because, as argued in conclusion, the corporate complexity of international organizations and States may necessitate a unified set of Articles on International Responsibility (Section 4).