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Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v Greece), Judgment, [2011] ICJ Rep 644

Ana Sofia Barros

Relevance of the case

The present case addresses the responsibility of states for their own conduct performed in an institutional setting. It marked perhaps the first time where the International Court of Justice (ICJ) so assertively decided upon the legality of member state participation in an international organization, by focusing on the individual conduct of the state in the process of decision-making. The Court’s decision proves that the veil of an international organization’s decision must, when relevant, be lifted, in order for (member) states to be directly addressed by international law.

I. Facts of the case

Following the break-up of the Socialist Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia (FYROM) applied for membership in several international organizations. FYROM became a member of the United Nations and various of its specialized agencies but did not succeed in applying for membership in nonUnited Nations affiliated organizations and institutions, mainly owing to disagreement between Greece and FYROM over the name of the latter.

This state of affairs led to the adoption on 13 September 1995 of the Interim Accord, whereby Greece agreed ‘not to object to the application by or the membership of [FYROM] in international, multilateral and regional organizations and institutions of which [Greece] is a member’, unless the Parties’ divergences regarding the name would be at issue.

Despite the subsequent admission of FYROM in a number of international organizations, its candidacy for membership in NATO was thwarted—and thus an invitation to begin talks on accession to the organization was not extended to FYROM—on grounds related to the absence of a mutually acceptable solution to the name issue.

Understanding that Greece, in its capacity as a member of NATO, had objected and acted to prevent FYROM from receiving an invitation to proceed to NATO membership, FYROM instituted proceedings against Greece for a violation of its obligations under the Interim Accord. Greece objected to the Court’s jurisdiction and the admissibility of the Application by claiming, among other reasons, that the decision to defer the invitation was not a unilateral act of Greece, but rather a collective decision taken by NATO ‘unanimously’.

II. The legal question

The case touches upon the relationship between international organizations and their member states and the difficult question of identifying legally relevant state conduct in an institutional setting for the purpose of establishing state responsibility. In particular, the contention was raised as to whether a certain conduct was to be considered as a collective decision taken by NATO, or if it should rather be assessed independently of NATO’s will, as an autonomous conduct of the member state. Drawing such a distinction is essential for attribution purposes: only by understanding the position of a member state vis-a-vis the international organization in the process of adoption of institutional acts may a certain act be attributed to one or to the other, as a subject of international law. Concomitantly, only then can the identified conduct be evaluated for its conformity with international legal rules.

The legal question raised by the present case is the following: can member state participation in institutional decision-making processes constitute, in its own right, a legally relevant fact against which compliance with the state’s own international obligations may be judged?

III. Excerpts

  • 39. By way of objection to the Court’s jurisdiction in the present case and the admissibility of the Application, the Respondent claims that the object of the Application relates to the conduct of NATO and its other member States, because the decision to defer the invitation to the Applicant to join the Organization was a collective decision taken by NATO ‘unanimously’ at the Bucharest Summit, and not an individual or autonomous decision by the Respondent. Thus, it is argued that the act complained of is attributable to NATO as a whole and not to the Respondent alone. Moreover, in the view of the Respondent, even if the decision to defer the Applicant’s admission to NATO could be attributed to the Respondent, the Court could not decide on this point without also deciding on the responsibility of NATO or its other members, over whom it has no jurisdiction. Accordingly, the Respondent argues that the interests of a third party would form the subject matter of any decision the Court may take. The Respondent further contends that, in accordance with the Monetary Gold case law, the Court ‘will not exercise jurisdiction where the legal interests of an absent third party form “the very subject matter” of the jurisdiction’.
  • 40. The Applicant, for its part, argues that its Application is directed solely at the Respondent’s conduct and not at a decision by NATO or actions of other NATO member States. The Applicant claims that the Respondent’s conduct is distinct from any decision of NATO. It contends that the Court does not need to express any view on the legality of NATO’s decision to defer an invitation to the Applicant to join the Alliance.

[...]

  • 42. By the terms of the Application, the Applicant’s claim is solely based on the allegation that the Respondent has violated its obligation under Article 11, paragraph 1, of the Interim Accord, which refers specifically to the Respondent’s conduct, irrespective of the consequences it may have on the actual final decision of a given organization as to the Applicant’s membership. The Court notes that the Applicant is challenging the Respondent’s conduct in the period prior to the taking of the decision at the end of the Bucharest Summit and not the decision itself. The issue before the Court is thus not whether NATO’s decision may be attributed to the Respondent, but rather whether the Respondent violated the Interim Accord as a result of its own conduct. Nothing in the Application before the Court can be interpreted as requesting the Court to pronounce on whether NATO acted legally in deferring the Applicant’s invitation for membership in NATO. Therefore, the dispute does not concern, as contended by the Respondent, the conduct of NATO or the member States of NATO, but rather solely the conduct of the Respondent.
  • 43. Similarly, the Court does not need to determine the responsibility of NAT O or of its member States in order to assess the conduct of the Respondent. In this respect, the Respondent’s argument that the rights and interests of a third party (which it identifies as NATO and/or the member States of NATO) would form the subject-matter of any decision which the Court might take, with the result that the Court should decline to hear the case under the principle developed in the case of the Monetary Gold Removed from Rome in 1943, is misplaced. The present case can be distinguished from the Monetary Gold case since the Respondent’s conduct can be assessed independently of NATO’s decision, and the rights and obligations of NATO and its member States other than Greece do not form the subject-matter of the decision of the Court on the merits of the case (Monetary Gold Removed from Rome in 1943 (Italy v. France; United Kingdom and United States of America) Preliminary Question, Judgment, I.C.J. Reports 1954, p. 19; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 105, para. 34); nor would the assessment of their responsibility be a ‘prerequisite for the determination of the responsibility’ of the Respondent (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 261, para. 55). Therefore, the Court considers that the conduct forming the object of the Application is the Respondent’s alleged objection to the Applicant’s admission to NATO, and that, on the merits, the Court will only have to determine whether or not that conduct demonstrates that the Respondent failed to comply with its obligations under the Interim Accord, irrespective of NATO’s final decision on the Applicant’s membership application.

[...]

  • 67. The first clause of Article 11, paragraph 1, of the Interim Accord obliges the Respondent not to object to ‘the application by or membership of’ the Applicant in NATO. The Court notes that the Parties agree that the obligation ‘not to object’ does not require the Respondent actively to support the Applicant’s admission to international organizations. In addition, the Parties agree that the obligation ‘not to object’ is not an obligation of result, but rather one of conduct.
  • 68. The interpretations advanced by the Parties diverge, however, in significant respects. The Applicant asserts that in its ordinary meaning, interpreted in light of the object and purpose of the Interim Accord, the phrase ‘not to object’ should be read broadly to encompass any implicit or explicit act or expression of disapproval or opposition, in word or deed, to the Applicant’s application to or membership in an organization or institution. In the Applicant’s view, the act of objecting is not limited to casting a negative vote. Rather, it could include any act or omission designed to oppose or to prevent a consensus decision at an international organization (where such consensus is necessary for the Applicant to secure membership) or to inform other members of an international organization or institution that the Respondent will not permit such a consensus decision to be reached. In particular, the Applicant notes that NATO members are admitted on the basis of unanimity of NATO member States, in accordance with Article 10 of the North Atlantic Treaty. That provision states, in relevant part, as follows:

‘The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty.’ (North Atlantic Treaty, 4 April 1949, Art. 10, UNTS, Vol. 34, p. 248.)

  • 69. The Respondent interprets the obligation ‘not to object’ more narrowly. In its view, an objection requires a specific, negative act, such as casting a vote or exercising a veto against the Applicant’s admission to or membership in an organization or institution. An objection does not, under the Respondent’s interpretation, include abstention or the withholding of support in a consensus process. As a general matter, the Respondent argues that the phrase ‘not to object’ should be interpreted narrowly because it imposes a limitation on a right to object that the Respondent would otherwise possess.
  • 70. The Court does not accept the general proposition advanced by the Respondent that special rules of interpretation should apply when the Court is examining a treaty that limits a right that a party would otherwise have. Turning to the Respondent’s specific arguments in regard to the first clause of Article 11, paragraph 1, the Court observes that nothing in the text of that clause limits the Respondent’s obligation not to object to organizations that use a voting procedure to decide on the admission of new members. There is no indication that the Parties intended to exclude from Article 11, paragraph 1, organizations like NATO that follow procedures that do not require a vote. Moreover, the question before the Court is not whether the decision taken by NATO at the Bucharest Summit with respect to the Applicant’s candidacy was due exclusively, principally, or marginally to the Respondent’s objection. As the Parties agree, the obligation under the first clause of Article 11, paragraph 1, is one of conduct, not of result. Thus, the question before the Court is whether the Respondent, by its own conduct, did not comply with the obligation not to object contained in Article 11, paragraph 1, of the Interim Accord.

[...]

  • 80. The Respondent stresses the absence of a formal voting mechanism within NATO. For that reason, the Respondent asserts that, irrespective of the statements by its government officials, there is no means by which a NATO member State can exercise a ‘veto’ over NATO decisions. The Respondent further maintains that its obligation under Article 11, paragraph 1, does not prevent it from expressing its views, whether negative or positive, regarding the Applicant’s eligibility for admission to an organization, and characterizes the statements by its government officials as speaking to whether the Applicant had satisfied the organization’s eligibility requirements, not as setting forth a formal objection. The Respondent further contends that it was ‘unanimously’ decided at the Bucharest Summit that the Applicant would not yet be invited to join NATO, and thus that it cannot be determined whether a particular State ‘objected’ to the Applicant’s membership. According to the Respondent, ‘Greece did not veto the FYROM’s accession to NATO ... It was a collective decision made on behalf of the Alliance as a whole.’ (Emphasis in the original.)
  • 81. In the view of the Court, the evidence submitted to it demonstrates that through formal diplomatic correspondence and through statements of its senior officials, the Respondent made clear before, during and after the Bucharest Summit that the resolution of the difference over the name was the ‘decisive criterion’ for the Respondent to accept the Applicant’s admission to NATO. The Respondent manifested its objection to the Applicant’s admission to NATO at the Bucharest Summit, citing the fact that the difference regarding the Applicant’s name remained unresolved.
  • 82. Moreover, the Court cannot accept that the Respondent’s statements regarding the admission of the Applicant were not objections, but were merely observations aimed at calling the attention of other NATO member States to concerns about the Applicant’s eligibility to join NATO. The record makes abundantly clear that the Respondent went beyond such observations to oppose the Applicant’s admission to NATO on the ground that the difference over the name had not been resolved.
  • 83. The Court therefore concludes that the Respondent objected to the Applicant’s admission to NATO, within the meaning of the first clause of Article 11, paragraph 1, of the Interim Accord.

IV. Commentary

The present case addresses the responsibility of states for their participation in international organizations. Member state responsibility has already been invoked before the ICJ1 and other international[1] [2] and domestic Courts[3] in cases mainly related to military operations conducted under the auspices of NATO and the UN. Although these cases differ from the present one in that they did not specifically regard member state participation in institutional decision-making processes,[4] they also involved the complex exercise of determining who, between the international organization and its members, is to be held responsible, and for what. In fact, assessing member state participation in institutional settings, whatever its form, necessarily entails a clear understanding of what exactly is the state’s position vis-a-vis the undertakings of the international organization.

On the one hand, international organizations are endowed with international legal personality and the autonomy with which they act enables them to express a separate will from their members. This implies that organizations (rather than their members) may incur responsibility for any wrongful acts attributable to them. On the other hand, member states do not just disappear behind the institutional veil, and thus, certain consequences related to the operations of an international organization may, after a closer look, have to be linked to member state acts. For this reason, the identification of legally relevant state conduct within a given institutional framework becomes critical, as it directly impacts upon the application of attribution rules, and thus, the establishment of responsibility.

The present case marked perhaps the first time where the ICJ so assertively decided upon the legality of member state participation in an international organization, by focusing on the individual conduct of the state in the process of decision-making. The Court’s approach proves that the veil of an international organization’s decision must, when relevant, be lifted, in order for (member) states to be directly addressed by international law.

On 3 April 2008, NATO publicly announced that FYROM would not be invited to begin accession talks to join the Alliance. In its press release, it stated: ‘we agreed that an invitation to the former Yugoslav Republic of Macedonia will be extended as soon as a mutually acceptable solution to the name issue has been reached’ (emphasis added).[5] Such a statement could be viewed as the corollary of a legal decision taken by NATO as a whole, expressing the will of the organization—a will that is therefore distinct from the individual ‘wills’ of its member states.

From the viewpoint of the legal personality of international organizations, and their capacity to operate with autonomy and manifest a volonte distincte, the question at issue could theoretically be analyzed by focusing on NATO’s decision not to invite the applicant to join the Alliance.[6] However, proof of wrongfulness would hardly be possible. The applicant was rather backed by an international law obligation imposing upon the respondent the duty ‘not to object to the application by or the membership of [FYROM] in international, multilateral and regional organizations and institutions of which [Greece] is a member’.[7] Hypothetically then, and still from the perspective of NATO’s legal personality, the applicant could have attempted to assert the respondent’s responsibility for having exercised—through its dissent—direction or control over the act formally performed by NATO, in accordance with art. 59 of the International Law Commission’s (ILC) Articles on the Responsibility of International Organizations.[8]

Seemingly bypassing the legal distinctness of NATO, the applicant concentrated the locus of responsibility on the individual conduct of the respondent which, through its state organs and agents,[9] had made clear—before, during, and after the Bucharest

Summit—that it objected to the respondent’s admission to NATO. As clarified by the applicant in its Memorial, the dispute did ‘not require the Court to address the actions of any third states or any international organizations’,10 and thus, the action in question was attributable solely to the respondent, in accordance with art. 4 and the other provisions of Chapter II of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts of 2001.“

As will be further explored, the understanding put forward by the applicant was embraced by the ICJ. This is particularly interesting given the intricacies characterizing the relationship between international organizations and their members, and notably, the way by which the former come to operate as corporate-t ike structures in decision-making processes. On the one hand, the formative role of their decisionmaking power allows international organizations to express a volonte distincte from their members; on the other hand, the prominence of member states as drivers and participants in institutional decisions is undeniable, making it sometimes unclear where the organization begins and its member states end/2 The ambiguity stems in particular from the fact that states act in the framework of international organizations in a dual capacity, that is, as members of the organization, and as sovereign states pursuing their own national interests. By concentrating on the individual conduct of the respondent, and by judging it in accordance with its own international law obligations, the ICJ can be said to have based its decision on an account of the respondent as a sovereign state pursuing its national preferences—the exercise of voting rights, or the assumption of a concrete position in consensus decision-making, constituting a means to materialize such pursuit.

It could be claimed that the conclusion of a decision-making process, with the adoption of a decision by the organization, renders it unnecessary to assess the member state’s contribution to that act, in that the latter would ultimately become diluted in the collective will informing the decision adopted/3 This was one of the arguments put forward by the respondent to object to the ICJ’s jurisdiction and the admissibility of the application/4 The respondent repeatedly stressed that the action at issue was a ‘collective decision taken by NATO and its organs’15 wherein ‘Greece had no individual or autonomous role to play’/6 Alluding to the ‘veil effect’/7 the respondent attempted to demonstrate that a consensus-based decision process, such as that of NATO, reflected the ‘will of the organization and not the will of a given Member State’/8 Accordingly, ‘it is not possible and it is legally irrelevant ... to try to search out and individualise the (“real”) author of the proposal on which the consensus is based. Such decisions are, by definition, not attributable to any individual State’/9

ю cf. Memorial at 69-70. 11 cf. Memorial at 87.

и cf. J. Klabbers, An Introduction to International Organizations Law (Cambridge, Cambridge University Press 2015), p. 310. See also I.F. Dekker and R.A. Wessel, Identities of States in International Organizations, International Organizations Law Review, 2016 (forthcoming).

  • 13 See N. White, The Law of International Organisations (Manchester, Manchester University Press 2005), pp. 30 and 31.
  • 14 cf. Counter-Memorial at 109-23. 15 cf. Counter-Memorial at 109.
  • 16 cf. Counter-Memorial at 112.
  • 17 Which would stem directly from the recognition of the separate legal personality of international organizations (cf. Counter-Memorial at 117).
  • 18 cf. Counter-Memorial at 119. 19 cf. Counter-Memorial at 120.

The metaphor of the ‘veil’ was employed to warrant the assertion that it prevented the member states ‘from being held responsible for the conduct of the Organisation’.[10] [11] [12] [13] [14] This constitutes, however, a misplacement of the facts that formed the subject matter of the Court’s decision.^ By simply observing that the contention regarded the respondent’s responsibility for its individual conduct and not for the decision of NATO, the Court easily circumvented the argumentation espoused by the respondent. Hence, the ICJ did not find it problematic to set a clear distinction between NATO’s decision taken at the end of the Bucharest Summit and the respondent’s behaviour prior to that moment.22 The ICJ moreover asserted that it was not required to determine the responsibility of NATO nor that of its members in order to evaluate the conduct of the respondent.”

The Court’s wide understanding of participation in decision-making facilitated the unfolding of the reasoning described above. Contrary to the respondent’s submission that the non-objection clause could only be interpreted as requiring ‘a specific, negative act’, ‘to the point of outright opposition’/*4 such as a veto,[15] the ICJ observed that: ‘nothing in the text of that clause limits the Respondent’s obligation not to object to organizations that use a voting procedure to decide on the admission of new members.’[16] [17] [18] Hence, based on the evidence submitted by both parties, the ICJ concluded that the acts of the respondent were more than mere ‘observations’ (as claimed by the respondent cf. Counter-Memorial at 141), and were therefore tantamount to an ‘objection’.” It is important to keep the Court’s assertion in mind, as future contentions might well involve member state participation in decisions of international organizations where, despite the existence of voting rules, a formal vote has not taken place. Indeed, from the above it follows that also in instances of consensual decisionmaking, the position assumed by member states can be legally relevant for responsibility purposes.”

It remains to be seen whether the Court’s reasoning only applies where, through its voting behaviour, the member state actually impedes institutional action—either on the basis of dissent or a veto. Next to this, could the responsibility of member states be established for a (wrongful) favourable vote? One can hardly claim that a favourable vote is determinant to the adoption of a decision, with the exception perhaps of international organizations with a small membership or those operating with a weighted voting system. Ultimately, it will all depend on the scope of the obligation under consideration, and on whether it imposes a particular course of action upon the state when participating in institutional decision-making processes. It is submitted that where the obligation at issue is one of conduct and not of result (as in the present case), the determining character of the vote is not a necessary element to consider.[19] As suggested by the applicant, the obligation ‘not to object’ also covered situations where the respondent’s act ‘would not have the effect of preventing membership (where unanimity is not required for membership decisions). In other words ... it is the act of objection itself that is prohibited, irrespective of its consequences.’[20] [21] [22] [23]

From the ICJ’s assertions it follows that the decision of a state representative acting under the instructions of his home state can ‘be held to be an act of his home State?1 Whilst the member state’s vote/veto or consent/dissent, is to be considered as state conduct, it should be distinguished from the final decision adopted, which expresses the international organization’s will. Accordingly, the final decision is attributable to the organization, whereas the position assumed by the state representative still refers to the state’s own action and is thus attributable to it.32

Hence, it is possible to conclude that member state participation in the process of adoption of institutional acts can constitute, in its own right, a legally relevant fact. In the present case, the respondent was bound by a specific duty determining the contours of its participation in institutional settings and was thereby held responsible regardless of the final decision adopted by the organization as a whole. In general, therefore, any international legal regime can constitute a basis upon which to assess member state participation in institutional decision-making, as long as it entails obligations clearly conditioning the state’s behaviour.33 Authors have for instance suggested that states’ duty to prevent genocide or other R2P crimes may imply exercising the right to vote (or veto) in a certain manner.34 At the end of the day, voting (or consenting) corresponds to the exercise of a right that, alike any other right recognised in international law, must be judged for its conformity with possible conflicting international obligations.

The case under analysis, quite progressively perhaps/5 set new pathways for reflection when it comes to delineating the boundaries between international organizations and their members in decision-making processes. By clearly isolating the conduct of states when acting as members of international organizations, the ICJ reminds us that even after having transferred competences to a collective body, states cannot leave their international law obligations ‘at home’.

must be made to rules of Treaty interpretation in order to determine the scope of the norm under consideration. Within the human rights regime, mention can be made of the opinions expressed by the UN Committee on Economic, Social, and Cultural Rights, in its General Comments and Concluding Observations, regarding the role of states as members of international organizations. See, for example, General Comment No. 19 on the Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 58.

  • 34 See, for a critical account of such contention, P. Palchetti (n. 33), pp. 359-62 and the brief appraisal made by M. Vashakmadze, in B. Simma, D. Khan, G. Nolte, and A. Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press 2012), pp. 1232 and 1233.
  • 35 In his dissenting opinion, Judge Ad Hoc Roucounas stated that ‘[t]o uphold the Applicant’s thesis means that, for the first time, the highest international court is ruling through a member State on the lawfulness of an act of a third-party international organization’ (para. 22).

  • [1] In the Legality of the Use of Force cases, brought by the Federal Republic of Yugoslavia against tenNATO member states, for example, Serbia and Montenegro v Belgium, Preliminary Objections, Judgment,[2004] ICJ Rep 279.
  • [2] See, for example, the cases brought before the European Court of Human Rights: Agim Behrami andBekir Behrami v France, App. No. 71412/01 and Ruzhdi Saramti v France, Germany and Norway, App. No.78166/01, 2 May 2007, also commented on in this book.
  • [3] See, inter alia, Nuhanovic v Netherlands, Judgment, BZ9225, and Mustafic v Netherlands, Judgement,BZ9228, Supreme Court of The Netherlands, 6 September 2013, also commented on in this book.
  • [4] The issue has however been raised within the European human rights regime. See the case ofMatthews v United Kingdom, ch. 6.3. in this book.
  • [5] cf. NATO Press Release, ‘Bucharest Summit Declaration Issued by the Heads of State and Governmentparticipating in the meeting of the North Atlantic Council in Bucharest on 3 April 2008’, para. 20.
  • [6] The legal personality of international organizations has been the main reference point for discussions regarding member state responsibility, as the Tin Council litigation (ch. 1.3 in this book), andsubsequent academic writings appositely demonstrate.
  • [7] cf. art. 11, para. 1 of the Interim Accord.
  • [8] Articles on the Responsibility of International Organizations, with commentaries, in Report of theLaw Commission on the Work of its Sixty-Third Session, Official Record of the General Assembly, 66thSess., Supp. 10 (A/66/10), 2011 (hereinafter ARIO). It should, however, be noted that the ILC discardedin art. 59(2) of the ARIO the possibility of establishing member state responsibility for the acts of international organizations due to the participation of the former in the process of decision-making.
  • [9] cf. Memorial at 123.
  • [10] cf. Counter-Memorial at 117.
  • [11] Such misplacement also led the respondent to invoke the ‘Monetary Gold principle’, in light of whichthe Court’s decision would be precluded given that it would involve the legal interests of a third party, incasu, NATO or its other members, who were not parties to the proceedings and, in the case of the formerat least, could not be parties thereto. (Counter-Memorial at 122-3).
  • [12] cf. Judgment, para. 42. In the 1948 Admissions case, see ch 3.3 in this book, the ICJ did not seemto stand so clearly as to the separateness between the UN and its members in what regarded the refusal,by UN Security Council members, of the application for membership of a few member states. This is forinstance reflected in the following passage concerning the conditions for admission required by para.1 of art. 4: ‘[a]ll these conditions are subject to the judgment of the Organization. The judgment of theOrganization means the judgment of the two organs mentioned in paragraph 2 of Article 4, and, in thelast analysis, that of its Members. The question put is concerned with the individual attitude of eachMember called upon to pronounce itself on the question of admission’. (See Conditions of Admission of aState to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, [1948] ICJ Rep 57, 61).
  • [13] cf. Judgment, para. 43. 24 cf. Counter-Memorial at 129.
  • [14] 25 cf. Counter-Memorial, at 138. 26 cf. Judgment at para. 70.
  • [15] 27 cf. Judgment at paras. 81-3.
  • [16] 28 The question could be raised as to whether the responsibility of member states, as envisaged in arts.
  • [17] 58 and 59 of the ARIO, could be engaged for their participation in consensual decision-making processes
  • [18] (n. 8). In fact, the ARIO only discarded the possibility of establishing member state responsibility for/inconnection with the acts of the organization for conduct performed in accordance with the rules of thelatter (see arts. 58(2) and 59(2)), without mention being made to state participation in informal institutional processes.
  • [19] cf. Judgment, at para. 70. зо cf. Memorial, at 81-2.
  • [20] 31 I. Seidl-Hohenveldern, ‘Responsibility of Member States of an International Organization forthe Acts of that Organization’, in Collected Essays on International Investments and on International
  • [21] Organizations (The Hague/Boston, Kluwer Law International, 1998), p. 66. The question of the significance of state participation in institutional decision-making processes was discussed by the Institut deDroit International in the framework of its work on the responsibility of member states for the actsof international organizations. See ‘Draft Questionnaire’, from June 1989 and ‘Questionnaire’, fromSeptember 1990, ‘The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties’, Annuaire de l’Institut de Droit International, Sessionde Lisbonne Vol. 66-I, 1995, pp. 289 and 301, respectively, and the following answers.
  • [22] See A. S. Barros and C. Ryngaert, ‘The Position of Member States in (Autonomous) InstitutionalDecision-Making: Implications for the Establishment of Responsibility’, (2014) 11 InternationalOrganizations Law Review 1, pp. 53-82.
  • [23] P. Palchetti, ‘Sulla Responsabilita di uno Stato per il Voto Espresso in Seno ad Un’OrganizzazioneInternazionale’, Rivista di Diritto Internazionale, XCV, 2012, pp. 356-61. The author provides a fewexamples of normative provisions that can be interpreted as requiring a particular course of action fromstates when acting as members of international organizations, such as: art. XXII(1)(2) of the Conventionon International Liability for Damage Caused by Space Objects and art. 139(2) of the United NationsConvention on the Law of the Sea. Where there is no explicit reference to member state conduct, recourse
 
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