Brölmann: Member States and International Legal Responsibility: Developments of the Institutional Veil

Catherine M. Brölmann (Univ. of Amsterdam - Law) has posted Member States and International Legal Responsibility: Developments of the Institutional Veil (International Organizations Law Review, forthcoming). Here's the abstract:

The ‘institutional veil’ of international organizations is the linchpin for legal analysis and appraisal of the role and interrelation of international organizations, member states and organs. Through this lens the article examines in semi-broad strokes the position of international organizations’ member states in the legal framework of international responsibility, with reference to pertinent provisions in the ILC ARIO. This leads to the finding that in (the discourse on) the establishment of responsibility there are four possible legal contexts, which have the institutional veil of the organization work out in different ways: subsidiary responsibility of member states (the proverbial ‘piercing of the corporate veil’); the attribution of conduct to member states; the ‘attribution of responsibility’ to member states; and the bypassing of the institutional veil to establish independent responsibility of member states, which is then connected by a material link to the wrongful act of the organization or to the injurious circumstances originally at issue. In the context of subsidiary responsibility, the institutional veil has been consistently conceptualized as impermeable since the 1980s Tin Council cases; on the other hand, in the context of attribution of conduct the institutional veil of organizations appears to be increasingly contested, engaged with and challenged for transparency. This leaves room a.o. for considerations on the politics of the institutional veil: one likely factor of inspiration for the intense doctrinal exploration and discussion on this point is the lack of legal remedies for injured individuals resulting from the combination of attribution of conduct to an international organization, on the one hand, and the organization’s immunity from process before a domestic court, or lack of standing before an international court, on the other.