국제법상 국제기구의 행위를 둘러싼 회원국 책임: 국제기구의 법인격을 중심으로

In the early years, International Organizations were merely objects for the cooperation of states. But they have evolved into important subject of international law and become independent and autonomous actors in international law. International organizations enjoy separate legal personality, distinct from the member states, as is implied by the expression ‘volonté distincte’. This has become the most important factor determining the responsibility of international organizations. Also this idea of separate legal personality of international organizations has led to the exclusion of member states for the damage cause by the acts of international organizations, resulting in the establishment of “principle of non-responsibility of member states” has been established. However, the “principle of non-responsibility of member states” tends to be a superficial approach that over looks the inherent structural characteristics of international organizations. As creators and organs of international organizations, member states play an important role in their operation. Therefore it is difficult to completely separate their two entities and the “principle of non-responsibility of member states” must be criticized. Legal personality of international organizations must be dealed with functional approach. Legal personality of international organizations can be considered institutional veil, which is a term of corporation law in municipal legal system. There has been a controversy in the academic field as to whether member states can bear responsibility for the acts of international organizations. Concerning the issue of international responsibility of international organizations, Institut de Droit International (IDI) adopted resolution on “The Legal Consequences for Member States of Non-fulfilment by International Organizations of their Organizations toward Third Parties” in 1995, and International Law Association (ILA) adopted “Recommended Rules and Practices on Accountability of International Organization” in 2004. In addition International Law Commission (ILC) adopted Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts (DARIO). These norms reflect the discussion of member states’ responsibility arising from acts of international organizations, while maintaining the “principle of non-responsibility of member states”. In particular, DARIO Part 5 “ Responsibility of a State in Connection with the conduct of an international organizations” fills a gap which was left in Draft Articles on the Responsibility of States and addresses certain circumstances where member state responsibility can arise. Furthermore, it is possible to determine the responsibility of the member states by applicating agency theory and piercing the corporate veil, which is also term of corporation law in municipal legal system. Absence of legal framework on responsibility of international organizations and the lack of accumulations of practices, the question of member states’ responsibility arising from the acts of international organizations would remain complex but important in future international law.