Responsibility, and in particular attribution of conduct, is one of the most intensely debated issues of public international law in the last couple of decades. In this article I seek to determine whether, how, and when acts or omissions may be attributed both to an international organisation and a member State (dual attribution). My aim is to clarify what dual attribution is, and what it is not. This is done in two steps. First, I (a) define the concept of dual attribution, (b) demonstrate that dual attribution is possible under the current law of international responsibility, and (c) establish a typology of dual attribution. Second, dual attribution is distinguished from three forms of shared responsibility. These are situations of two acts or omissions leading to one injury, derived responsibility, and the notion of piercing the corporate veil of international organisation. I end the article by criticising the disproportionate attention given to dual attribution in legal scholarship, given its limited practical utility.
The text takes into account developments until December 2020. The authors acknowledge the editing assistance of Christos Zois. 1 See Presidency of EU Council, ' Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)' (20 September 2019) EU Council Doc 12349/19, para 1, referring to the previous negotiation directives (Council of EU, 'Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)' (8 June 2010) EU Council Doc 10817/10 declassified on 10 June 2015), Annex II, para 1), which mentioned the above documents, and to the CJEU Opinion 2/13 (paras 3ff). 2 Ibid, EU Council Doc 12349/19, para 3. 3 Presidency of EU Council, ' Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) -State of Play' (2 October 2015) EU Council Doc 12528/15, para 17, https://db.eurocrim.org/db/en/doc/2379.pdf, last accessed 4 September 2021. 4 Whereas autonomy has been placed at the heart of the CJEU's negative opinion on EU accession to the ECHR, it has been argued that autonomy's scope should be circumscribed in the case at hand because 12 The EU Accession to the ECHR and the Responsibility Question Between a Rock and a Hard Place*
to the editors, the participants at the workshop leading up to this book, and the anonymous reviewers for helpful comments on earlier drafts. 2 Antoine Pécoud, 'What Do We Know about the International Organization for Migration?' (2018) 44 Journal of Ethnic and Migration Studies 1621, 1622-1623 and passim; Megan Bradley, The International Organization for Migration: Challenges, Commitments, Complexities (Routledge 2020) 2-4. 3 For example, IOM has over 15 000 staff members and a 2019 'revenue' of more than USD 2 billion, while the UNHCR employs just over 18 500 people and has a 2021 budget of USD 9,15 billion. See IOM, 'IOM Snapshot' (2021) accessed
On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13 and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights (the Accession Agreement) was incompatible with the constituent treaties of the Union. Although some experts, admittedly, had been skeptical about certain aspects of Draft Accession Agreement, no one seems to have expected an opinion so critical and uncompromising. The opinion has consequently received widespread disapproval in the EU legal blogosphere.
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