Suchergebnisse

This paper aims to define the notion of institutional practice and it examines the extent to which United Nations organs and Member States can rely on and are limited by it. It describes all the normative theories involved, and proposes a simplified and comprehensive framework. The core argument is that institutional practice is less relevant than it seems in the first instance and, generally, it cannot do much by itself. It requires a further element to produce normative effects, whether in the form of Member States' practice or other means of interpretation of the constitutive instrument. After a brief introduction, the second section focuses on what constitutes institutional practice, distinguishing between the problem of the acts that constitute practice and how they are attributed to the organisation. Section iii discusses its employment by the International Law Commission, which distinguishes 'subsequent' institutional practice as a means of interpretation of the constitutive instrument, 'general' institutional practice as an element of customary law, and 'established' institutional practice as a rule of the organisation. Finally, Section iv provides a general overview of the normative relevance of institutional practice. The Conclusion summarizes these main findings.

Abstract
This article is a critical reaction to the 2020 EJIL Foreword titled 'Guiding Principles on Shared Responsibility in International Law'. It focuses on Principle 3, concerning a 'single internationally wrongful act', and it is divided into its constitutive elements: the meaning of same conduct (Section 2), the attribution to multiple persons (Section 3), the breach of obligations (Section 4) and the indivisible injury (Section 5). The main criticism is that the Guiding Principles make things more complex than they already are. The established principles of international responsibility provide simpler and more effective answers. This is particularly the case for Principle 3, which concerns multiple responsibilities arising from the same conduct. There are two main elements through which the Guiding Principles on Shared Responsibility seek to provide guidance in the case of a plurality of internationally responsible persons. First, they employ the comprehensive notion of an internationally wrongful act, while ARSIWA and ARIO distinguish between the two elements of attribution of conduct and the breach of an obligation. Second, the Guiding Principles consider the injury to be a constitutive element included in the definition of shared responsibility, while ARSIWA and ARIO only employ it in the context of reparation and countermeasures. There are no actual benefits coming from these attempts of clarification.