Liability of the Future OPCW: Paper 20

YORK VON LERSNER, PATRICIA RADLER, THOMAS KURZIDEM,
THOMAS STOCK AND RONALD, G. SUTHERLAND

Bad Homburg, Germany
8- 10 September 1995

I. Introduction

The issue of liability of the future OPCW has so far been neglected notonly during the
negotiation process of the CWC in Geneva but also within the work of thePrepCom of the
OPCW. During the 10th and 11th Plenary of the PrepCom for the first timeone aspect of the
future Organization's liability was addressed - compensation for breachesof confidentiality. 1

The fact that the problem of liability has not been touched during mostof the CWC
implementation process is in line with the development of many other international
organizations, when the question of liability of the Organization was noton the agenda either.
However, the question of liability is not a marginal problem, which canbe dealt with as soon
as the issue arises. It is very important for the standing of the internationalorganization within
any legal relationship, concerning international law or national law. 2The latter context is of
major importance for the future OPCW. One might only think of the costsinvolved in contracts
for the buying of equipment of inspectors, which were not concluded underinternational law.

The circumstances in which the organisation could be held liable are asfollows 3 :

1) Liability for contractual obligations
2) Liability for tort- obligations other than breaches of confidentiality
3) Liability for tort- obligations concerning breaches of confidentiality

Two question have to be answered to pave the way for a suitable liabilityregime of the future
OPCW: first, whether the Organization is liable to any claimants at alland second, whether its
members states are liable for obligations of the Organization to claimantsor to the Organization
as well.

There are two other points regarding the question of liability that willnot be addressed in this
paper. First the Organization is granted immunity in the national legalsystems. This, however,
only means that no action can be brought against the Organization in court;it does not prevent
the Organization to be substantially liable for its obligations. 4
The second point is the liability of an organization vis- a- vis Non Parties.There is an academic debate 5 on this issue, but it is very unlikelythat the problem will arise in the context of the OPCW and, thus, it canbe neglected in this paper.

II. Legal Personality of the OPCW

The liability of an international organization depends on the fact whetheror not the organization
possesses legal personality and thus, must be considered a subject of internationallaw or the
respective national legal system. 6 The latter point is relevantfor, inter alia, contracts concluded
with enterprises which are not subjects of international law. These contractsmay be governed
by any national legal system and the Organization can only be held liableif it has legal
personality under the respective legal system. 7

Concerning the legal personality of the Organization under internationallaw the mere
wording of the CWC is not the decisive factor, but the whole context ofthe CWC, the nature,
purpose and function of the Organization and the intention of states, whetherthe Organization
should exercise and enjoy rights and duties, based on the possession ofinternational
personality and the capacity to operate on the international plane willbe taken into account. 8

Although there is no provision in the CWC stating that the future OPCW possesses
international legal personality - Art. VIII paragraph 48 has not been consideredto be sufficient
to establish the Organization's international legal personality 9 -it is obvious that the OPCW can
only exercise its rights and functions, if it possesses international legalpersonality and is
considered as a subject of international law. 10 The conclusion offacility agreements between
the OPCW and Member States, which will be treaties under international law,may serve as an
example so far.

Regarding the aspect of legal personality under the legal systems of StatesParties, Art. VIII,
paragraph 48 of the Convention serves to prove that the OPCW will possesslegal personality
in the respective legal systems. 11

Since it cannot be disputed that the OPCW will possess legal personality,it is well
established that international organization are responsible and liable forthe acts of its agents. 12
This applies to international law 13 as well as to national law 14. Thus it can be concluded that the
future OPCW will be liable for acts of its agents.

In the following paragraph it will be briefly examined in which situationsthe issue of liability
will be relevant for the future OPCW. The Organization is not liable forany breach of
confidentiality by a staff member of the TS 15 . Thus, the issuewill not occur in such cases.

Regarding the liability for contractual obligations it might be well thecase, that the Organization
will waive its immunity for being sued before national courts. This is dueto the fact that
contracts with private enterprises are concluded under the respective nationallaw and that the
Organization itself brings action against the enterprise which are relatedto the same contract.

These claims can then be settled by the national court as well and the Organizationcan pursue
that the judgment will be executed. Furthermore by waiving its immunityfor being sued in
national courts, the Organization does not waive its immunity for executionof private law
judgments. Thus, any judgment passed by a national court cannot be executedagainst the
OPCW. A last reason for waiving its immunity might be, that the Organizationby doing so
wants to uphold its reliability as a trading partner.

The issue of liability will therefore mainly be relevant for tort- obligationsother than breaches
of confidentiality.

III. Liability of Member States for the OPCW

The remaining question is whether the Member States of the Organizationare also liable for acts
of the Organization. This is of great importance for any claimant as wellas for the
Organization. If states are liable claimants can sue the State Parties andthus, it is more likely
for them to receive the full amount of their claim and not merely a proportionas in the case of
liquidation of the Organization. Vice versa the standing of the Organizationin all legal relations
will improve if the individual, who does business with the Organization,can be assured that the
member states are also responsible for the financial obligations of theOrganization.

In this regard many theories have been developed. Some of them stating thatan organization
alone must be held liable for its acts, 16 while others state differentshades of members states'
liability for obligations of the Organization 17 18 . However, nogeneral rules on liability exist in
international law so far. 19 There is no codification addressingthe issue in a general way 20 , and
there are no customary international law either. The few examples existingat present are the
International Tin Council Case, 21 the Eurochemie Case and the WestlandHelicopters Case 22
cannot serve as precedents for various reasons and all have been settledin different ways.

Further, a survey of the constitutional documents of international organizationsreveals that no
coherent practice exists addressing the problem of member states' liabilityfor acts of the
Organization. Some of these documents contain specific clauses for the dissolutionof the
Organization, some include provisions limiting the liability of the Organization,some provide
for the liability of member states but most of them do not refer to thequestion of liability at
all. 23

Thus, to decide whether or not member states are liable for acts of an international
organization, it is necessary to analyze the constitutional documents ofthe Organization 24 as
well as all circumstances of its establishment and its assigned tasks. 25Further, the intention of
member states concerning their own liability for the Organization have tobe taken into
account. 26 But before turning to the interpretation of the CWC concerningthe liability of
OPCW two additional remarks have to made.

First, for the interpretations of the documents the rules of the ViennaConvention on the Law
of Treaties have to be applied, especially Art. 31 CLT if the documentsare silent on a specific
issue. 27 And secondly, as said constitutional documents of an internationalorganization may
include provisions limiting or acknowledging member states' liability forspecific activities.

None of these provision provides for a reasonable ground to interpret theconstitutional
documents in a way that, if the liability is excluded for specific activities,member states are
liable for activities carried out under the other provisions of the treaty.28 The same is valid for
provisions, which acknowledge member states' liability for a specific activitiesof the
international organization 29 . 30 However, clauses excluding orincluding the liability of member
states for specific circumstances are valid under international law andhave to be taken into
account. 31

There is only a single provision of the CWC dealing with the liability ofthe Organization.
This is paragraph 22 of the Confidentiality Annex, excluding the liabilityof the OPCW for any
breach of confidentiality committed by a staff member of the Technical Secretariat.According
to two authors, this provision was included in the CWC to protect the Organizationagainst
claims amounting to millions of US- Dollars for which States Parties couldbe held liable, and
thus, pose an incalculable risk on the States Parties. This risk could havekept states from
ratifying the CWC. 32 But as stated above this clause does not provideany basis for further
interpretation of the CWC. The travaux prÈparatoires of the CWC,the Conference of Disarmament Documents, do not contain any reference tothe question of liability either.
Thus, the CWC must be interpreted "in good faith in accordance withthe ordinary meaning
given to the terms of the treaty in their context and in the light of itsobjects and purpose". 33

The last part of this rule is of special importance for the interpretationof the CWC regarding liability of the OPCW. The mere fact that states haveestablished the Organization produces some
information of the states' intention regarding liability. The main tasksof the CWC is to control
the non- production, including chemical industries, and to oversee the destructionof existing
chemical weapons. The verification mechanism for compliance with the obligationsunder the
CWC includes on- site inspections as well as the observation of destructionof chemical
weapons. These activities include the risk of causing damage to the inspectedfacilities by
inspectors of the OPCW and there is no fund within the CWC providing forthe compensation
if such damage occurs.

If the Organization would be solely liable, two situation could occur.
The Organization is either incapable of fulfilling its obligations, forwhich the budget provides,
as the funds would have to be used for compensation. 34 Thus, theOrganization could not
function anymore. The other possibility is that the work of the Organizationcould be
substantially limited as e. g. inspectors may change their verificationmethods in order to avoid
any damage. The fulfillment of obligations under the CWC by inspectors coversalways the
risk of damaging something. Thus, given the case that damage had been causedand the
Organization is liable for it, the future OPCW will either be limited infunctioning or, if the
Organization did not pay its debts, it will be difficult to find tradingpartners. Both alternatives
will create major problems for the functioning of the future OPCW. 35States must have been
aware of this risk during the setting up of the Organization. As it wasthe intention of states to
set up the Organization they must provide for a proper functioning of theorganization, which
includes that they provide sufficient money for its activities. Operatingan international without
guaranteeing that someone will compensate for its obligations is impossible.36 Thus, States
Parties, as the founder of the Organization, must be and are liable foracts of the future
OPCW. 37 The intention of States Parties to provide sufficient moneyfor the functioning of the
OPCW is also expressed in the Draft financial rules of the OPCW, which includea provision
that money will be provided for unforeseen and extraordinary expenditures.

IV. Institutions

If recognizing that the States Parties are liable for acts of the Organizationit will be to the
benefit of the Organization to set a clear procedure, as to how claims againstthe Organization
can be filed. 38 Such a claim settlement procedure must include,inter alia, the following aspects:

- A dispute settlement board should be established, which will considercontested claims as
well as the amount of damage, if contested, and which decisions are bindingfor the parties
involved; 39

- Clear procedural rules for lodging a claim and for the proceeding of thecase;

- A scheme has to be developed, which reveals how States Parties will providemoney for the
compensation. It seems to be reasonable to implement a "compensationfund", which would
pay for compensation of claims. The fund could be set up in the followingway: Each State
Party pays its appropriation to the budget and pays additionally 1 per centof this amount to the
compensation fund. This will not be too cost- intensive for States Partiesand provides for the
possibility that the Organization can work with the money on the marketin order to increase the
total sum of the fund available.

Over a period of 5 years the total sum of the fund should be sufficientto deal with the claims. Given the case that the capital of the fund wouldbe too small to deal with all possible claims initially the above mentionedsystem could be set for a certain period again. An initial payment of 5per cent in the first year and then 1 per cent in the following years wouldeven more reduce the possibility of later payments being required by StatesParties. To implement such a payment scheme also has certainly a positiveeffect on the ratification process: as stated above, paragraph 22 of theConfidentiality Annex should minimize the possibility that states do notratify the CWC due to the incalculable risk of liability arising from breachesof confidentiality. But this leaves still untouched the risk of liabilityfor acts other than breaches of confidentiality.

The compensation fund as outlined above would reduce the risk for statesof payments of compensation and thus, states could be more willing to ratifythe CWC. Further, it would prevent long ongoing struggles between statesabout the percentage liability of each state for each compensation especiallyfor states for which the CWC is almost not relevant due to a very smallchemical industry, would be unwilling to pay large sums for compensation.Another, but definitely more cost- intensive scheme is that each State Partypays the same percentage for each compensation claim as it pays towardsthe budget; 40

- A provision must also be included that states are not liable vis vis theclaimant, but
towards the Organization, so that the claimant can only sue the Organization.This would avoid
the possibility that national courts of States Parties pass judgments onsuch issues and thereby
develop an inconsistent pattern for the settlement of claims. It will alsogive the Organization a
more independent standing from its States Parties;

- Safeguards for the assurance of payments by the State Parties for obligationsarising from
an obligation of the Organization will have to be developed. Here the samesanctions as for
failure to pay the assessed contribution to the budget of the Organizationcould be
implemented; 41

- Similar to the practice of the IAEA, activities of the OPCW will haveto be identified for
which liability can be covered either by concluding agreements with StatesParties in a way that
the individual member state is liable for that specific activity or by insurancefor that specific
activity. 42

V. Conclusion

As has been said before, the future OPCW will be liable for its acts. Inorder to facilitate a
proper functioning of the Organization, States Parties must provide sufficientmoney to
compensate claims, which are brought against the Organization and wherethe liability of the
Organization is established. States Parties are liable for compensationof these claims either
towards the Organization or towards the claimants. Instead of dealing witheach claim
separately on a case by case basis, procedures and institutions, dealingwith these claims,
should be established. This would improve the standing of the future OPCWand contribute to
a successful functioning of the Organization.

In closing the issue of compensation for breaches of confidentiality shallbe considered
briefly. As shown above the Organization is not liable for any breach ofconfidentiality of a
staff member of the Technical Secretariat. But some States Parties 43desire compensation to be
provided, the OPCW can only pay ex gratia payments to compensate the damagecaused by a
breach of confidentiality. This would require that the States Parties developa fund to be used in
such cases. In order to facilitate a fair treatment of these claims ex gratiapayments should only
be provided according to the occurrence of specific circumstances. Thesecircumstances have to
be defined and should be included in guidelines for the handling of suchclaims. Cases in
which either the grounds for ex gratia payments are contested or the amountof the payment
shall be referred to the compensation settlement board which will give itsadvisory opinion on
the case. The right to refer a case to the compensation settlement boardshall only rest with the
States Parties and the Organization. The opinion offered is not bindingupon States Parties and
the final decision shall be taken by the Conference of State Parties orthe Executive Council.
Any decision of the Conference of State Parties/ Executive Council shallnot serve as a
precedent. Ex gratia payments are made voluntarily and anything that couldset some sort of
legal binding rules (e. g. customary rules) should be avoided.


Footnotes:

1 Statement of the Asian Group PC- X/ 18 paragraph 4 (e); Report ofthe Commission, PC- XI/ 17 paragraph 7.10 (page 6) and Annex 2, IV no. 3(page 22).

2 Pernice, I. , Die Haftung internationaler Organisationen und ihrer Mitarbeiter,26 Archiv des Vlkerrecht (AVR) (1988), pp. 406 et seq., at p. 407.

3 See also PC- X/ B/ WP. 3 paragraph 22.

4 With the IAEA as an example see Rockwood, L., Responsibility of the internationalorganization and of its civil servants, paper presented at the Workshopon The Convention on the Prohibition and Elimination of Chemical Weapons,Hague Academy of International Law, at p. 4 , forthcoming in Recuil de Cours:Convention on the Prohibition and Elimination of Chemical Weapons: A Breakthroughin Multilateral Disarmament.; Mueller, W., Trau schau wem! Oder: Von derzivilrechtlichen Verantwortlichkeit der Mitgliedstaaten InternationalerOrganisationen, Neue
Juristische Wochenschrift (NJW) 1991, pp. 2175 et seq., at p. 2177.

5 For the different opinions see Mann, F. A. , Die juristische Person desVoelkerrechts, 152 Zeitschrift fuer Handelsrecht (1988), pp. 303 etleatp. 307; Hahn, H. J., Euratom: The Conception of an International Personality,71 Harvard Law Review (1958), pp. 1001 et seq., at p. 1048; Meng, W., InternationaleOrganisationen im voelkerrechtlichen Delikt, 45 ZaRV (1985), pp. 324 etseq.; Mosler, H., Die Erweiterung des Kreises der Voelkerrechtssubjekte,22 ZaRV (1962), pp. 1 et seq., at p. 32; Frowein, J. A. , Recognition, EPIL10>, 346 Collier, FS Lipstein, 1980, 21.

6 Brownlie, I., Principles of International Law, 4th ed. 1990, at p. 701states: The correlative of a legal personality and a capacity to presentinternational claims is responsibility.

7 Mann, F. A. , Die juristische Person des Voelkerrechts, 152 Zeitschriftfuer Handelsrecht (1988), pp. 303 et seq., at p. 307; Ebenroth, C. T., MuenchnerKommentar zum Buergerlichen Gesetzbuch, Vol. VII, 2nd ed., nach Art. 10,no. 560.

8 Mann, F. A., Die juristische Person des Voelkerrechts, 152 Zeitschriftfuer Handelsrecht (1988), pp. 303 et seq., at p. 306; see also AdvisoryOpinion of the ICJ concerning Reparations for Injuries suffered in the Serviceof the United Nations, ICJ Reports 1949, at p. 179.

9 Mann, F. A. , Die juristische Person des Voelkerrechts, 152 Zeitschriftfuer Handelsrecht (1988), pp. 303 et seq., at p. 306.

10 See Seidl- Hohenveldern, I., Der Rueckgriff auf die Mitgliedstaaten inInternationalen Organisationen, in Voelkerrecht als Rechtsordnung - InternationalerGerichtshof - Menschenrechte Festschrift fuer Herman Mosler, pp. 881 etseq., at p. 885 et seq.; Mann, F. A., Die juristische Person des Voelkerrechts,152 Zeitschrift fuer Handelsrecht (1988), pp. 303 et seq., at p. 307 statesthat as a rule one can assume that states, founding an international organisation,will also grant the international organisation legal personality in internationallaw, although the constitutional documents do not include any provisionin that respective; see also Hoffmann, G., Der Durchgriff auf die Mitgliedstaateninternationaler Organisationen fuer deren Schulden, Neue Juristische Wochenschrift(NJW) 1988, pp. 585 et seq., at p. 585 with further references in footnot3; and Hahn, H. J., Euratom: The Conception of an International Personality,71 Harvard Law Review (1958), pp. 1001 et seq., at p. 1048.

11 See to that Ebenroth, C. T./ Fuhrmann, L., Die zivilrechtliche Haftunginternationaler Organisationen und ihrer Mitgliedstaaten, Juristische Zeitung(JZ) 1989, pp. 221 et seq. at p. 215; Hoffmann, G., Der Durchgriff auf dieMitgliedstaaten internationaler Organisationen fuer deren Schulden, NeueJuristische Wochenschrift (NJW) 1988, pp. 585 et seq.

12 Bothe, M., Obligations and Protection of Individuals, paper presentedat the Workshop on The Convention on the Prohibition and Elimination ofChemical Weapons, Hague Academy of International Law, at p. 8 , forthcomingin Recuil de Cours: Convention on the Prohibition and Elimination of ChemicalWeapons: A Breakthrough in Multilateral Disarmament.

13 Ginther, K., International Organisations, Responsibility, in EPIL 5>at p. 162; see also Rockwood, L.,


15 Paragraph 22 of the Confidentiality Annex.

16 So Pernice, I. , Die Haftung internationaler Organisationen und ihrerMitarbeiter, 26 Archiv des Voelkerrecht (AVR) (1988), pp. 406 et seq., atp. 419 and 420; Seidl- Hohenveldern, I., Die voelkerrechtliche Haftung fuerHandlungen Internationaler Organisationen im Verhaeltnis zu Nichtmitgliedstaaten,11 ÷ZR (1961), pp. 497 et seq., at p. 505 et seq., Eisemann, P. M.,Crise du Conseil International de l'tain et Insolvabilite d'une OrganisationIntergouvernementale, 31 AFDI (1985), pp. 730, at p. 745; Herdegen, M.,Bemerkungen zur Zwangsliquidation und
zum Haftungsdurchgriff bei Internationalen Organisationen, 47 ZaRV (1987),pp. 537 et seq., at p. 555; with respect to the contractual obligationsof the EC, see Conze, A., Die voelkerrechtliche Haftung der EuropischenGemeinschaft, 1987, at p. 70; with respect to tort- obligations of an internationalorganisation v. Moench, I., Das voelkerrechtliche Delikt, 1963 at p. 268.

17 Reuter, P., Sur quelques limites du Droit des Organisations Internationales,Festschrift fuer Rudolf Bindschedler, Bern 1980, pp. 491 et seq., at p.505 et seq.; Seyerstedt, F., Objective International Personality of IntergovermentalOrganisations, 1963, at p. 97, Meng, W., Internationale Organisationen imvlkerrechtlichen Delikt, 45 ZaRV (1985), pp. 324 et seq., at p. 338; Bothe,M. Die Stellung der Europischen Gemeinschaften im Vlkerrecht, 37 ZaRV (1977),pp. 122 et seq., at p. 128; Bernhardt, R., Die Europischen Gemeinschaftenals neuer Rechtstraeger im Geflecht

18 In this respect it is debated whether member states shall be jointlyliable with the organisation towards the claimant or shall only be liabletowards the organisation for compensation of claims brought against theorganisation or whether member states shall be subsidiary liable for theorganisation's obligation. However, this paper discusses only the question,whether member states are liable or not and leaves the question in whichmanner member states are liable aside.

19 In his doctoral thesis Die Haftung der Mitgliedstaaten fuer InternationaleOrganisationen, Berlin 1993, M. Hartwig analysed the various factors ofa possible liability of member staes in detail, such as control over theorganisation, financial obligations of member states for the organisationetc.; his conclusion that so far no body of law ruling the question of liabilityexists is at p. 333; see also Amerasinghe, C. F., Liability to Third Partiesof Member States of International Organisations: Practice, Principle andJudicial Precedent, 85 AJIL (1991), pp. 259 et seq. with further
references; Cahier, The Strengths and Weaknesses of International ArbitrationInvolving a State as a Party, in Contemporary Problems in InternationalArbitration, J. Lew (ed.), 1987, at p. 244; see also the examination ofPernice, I., Die Haftung internationaler Organisationen und ihrer Mitarbeiter,26 Archiv des Vlkerrecht (AVR) (1988), pp. 406 et seq., at pp. 420- 428.

20 The Vienna Convention on the Law of Treaties between States and InternationalOrganisations and among International Organisations has not entered intoforce so far. To the Convention see Bothe, M., Die Wiener Konvention ueberdas Recht der Vertraege zwischen Staaten und Internationalen Organisationenund zwischen Internationalen Organisationen, Neue Juristische Wochenschrift(NJW) 1991, pp. 2169 et seq.

21 Judgement of the House of Lords of 26.10.1989, 3 [1989] All E R at pp.523 et seq.; Judgement of the Court of Appeal, 3 [1988] All E R, 257 etseq.; For analysis of the case see Mallory, I., Conduct unbecoming: Thecollapse of the International Tin Council, AM. U. J Int'l. L.& Pol'y 1990,pp. 835 et seq.; Thomson, D., The International Tin Council Litigation,22 Journal of World Trade (1988), pp. 103 et seq.; Hartwig, M., Die Haftungder Mitgliedstaaten fuer Internationale Organisationen, Berlin 1993, pp.307 et. seq.

22 Interim Award of the International Chamber of Commerce Court of Arbitration,Westland Helicopters Limited v. Arab Organisation for Industrilazation etal., 23 ILM (1984), pp. 1071 et seq.
23 See Schemers, H. , Liability of International Organisations, 1 LeidenJournal of International Law (1988), at p. 8 with examples; see also Pernice,I. , Die Haftung internationaler Organisationen und ihrer Mitarbeiter, 26Archiv des Vlkerrecht (AVR) (1988), pp. 406 et seq., at p. 422.

24 M¸ller, W., Trau schau wem! Oder: Von der zivilrechtlichen Verantwortlichkeitder Mitgliedstaaten Internationler Organisationen, Neue Juristische Wochenschrift(NJW) 1991, pp. 2175 et seq., at pp. 2177- 2180, especially at p. 2180;see also the decision in the Westland Helicopters Case, 23 ILM (1984), pp.1071 et seq., at. p. 1083.

25 Harders, J. E., Haftung und Verantwortlichkeit internationaler Organisationenin Wolfrum, R. (ed.), Handbuch des Vlkerrechts, pp. 248 et seq., at p. 251(note 16).

26 Shihata, Role of Law in economic Development: The Legal Problems of InternationalVentures,
25 Revue Ègyptienne de Droit International (1969), at p. 125, seealso Seidl- Hohenveldern, I. , Piercing the corporate veil of InternationalOrganisations: The Tin Council Case in the English Court of Appeals, GYIL1989, at p. 47; Amerasinghe, C. F., Liability to Third Parties of MemberStates of International Organisations: Practice, Principle and JudicialPrecedent, 85 AJIL (1991), p. 279 points out: "There seems to be generalagreement that the issue of secondary or concurrent liability of membersof an international organisation for the latter's obligations must be decidedin the first place by reference to the constituent instruments. This documentis to be interpreted in the light of all the circumstances so as to determinethe intention, express or implied, of the parties to it."

27 Kewenig, W. A., Der Internationale Zinnrat - Ein Lehrstueck des Wirtschaftsvoelkerrechts,36 Recht der Internationalen Wirtschaft (RIW) (1990), pp. 781 et seq. atp. 783; Mueller, W., Trau schau wem! Oder: Von der zivilrechtlichen Verantwortlichkeitder Mitgliedstaaten Internationaler Organisationen, Neue Juristische Wochenschrift(NJW) 1991, pp. 2175 et seq., at p. 2179.

28 The absence of a provision excluding liability in the constitutionaldocument leads Schemers, H., Liability of International Organisations, 1Leiden Journal of International Law (1988), at p. 9 to the conclusion thatmember states are liable.

29 Ralph Gibson L. J. of the UK Court of Appeal in the Tin Council Case[1988] 3 All E. R. at p. 352/ 3.

30 Amerasinghe, C. F. , Liability to Third Parties of Member States of InternationalOrganisations: Practice, Principle and Judicial Precedent, 85 AJIL (1991),at p. 273.

31 Mann, F. A. , Die juristische Person des Voelkerrechts, 152 Zeitschriftfuer Handelsrecht (1988), pp. 303 et seq., at p. 315; Ebenroth at p. 219;Brownlie, I., Principles of International Law, 4th ed. 1990, at p. 695;v. Moench, I., Das voelkerrechtliche Delikt, 1963 at p. 262; Hoffmann, G.,Der Durchgriff auf die Mitgliedstaaten internationaler Organisationen fuerderen Schulden, Neue Juristische Wochenschrift (NJW) 1988, pp. 585 et seq.,at p. 586 and 587.

32 Krutsch, W./ Trapp, R., Commentary on the Chemical Weapon Convention,Dordrecht 1994, at p. 528.

33 Art. 31 paragraph 1 of the Vienna Convention on the Law of Treaties.

34 See M¸ller, W., Trau schau wem! Oder: Von der zivilrechtlichenVerantwortlichkeit der Mitgliedstaaten Internationaler Organisationen, NeueJuristische Wochenschrift (NJW) 1991, pp. 2175 et seq., at. p. 2177; PC-X/B/ WP. 3 paragraph 7.

35 Ebenroth, C. T./ Fuhrmann, L., Die zivilrechtliche Haftung internationalerOrganisationen und ihrer Mitgliedstaaten, Juristische Zeitung (JZ) 1989,pp. 221 et seq., at p. 217, see also Seidl- Hohenveldern, I./ Loibl, G.,Das Recht der Internationalen Organisationen einschlieflich der supranationalenOrganisationen, 5th ed., Kln 1992, no. 1909.

36 The intention of States Parties to provide sufficient money for the functioningof the future OPCW might also be expressed in other documents of the OPCW,such as policies or the financial rules, which are currently in the draftingprocess.

37 It is quite often pointed out in the discussion on liability of InternationalOrganisations that for more technical characterized organisations (suchas the OPCW), which have only a annual budget, and therefore depend on themembers states member states should be liable, whereas more economic characterizedorganisations (such as e. g. the World Bank), which have a captial to workwith, shall be solely liable.

38 See Bothe, M., Obligations and Protection of Individuals, paper presentedat the Workshop on The Convention on the Prohibition and Elimination ofChemical Weapons, Hague Academy of International Law, at p. 10 , forthcomingin Recuil de Cours: Convention on the Prohibition and Elimination of ChemicalWeapons: A Breakthrough in Multilateral Disarmament, points out, that itis a basic human right requirement, that the individual has an effectiveremedy if suffering damage. But as a general rule it is excluded againstinternational organisations, due to the immunity
of the organisation and its agents. He therefore pleads for a claim settlementprocedure of the OPCW, as the organisation would set a good legal precedentin this field; See also Pernice, I. , Die Haftung internationaler Organisationenund ihrer Mitarbeiter, 26 Archiv des Vlkerrecht (AVR) (1988), pp. 406 etseq., at p. 433; Perez Gonzalez, M., Les Organisations Internationales etle Droit de la ResponsabilitÈ, 92 RGDIP (1988), pp. 63 et seq., atp. 101.

39 Some international organisation do have such a claim settlement procedure,e. g. the ILO. Here the competence to settle such claims rests with theAdministrative Tribunal of the ILO (see Art. II (4) ILO- AT- Statute. Forfurther references see Bowett, D. W., The Law of International Institutions,4th ed., London 1982, at p. 375; this was also proposed by the ExecutiveSecretary of the PTS in PC- X/ B/ Wp. 3 paragraph 24 et seq.

40 Noyes, J. E./ Smith, B. D., State Responsibility and the Principal ofJoint and Several Liability, 13 The Yale Law Journal of International Law(1988), at p. 261 suggest this solution by addressing the issue in a broadercontext.

41 Article VIII paragraph 8 of the CWC.

42 On the practice of the IAEA see Rockwood, L., Responsibility of the internationalorganisation and its civil servants, paper presented at the Workshop onThe Convention on the Prohibition and Elimination of Chemical Weapons, HagueAcademy of International Law, at p. 5 et seq., forthcoming in Recuil deCours: Convention on the Prohibition and Elimination of Chemical Weapons:A Breakthrough in Multilateral Disarmament.

43 See note 1.