Tuesday September 7th – 1st lecture

Law of International Organizations

The International System:

 Subjects of international law

 States
 International Organizations
 Peoples/national liberation movements
 Individuals
 (Multinational / transnational) Cororations

 Exclusion from course

 Non-governmental organizations (NGOs)
 European Union

 Sovereignty and International Law

 Blaskic (Subpoena Decision) [EIL p. 412]
- Para. 40
 Sovereignty traced back to French writer: Jean Bodin. Sovereignty is highest authority in
certain area. In Bodin’s time this was the King of France, who should not be subjected to
the Emperor of the Roman Empire because this was an authority outside of France. 
denial of higher authority outside the state (emperor or pope).
 Under international law sovereignty lies with a state. When you say a state is sovereign it
is independent, reliant on itself.
 Nowadays by countries there is a denial of higher authority by states, but.. acceptance of
binding character of international law.  countries don’t deny international law but just
make excuses for their violations when they are caught. (for e.g. US made excuse for
invasion Iraq)
 Sources (cf. art. 38(1) Statute ICJ). [EIL, p. 95]
- Treaties
- Customary international law
- General principles of law  is this actually a source? Discussion
- Judicial decisions / writings highly qualified publicists (case law) case law decisions
are only interesting when well argued.
- Unilateral acts or Statements of States / decisions of international organizations 
when a state says it will do something it mind mean that this will become legally
binding.
 Sovereign equality of States
 The same rules, obligations, rights.
- Under customary international law
- Under treaties, usually the same rights and obligations for States parties to the treaty
  But: Non-Proliferation Treaty  tries to prevent spreading of nuclear
weapons. In this it is Nuclear weapons States v. non-nuclear weapons States.
 But: treaty is only binding for parties (cf. article 34 VCLT; EIL p.130) that is
States which have consented to be bound by the treaty concerned. Countries
can even ‘sign out’ if they want to.
 George Orwell, Animal far (1945)
- ‘All animals are equal’  but in the book the pigs take power…
- Then: ‘all animals are equal, but some are more equal than others’
- In real world same: Monaco not as important as China
 Article 2(1) charter UN v. article 27(3) Charter UN [EIL. P85] equality v. power of veto 
this means that actually countries are not all equal.
 Voting procedures Organizations (week 6)
 Blaskic (Subpoena Decision).
[EIL. P.412, para 40]:
- Right to equality
- But the right to equality should not be confused with the principle of equality.
 Centralization and horizontal character
 Separation of powers within States:
- Legislative branch
- Adjudicative branch
- Executive branch
- Nevertheless.. these are all within the same State
 Powers are centralized
 Territorial subdicisions
 Within International relations
- Horizontal character of functions
- Hence: limited centralization compared to national States. A horizontal system.
 Functions lie (mostly) with the States
- Law-making functions
 EU treaties:
Framework decisions; regulations and directives. The members don’t like
legislation: this would mean the sovereignty of the States becomes smaller.
- Adjudicative functions:
 Consent is required, no State can be subjected to adjudication without
having given consent: i.e. article 36(1-2) Statute ICJ, [EIL p. 95]
 Blaskic (subpoena decision) [EIL. P 412]
 However increasing acceptance of jurisdiction by international courts or
tribunals in treaties, States have come to be easier in this area of acceptance
adjudicative decisions without consent. ( for e.g. ECtHR. WTO, ITLOS, etc)
- Executive / enforcement
 Peaceful countermeasures / reprisals by States (again a horizontal function:
states against states)
 Armed force: prohibited by Charter UN, except self-defense States (other
justifications hotly debated: i.e. humanitarian intervention, pre-emptive self-
defense – a lot of debate on this)
  UN security council (one exception on the whole theme of horizontal
powers)
 Non-military measures
(article 41, charter; EIL p. 85) However the Council does not have its
own army. This means every time it wants to authorize its force it
has to call and rely upon the member states.

 International Organizations
 Continuous tension
 The law of international organizations
 Characteristics
 Interpretation Constituent Treaties

 Continuous Tension
 Sovereignty: not be bound against will
 But: many problems of a transnational or international character
- Peace and security
- Pollution / climate change  some pollution is very isolated, possible to pollute only
your own state without polluting other states. Though some other problems (global
warming) require international cooperation
- Human rights / underdevelopments  talking about rights within a state that don’t
concern other states. Since WO2 ‘shrugging shoulders-attitude’ has disappeared, a
different kind of approach was decided on, if only because what happens in a state
can also affect other states.
 Conflicting interests
- There are many conflicts and conflicts lead to:
- Alliances; earlier: communist alliances; nowadays also Slavic alliances
- West versus the rest; Islam versus the rest
- Members versus the organizations  organizations created for certain purposes but
members may for certain reasons not want to contribute to these purposes later on.
Discussion between what the organizations wants to do and what the members of
the organizations want to do. The organizations rely on members to do anything at
all.

 Law of international organizations

 ‘A common law of international organizations’  Sands &Klein; pp. 16-17
 However this common law does not exist! Why? Every organizations has its own sources,
own documents.  there is no uniform regulation of all organizations.
 - Hence: each international organization ought to be viewed on its own merits, by
reference to its:
 Constituent treaty
 Decisions, resolutions, other legal acts, and
 Established practice
 Cf. art. 4(b) ILC Draft Responsibility of International Organizations, Reader. P
78) (draft RIO) 34 members  these try to make certain texts that can be
bases for certain treaties. Now there is a completed version of draft RIO
important!!!

 A degree of cross-fertilization of basic principles

- Common provisions, common legal questions, common problems, common answers
and solutions.
- But all have their own statutes etc. so to transplant answers to legal questions from
one international organization to another:
 Is to reason by analogy
 This requires justification
 Characteristics:
- Sands & Klein pp 15-16
- Members: States / intergovernmental+ IOs
 Article 2(1)(i) VCLT international org. reader. P58 [VCLT IO] gives a definition:
Int. org. means an ‘intergovernmental organization’ , looking at this element
you could think there is reference to governments but this does not mean
int. org. are created by governments because States create them, difference!
Governments are also NOT the members: States are the members!
Governments merely appoint those who represent the States.
So:
- States as members …
- Representatives authorized by their governments (credentials)
- But: ILC Commentary art. 2 Draft RIO (reader p. 89 para 3) = a broader definition of
‘States as members’.  there are other possibilities to create members, sometimes
there are institutions. Look in reader!
 Characterics 2:
 Established by treaty / instrument government by inter. Law
- Sates, int. org. VCLT and VCLT IO [ EEIL p 130] and reader p 58]
- Art 2(1) (a) VCLTs
 Agreements government by ‘international law’
 Specifically excluded are all legal acts which are regulated by national law,
also contracts governed by national law.
- Resolution (international conference)
 Int. org created by other int. org.:
 UNIDO adopted UNICEF ( adopted by general assembly) or UN ‘development
org.’ or ‘industrial org’.
 Characteristics 3:
  Distinct will
- WHO Nuclear Weapons Opinion (reader p 33)
 ‘But..’ read quote on p. 33 para 19
 Distinct will used for autonomy, not only do what member states want to do
 (commentary) art. 2 ILC draft RIO
 ‘possessing its own int. legal personality’
 Commentary para 7:
-not under national law
-e.g. art. 104 of Charter refers to personality WITHIN the member
states but does not say if org. has personality outside member
states.
 Characteristics: Distinct will
- Capable of adopting norms, in the broadest sense, addressed to members?
Sands & Klein p 16 see also p 267-268 -
 Rules/ legislation?
 (binding) orders/ commands?
 (non-binding) recommendations? A norm does not necessarily have to be
legally binding. When a state ‘should ‘ do something it does not mean it can
be forced.
 Drafting and adoption of treaties?  consent is required
- If not, autonomous distinct will absent?

 Rules of Interpretation
 Art. 31-32 VCLT [EIL p 130 and reader p 58) you can see certain methods and rules on
interpretation
 General rule art. 31
- In good faith (generally good faith is assumed, accuse of bad faith should be proved)
- Ordinary meaning of terms (textual / literal interpretation) what do they mean?
However words can have more ordinary meanings, this leads to difficulties. Words
are not always obvious (often not)
- In context (contextual interpretation) this limits the possible meanings of words.
- In the light of object and purpose (teleological interpretation)  look at the goals
that are pursuit by the treaties to find out what the words actually mean in the
treaty. But this element would allow you to suggest broader meanings of the texts
than is actually meant  problem. Goals are always a difficult way to interpret
because of the saying goals justify the meaning, however there should be limitations
to that saying.
- Subsequent practice in the application of the treaty establishing the agreement of
the parties  when you have a treaty the parties will start implementing it and from
the process of application you may see that the parties actually start to use the thing
and you can see what it means ?
 Supplementary means (art. 32)
- To confirm meaning art. 31
- To determine meaning if:
 Ambiguous or obscure
Leads to manifestly absurd or unreasonable result
 Interpretation is about meaning! :
- Rule of interpretations = norms:
Treaties shall be interpreted in accordance with
- To determine/find meaning of terms
 Rules of interpretation 2:
- Admission Opinion 2: reader p6
“when the court can give … it may not interpret the words by seeking to give them
some other meaning …
 Special rules of Interpretation?
- Not in VCLTs: art. 31-32 and (art 5)
- WHO Nuclear Weapons Opinion Reader p 53
- “such treaties can raise specific problems of interpretation to their character which is
conventional and at the same time institutional: the very nature of the organization
created the objectives which have been assigned to it by its founders, the imperatives
associated with the effective performance of its functions, are all elements which
may deserve special attentions when the times comes to interpret these constituent
treaties”… para 19  these characteristics/ developments deserve special attention
- No claim of special status
In sands&klein p 454:
 Special rules not in constituent treaties
Art 31-32 = customary int. law
(cf. WHO Nuclear Weapons Opion, reader p 33 para 19)
- What courts have been saying is that art 31 and 32 of Vienna conv. On law of
treaties is all states are bound by it and all org. are bound by it.
Do certain org. use some special practice? You can use the practice, what is more
difficult is for e.g. in terms of human rights treaties: are these courts bound by rules
of interpretation at all? Is it practice that changes it? Is it really about interpretation
or are they actually changing it with their own practices??
- Interpretation is about finding the treaty! NOT changing it!

 The authority to interpret

- Who can interpret? Has the authority to interpret?
- States parties:
 Art. 31 and 26 VCLT: not expressed on this matter.
 NB collective interpretation is preferred over unilateral interpretation, so
accepted by all the parties, not just by one
- Absent specific provision in constituent treaty
 Organs, especially as to matters within their competence (Expenses
opinion);sands&klein pp 451-452

General assembly for e.g. is mostly concerned with provisions that deal with the
general assembly.
  If there is no rule about who has authority to interpret, interpretations
should be legal. However this does not mean that it will happen without
support.
 Advisory opinions ICJ: non-binding
- Provisions in constituent treaties
 Specific organs (NB: these are political organs with representatives of
member states and therefore act on instructions of members state)
 Binding settlement of disputes on interpretation
 Through advisory opiions of ICJ
 Through arbitration
 Through contentious jusridiction of ICJ: two states go to court and
court decides. Only binding for states that are parties to the case

Tuesday September 14th – 2nd lecture

2nd half!

Immunities (jurisdiction/execution). Inviolability, other

 Immunity from jurisdiction

 Not from observance law
 From legal process
 Art. II, section 2 (UN); art. IV section 11; art. V section 18; art. VI etc.

 Immunity from execution
 Suppose that a court has come to a substantive decision, does that mean the
judgment can be executed?  NO

Slide 24: in essence the immunity of execution applies specifically to the UN, not to officials or
representatives or experts on mission of the organization. Does not apply to civil law issues, but it
does to criminal issues.

Slide 25: inviolability: premises, archives, papers, documents and experts on mission of the UN. All
outside authorities need permission to come in, even in emergencies.
Physical security: against for e.g. protesters, and the premises also need protection from private
individuals. (e.g. bomb smuggled in.) need to know: the broad strokes of the regulation of taxes,
customs etc. not in detail.

Slide 26: focus mainly on UN, when it comes to other organizations look at the relevant articles! Is UN
immunity similar to state immunities? Signifies that one state does not have authority over another
state, and therefore cannot make binding decisions over another. Why? Sovereign states: there is no
higher authority that can make binding decisions over another state. Problem: UN is not a state and
not on international territory. It is also not sovereign, not highest authority! It is some sort of
authority because it has legal personality and take binding decisions but after all the members are
the highest authority. Thus: not state immunity which it invokes.

Slide 27: diplomatic immunity apply to UN? Firstly, diplomatic immunity is immunity for diplomats,
not organizations. Secondly, lack of reciprocity: one state sends diplomat, other sends diplomat as
well so no reciprocity. There is also no persona non grata declaration applicable to UN: in a state
when it does not like the diplomat a state can just expel this diplomat. However in the case of
international organizations (specially the UN) this is not possible for states.
Another difference: immunities officials may be invoked against their own national states  Dutch
diplomats do not have immunity in the Netherlands, however Dutch immunities officials working in
UN context are protected from prosecution in Netherlands.

Slide 28: staff of UN may not be influenced by Member states. Member states should not attempt to
this either.
Mothers of Srebrenica v. UN  does UN have immunity when failing to protect Srebrenica? The
argument was made that immunity was not necessary to the function of the UN, in this case it was
not necessary and therefore in this case immunity should not be given. The court ruled the other way
around: it is not the question if immunity is necessary, but which immunity is necessary  there is no
exception to immunity of UN in the Member states. The UN and Member states have judged that a
full immunity is necessary for the function of the UN.

Slide 29: immunity criminal jurisdiction for diplomats is absolute, cannot be prosecuted for any crime
within the time period of the diplomacy. This is different for the representatives, officials, experts of
UN: immunity is to them given only for official acts, not for private acts. The immunity is not for the
personal benefit of representatives, officials, experts; it is for either the UN or the member states.
Therefore there is a right to waive if immunity impedes the course of justice or waiver is possible
without prejudice interest UN (??). This is completely different from immunity of diplomats, since
that immunity is absolute and cannot be waived (?).

Slide 30: question: are immunities also required under customary international law? Is there state
practice saying that international organizations have the right to ask for immunities, or for the
immunities to be respected?  constant treaty practice? (sands&klein)

All the states that are party to a treaty are bound to the treaty, but what with states that are not
party to the treaty? Sands&Klein say nothing about states that aren’t party to the treaty.

Slide 31: example: Camaraswamy was appointed by UN body to make report on the integrity of
lawyers. Gave interview to newspaper in which he expressed certain concerns about the situation in
Malaysia. Result: business people start a suit against him for slander. In this case does Camaraswamy
have immunity?  he is not an official of the UN but was appointed as a special rapporteur (usually
considered as expert on mission). But did he make these statements in the performance of his
functions?  his mission was to write and investigate the integrity of lawyers so this seems to fall
under his functions. The secretary general is the one who should be consulted, but who is the one to
decide over this issue. The state of Malaysia wanted its own criminal court to have authority to
decide this. However the UN of course wanted its own courts to decide over this, though in a
situation like this, how can member states ever dispute this?  the court went in the middle:
secretary general created presumption (?) can only be determined in extreme circumstances.
Consequences? A finding by secretary general should be transmitted to the courts; the court has to
decide in limine litis  first thing to decide on is the issue of immunity immediately; financial cost
had to be returned; if there is a difference between UN and one of the parties of convention on a
case of immunity, request shall be made for advisory opinion and the opinion given by the court shall
be considered decisive.