The Law & Practice of International Organisations

Blokker

Is there really a proliferation? Are IOs really important? What is the current climate? Counter arguments: o o There is increasingly less government and more market. There may therefore be less of a need to cooperate between governments Today, states are more interested in cooperating through informal networks/frameworks, such as the Quartet (US, Russia, UN, EU in Middle East), G8, G20 (played a bigger role post credit crunch/recession-shows flexibility and ability to adapt to new circumstances). o Klabbers: there has been a change of climate from good-doers to wrong doers: see table below. It is no longer the case that where there is an international problem, an IO is automatically created. Much more critical: Over 100,00 peacekeepers and some misbehave (sexual exploitation and abuse). Much more attention to this now. We still need IOs and they are still created: o o o WTO EBRD ICPE (1970s; International Centre for Public Enterprises-less interest after fall of Communism. Now: International Centre for the Promotion of Enterprises: shows how IOs tend not to disband, but to change) o o o o OPCW (Org for Prohibition of Chemical Weapons) CTBTO PrepCom ICC International Commission on Missing Persons (origin of IO in a press conference post a G8 meeting: during civil war in Yugoslavia) etc. Created because it needed to determine its relation to the host state in Bosnia. Then there was more interest in its work round the world and so it was necessary to explain further

Context of IOs: There is a tension between the formal independence of states and their actual

interdependence. It is often the case the case that in order to exercise their independence, states are forced to co-operate. This has been increasingly structured through the medium of IOs. IOs are not therefore created to further world government/some other ideal, but to serve a practical need. Why (continue to) create IOs? Need to coordinate o Therefore the first IOs dealt with rivers, post and telegraph: there was a need to work together. The need to coordinate happened at a national level first and then an international level

Universal Postal Union in Switzerland; Envelopes: The size of envelopes: there used to be small envelopes in the Netherlands now gone, because of international developments

Locking the stable door once the horse is gone states only then willing to overcome sovereignty concerns, eg. LoN post WW1 Co-operation is in the common interest o Art 11.1 LoN Covenant: Any war, or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League. o Regulate the time taken for opening speeches at IOs

Often to be found in the constitution of the IO, eg. UPU Art 1.1 Annan to UNGA 20/9/1999: State sovereignty, in its most basic sense, is being redefined by the forces of globalisation and international cooperation

There is therefore often a tension between Virallys two poles in IO theory 1) State sovereignty 2) The concept of function (/the objective of the IO) o The difference between states and IOs is that the finality of the state is integral (i.e. it does not often have to be justified by reference to its function), whilst the finality of IOs is functional o o o The function authorises the IO to have a structure, competences and instruments of substantive law (authorisation) The function provides inherent limits to the power of the IO (moderation) The function means IOs are obliged to perform their function (obligation)

This tension is seen by the fact that states often provide the opposition to action by IOs on all three fronts w/in function o o There are often requirements for states to subjugate their interests to those of the IO (eg. Art 2.2 UNC or Art 10 EC) Obviously the effectiveness of such provisions is dependent on the states themselves and the enforcement mechanisms employed.

Objectives in studying IOs

Objective 1) Describe and analyse law of IOs 2) Contribute to practical improvements

Detail IOs have caused a shift in IL from a largely horizontal system of IL, where there are no centralised law-making bodies, no courts with compulsory jurisdiction and no enforcement of judgements to a more vertical one, at least w/in the area of competence of each IO examine the way in and extent to which this superstructure has created a more horizontal system. IOs may have similar rules and problems, allowing extrapolations from one IO to another, although it is necessary to bear in mind that the institutional structure of an IO will ultimately be determined by its specific function.

 3) Contribute to a better understanding of II law

The increasing proliferation of IOs means that it is particularly important to study them to enable (1) and (2) to take place. Klabbers: there have been 3 stages/emphases in this study: a) Understanding IOs as new phenomena (peak with LoN) b) Solving practical problems via comparative work(1945-1970s) c) Looking at IOs in a more conceptual and critical way (early 1990s).

This is especially advocated by Virally.

 Is the assumption of unity w/in diversity justified? IOs vary according to their function, the number of members they have, their ability to determine rights and obligations for members etc. 1) At any given time, IOs will face similar political events of the day (eg. the Cold War, or US dominance) 2) IOs face similar day to day problems o o o o o Method Can study the law of individual IOs. For these purposes, the comparative method is most useful, but which IOs can be compared? EU? o Virally distinguishes between: 1) IOs with international cooperation as their function leave present structures and the idea of sovereign states intact 2) IOs with integration as their function certain essential functions of states are taken removed to the IO level need certain checks and balances that are not so necessary in category (1) o Schermers and Blokker take the opposite view, that the EU should be included, although some aspects of their institutional law may be harder to compare and the reason for that may be precisely the distinction between (1) and (2) above Definition Is the definition important? o For academic and practical purposes? Eg. how to deal with break-up of Soviet Union Vienna II Future rules on responsibility of IOs Customary law Principles of law 3) There are common rules for IOs

Judicial bodies of IOs often refer to decisions of other such judicial bodies to aid in interpretation. IOs belong to all MS and to none: Lorimer paradox (1884)-Scottish lawyer need headquarters agreements and immunities and independence

o o

It determines the legal status of an organisation can then conduct themselves on an international level Organisation for Security and Cooperation in Europe (OSCE) Unclear status: states are called participating states and not members. It started as a conference. There were then follow up ad hoc conferences. In the early 1990s, it was decided to further institutionalise it. Changed from C(onference)SCE to OSCE, but still without concluding a treaty. In practice, Ned government needs to know if it is necessary to conclude a headquarters agreement. Need to know how to deal with the OSCE. Decided there was no legal person, so no treaty could be concluded with the OSCE. They had tax problems, because the staff were not e-ees of an IO. Therefore, there was no tax exemption, as there is for IO e-ees. Solution was: national law was passed stating that the organisation was to be treated like an IO for these purposes (law related to protected minorities). BUT, this could change depending on the Dutch government of the day.

Public IOs may be more effective in enforcing their ideas. Although, orgs like Amnesty, Greenpeace etc. can use the media very effectively.

The definition of IOs is not particularly clear cut and will vary depending on the purpose of the definition. Often, organisations that start as merely loose forms of international cooperation develop clearer rules and structures, such as in the case of GATT or the OCSE (Organisation for Security and cooperation in Europe). See 30 for more examples. Similarly, there can be a transition from IO to federation (eg. the Swiss Confederation, the German Confederation, the EU?). o Loose form of cooperation IO Federation

By Whom ILC pre-2003 ILC 2003

Details Often used the term intergovernmental organisation, preferring not to elaborate a definition, although clearly excluding NGOs IO = an organisation established by treaty or other instrument governed by international law and possessing its own international legal personality. IOs may include as members, in addition to states, other entities. This was introduced in the context of work on the responsibility of IOs.

Gaja (ILC Special Rapporteur) in 1st report

IO = an organisation which includes states among its members insofar it exercises in its own capacity certain government functions. This focuses on members and functions. Cf. the eventual definition, which focuses on the method of creation. (1) Form of cooperation (2) Founded by international agreement: by treaty; or by agreement by

Scherm ers and Blokker 2003

government representatives; or through development of loose cooperation. Between at least 2 states/international organisations. Agreements between branches of different governments do not normally create IOs, but Interpol shows that this can sometimes be unclear (despite not being an agreement between states, it was granted IO status by the UN in 1975: see 36), Where there is no international treaty, there must be proof of an (1) Show separate legal personality. It may be necessary to determine Cf. organisations like Amnesty

international agreement to: whether an organisation is an organ of another IO or an IO in its own right. The distinction may often be down to whether it was practical to obtain a separate international agreement. (3) Creating a new legal person. This distinguishes an IO from a treaty organ (eg. ECtHR), which usually have a will of their own, but lack legal personality With at least one organ with a will of its own, which should be formed by delegates of 2/more states and not be dependent on any particular state (2) Contain a mutual commitment by different PS (participating states). This (3) Ensure that national parliaments are involved in approving the creation may be weaker than a treaty commitment, but is still binding. of the IO and so give it democratic legitimacy.

 (4) Established under international law. See 45 for examples. Cf. Amnesty for example.

Cf. International Corporations, NGOs and informal groupings International corporation are created under the domestic law of a particular state, even if created by a treaty. The definition is not about commercial activity, as the World Bank for example borrows in international markets and makes long term loans, but was established under international law. NGOs derive their name from the nature of the work they do, i.e. they do not have governmental tasks. NGOs are not established under international law and are not created by treaties. o Some NGOs have acquired official recognition by the UN, such as the International Committee of the Red Cross, which has a number of tasks related to international humanitarian law.

How to Classify IOs Virally suggests that classification should be related to function. Universal vs Closed o Universal: Any organisation whose membership and responsibilities are on a worldwide scale have to balance membership conditions with desire for universalism need to cope with large cultural, political, economic and social differences between members and therefore recruit in a diverse geographical manner o Closed: Regional organisations Organisations of states with a common background Closed special organisations such as OPEC (Organisation of Petroleum Exporting Countries) Intergovernmental vs Supranational o Intergovernmental o Concerned with co-operation between the executives of different states decisions are made by government representatives governments may not be bound against their will in important matters IO should be able to take decisions binding MS Often wish to resist external influence More homogenous membership

Supranational

Organs taking decisions should not be entirely dependent on MS consent IO should be able to directly bind inhabitants of MS IO should be able to enforce its decisions even w/o government cooperation There should be some financial autonomy Unilateral withdrawal should not be possible No IO fulfilling all of the above criteria currently exists

Special vs General

Participants pp.52-151
General Points Participation is mainly determined by pragmatism and the need to cooperate. o o o o It is therefore the function of the IO that determines participation Seen in the external capacity of states Seen in the internal capacity as well: the system is usually 1 state 1 vote; idea of micro-states Rule emitter and rule receiver are basically the same: debdoublement fonctionnel (Scelle) There are not many organs composed of independent persons and even then, they tend to be selected on the basis of MS representation. o o MS can modify and disband IOs. Essentially, they are still Herren der Vertge The idea of state sovereignty is prevalent in this area of IO law and practice.

The ability to impose entry conditions etc. is down to the fact that states do need to cooperate and have much to gain from membership of IOs. Few universal rules in this area.

Distinguish between the internal and external role of MS Internal = states as constituent parts of the organisation External = MS as counterparts of the organisation who are confronted with decisions of the IO o o o UNSC can create binding rules under Ch VII EU and directives etc. FACTS: decision adopted at Council meeting to send aid to Bangladesh after a 1991 cyclone. EP sought annulment on the basis that it was a Council decision and therefore required the Art 272 procedure, which had not been used. Council claimed that it was adopted by individual MS and not by the Council and was therefore not subject to the annulment procedure. o HELD: ECJ upheld the Councils viewpoint: nature of an act is determined by its content and effects, not its form.

EP v Council, EP v Commission (1993)

Full Members Possible Subjects o States Statehood sometimes a requirement Micro-states

Tension between sovereign equality of states (UNC Art 2.1)/1 state-1 vote principle and the factual inequality between members and the disproportionate weight that can be given to very small populations. Also question of whether they can fulfil membership requirements and actively participate (Art 4.1 UNC) In UN, contributions depend on GDP

Might not be able to contribute troops No real solution American proposal: category of associate membership British proposal: voluntary renunciation of certain rights Both proposals violated sovereign equality of UN members and were seen as neo-imperialist

UNSC Committee of Experts 1969: never reached agreement

Liechtenstein: states during admission procedure to Council of Europe stated that it would participate fully and had always acted in a manner appropriate to its size.

Territories which arent independent states See 75 for examples of non-independent states admitted to IOs, whilst not recognising statehood Eg. UN and Ukraine, Byelorussia, Namibia before their formal independence: not really compatible with Art 4 Eg. League of Arab State and PLO Sometimes, there is a specific distinction between membership and statehood, eg. UPU or GATT: see 76 Can sometimes prove problematic and encroach on questions of foreign policy in determining whether certain delegations will be recognised: see 77 Best idea: give full powers only in fields where non self-governing territories are self-governing.

Groups of states International Coffee Organisation: member groups are allowed where they have common/coordinated coffee policies etc. Distinguish this from collective representation in an organ of an IOs May be useful for small states who dont have the resources to send delegations to all IOs (solving the problem of microstates).

IOs Rarely members; normally they have observer status and act as advisers. Logically, IOs should be able to join other IOs if they have exclusive internal competence over some aspect of policy, although whether this is possible will depend on the governing document of the IO and whether the second IO allows other IOs to become members. EC is a member of many IOs, eg. FAO, WTO etc. (see 81) The EC wants this so that it can use its increased power to negotiate

Usual interpretation is that constitutional amendments are necessary to allow IOs to become members of other IOs. WTO Art XIV.1 allowed the EC to become a full member Bank of International Settlements defined country as a sovereign state, a monetary zone w/in a sovereign state or a monetary zone extending over more than one sovereign state Some (eg. Denters) have argued for a similar interpretation of country in relation to the IMF, although its constitution does not contain a similar provision. More normal approach is that of the Food and Agriculture Organisation (FAO): Amendment to allow any Regional Economic Integration Organisation (REIO) to be admitted, although not as a full member. 1) Majority of REIO must be members (so non-members of the FAO dont get rights w/o being members) 2) REIO must have power in the FAO filed of activity 3) REIO must have the power to make binding decisions in that area Pay only administrative costs, so play a less prominent role in the IO, because budget discussions involve policy Cannot take part in non-plenary commissions. Must provide a list of exclusive competencies. Any other powers are presumed to be held by the REIO members Either the REIO votes or its members do, not both, although decisions are usually taken by consensus, not by voting ECs participation in fisheries organisations is generally along the lines of the EC being a full member and constituent EC states nit being separate members of these IOs.

Commencement of Membership o On establishment: often there is a requirement for a certain number of founding states to ratify the IO constitution first before the treaty comes into force (ICC after 60 ratifications). Sometimes there is a right for states to participate, but not vote prior to ratification, See 86 Where a founding state signs, but doesnt ratify for a long time, can they adhere at any time?

Usually require admission, because a lot could have changed.

Readmission of ex-members: no different to new membership proposals E European members withdrawal from FAO had to be readimtted Controversial example of China. ROC withdrew from GATT in 1950. In 1986, PRC stated that the withdrawal had been illegal, because ROC had not been Chinas true representative. 1987 working party considered Chinas case, but China didnt join the (then) WTO until 2001, with Taiwan joining under a month later. In other words, the long period of absence and discrepancies between GATT obligations and Chinese conduct made any other solution unrealistic: it was anew entry, not a resumption of old membership.

Admission of new members Admission by constitutional amendment May need to amend the constitution to allow for new members at all May need to amend the constitution to adapt procedures and processes to maintain voting balance for example Eg. Council of European and composition of the Parliamentary Assembly If no rule, constitutional amendment can admit new members By unilateral notification: 90 Based on assumption that adherence by any interested state will aid the organisation By admission decision of the IO: 91 All States admitted by a decision May necessitate deciding whether an entity is a state (tendency to follow UNGA practice in this) Schermers and Blokker advocate a rule of functionality, whereby the entity is admitted if it aids the function of the IO. On these lines, refusal to admit DDR to World Meteorological Organisation should be rejected. States belonging to a particular group Usually a question of fact can be determined by the secretariat of the IO. (eg. EU, ICAO) General conditions Conditions imposed by the constitution

Eg. for the UN: membership is open to all other (1) peaceloving (2) states which (3) accept the obligations contained in the present Charter and, in the judgment of the Organization, are (4) able and (5) willing to carry out these obligations. Current practice is that the concept of membership is unconditionally universal.

Advisory Opinion on Conditions of Admission of a State to Membership in the UN (1947) FACTS: the GA referred the question of whether a state called upon to vote on admission of a state to the UN could make its consent dependent on conditions not in Art 4.1 UNC , in particular whether if a state recognises that a particular state fulfils the requirements, it can make it a condition of its consent that another state be admitted to the UN. Art 4.1 provides: membership is open to all other peaceloving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. HELD: 9:6 o The natural meaning of the words used leads to the conclusion that these requirements are exhaustive. Otherwise the provision would be redundant and Members could impose any condition they liked. This interpretation is supported by the spirit and the wording of Art 4.1. o o o In any case, the wording of 4.1 is already broad and open to interpretation. No need to look at preparatory works, because the provision is sufficiently clear. Art 4.2, stating that the GA decides on a recommendation from the SC is procedural only (will be effected) and cannot change the above conclusion o Answer is no, both to the general and the particular question asked. Concurring Opinions:

Alvarez: Juridcally, he agrees with the majority, but states that a case may arise where the admission of a state is likely to disturb the international situation, eg. where such admission would give a great influence to certain groups of states/produce profound divergencies between them. Therefore, admission may refused in such exceptional cases and the ICJ must declare it has no jurisdiction. He also states that where more than one state applies simultaneously on the break up of a previous state, they might be considered together.

Azevdo: nothing really new to add, but take into account the object and purpose of the UN and the obligation to fulfil obligations in good faith (Art 2.2)

Dissenting Opinions: o Basdevant, Winiarski, McNair, Read: By setting up a system of admission and not one of mere accession by declaration, the Charter allows political considerations to come into play in the SC deciding to make a recommendation. Therefore, the UN organs are bound not to admit a state that does not conform to the requirements of 4.1, but that does not mean there is any other legal restriction on those organs. Any restriction upon a power must be clearly established (PCIJ rule of interpretation) membership is open and admission will be effected are permissive in ton, not obligatory Looked at traveaux and concluded that they support this empowerment interpretation.

There is no restriction on what can be discussed by the SC/GA: organs can regulate their own procedure according to Arts 20 and 21. The diversity of states and how they may be created etc. makes it wise to adopt this approach. There is still an obligation to act in good faith and to carry out the principles and purposes of the UN, and the SC is responsible for the maintenance of international peace and security but that does not mean that freedom is unlimited/discretion is arbitrary.

Zoricic: (1) Thinks advisory opinion jurisdiction is permissive and in this case, the court could be drawn into political criticism of an SC member. Will answer in any case, because the court gave an opinion. Generally agrees with the other dissenters. (1) The Committee drafting the provisions had as a task to consider: the extent to which it was desirable to establish limits w/in which the organisation would exercise its discretionary power with respect to the admission of new Members. Didnt want to enumerate elements to be taken into account. Intention was to give the GA discretion. (2) SCs 1y responsibility reinforces this Discussions would be difficult if a limit was placed on the freedom of expression of council members.

(3) There is no rule requiring members to give reasons for their vote, so each member is juridically entitled to vote according to his own opinion BUT, this cannot be a pretext to act arbitrarily: good faith requirement etc. Good faith is presumed, unless proven to the contrary The second question depends on the context of ex-enemy states. One SC Member (USSR) agreed to vote for the recommendation of two ex-enemy states (Italy and Finland) only on condition that the 3 other ex-enemy states (Bulgaria, Hungary and Romania) were recommended as well. Requirement in the Declaration of Potsdam and peace treaties with the 5 enemy states to support application for admission. The Declaration was subsequent to the Charter and if it does not conflict with the Charter, the Member can rely on an obligation contained in it. Therefore, the Member was entitled to maintain its interpretation (because of sovereign equality of states) and to call for simultaneous admission of ex-enemy states.

Krylov: Clearly a political question Agrees with other dissenters Went through SC and GA practice specifically and then agreed with Zoricic

COMMENTARY: o o USSR never accepted this US implicitly rejected this when it blocked admission of Democratic Republic of Vietnam and Republic of South Vietnam for other reasons

o o

China abstained from voting in 2000 on Tuvalus admission due to close relationships with Taiwan. Mosler (1958) considered that France could have found in default when it barred the UK and other countries from entry into the EC

Specific conditions can be imposed in each case: 97 Art 49 EU allows specific conditions to be imposed/negotiated in each case. o o Eg. Turkeys membership of EU dependent on solving situations re. Cyprus Often, there are economic conditions.

Acceptance of Membership is also necessary 100-101 Many conventions provide that a candidate must accept the convention under its own national law as well VCLT Art 46: state may not invoke fact that its consent has been expressed in violation of its internal law regarding competence u/l violation was manifest and concerned a rule of its internal law of fundamental importance

Date of Commencement of Membership It should be after the IO has admitted the member and the member has ratified the constitution., eg. UNC 118

Establishment of New States When states merge Egypt and Syria United Arab Republic Tanganyika and Zanzibar Tanzania North Yemen and South Yemen Yemen new state replaced old states, even where one constituent part had not previously been a member of an organisation. When states split Larger state generally recognised as the successor state The smaller state may be treated as a new state or as reviving an old state Examples include Syria, but not Austria after deAnschluss Advantages: o They resume all treaty obligations asap and automatic resumption is easier

This becomes harder the longer a state has been gone for

Re Czechoslovakia, neither one really succeeded State disintegration UN practice of not expelling Yugoslavia, but preventing it from participating in the plenary organ FRY: treated as a new member when it was admitted in 2000

Decolonization: 1978 UN Conv on Succession of States in Respect of Treaties: a newly independent state can choose to be bound only by the treaty obligations that it wishes to be bound by. This does not apply to IOs.

Termination of Membership o Withdrawal may be harmful for the IO: US and UK withdrawal from UNESCO in 1984 and 1985 reduced the budget by 30% o Re UN, troops may be committed May have lots of experience in committees etc. Allowed by constitutional provisions Often require prior notice of a year to allow time for the IO/ other MS to adapt. Notice of withdrawal can be retracted Operates immediately in IMF and World Bank UN: no constitutional right. Instead a declaration of interpretation was adopted, which disapproved of withdrawal UNC doesnt contain this right, but a declaration of interpretation was adopted, essentially indicating that it is possible. Schermers and Blokker think that the US reservation to the WHO treaty indicates that it thought it may not be able to withdraw w/o it UNESCO id not accept the withdrawal Of Poland, Hungary and Czechoslovakia . When they rejoined, UNESCO managed to recoup some of the accrued contributions

Withdrawal by MS

Where there are no such constitutional provisions

WHO never formally annulled contributions for years when states were not members, but on rejoining, allowed them not to be bound by certain interim regulations if they notified the WHO w/in 3 months. In 1955, when USSR wished to rejoin the WHO, WHO said that for rejoining states, 5% of contributions had to be paid.

VCLT 1986, Art 56: where a treaty contains no provision on withdrawal or denunciation, it is not subject to such, except for: Where it is established that parties intended to allow it See UN declaration Where a right of denunciation/withdrawal may be implied by the nature of the treaty What arguments are used to support the right to withdraw? See 135 State sovereignty, but then there is no role for PIL Equity: inequitable to be forced to stay where other states are not forced to become members Such a prohibition cannot be enforced: pragmatic argument per Schermers and Blokker; IO has to continue sending documentation etc. General principle of law: in national law it is generally recognised that membership of private organisations may be unilaterally terminated. BUT, IOs are different in character. Federated states are not normally able to withdraw from a federation Fundamental change of circumstances: see Art 62 in 1969 and 86 VCLT. Should interpret this provision restrictively Partial Withdrawal Per Schermers and Blokker, shouldnt be allowed unless expressly allowed by the constitution. Frances withdrawal only from the military cooperation (main purpose of IO) of NATO was accepted by NATO states (maybe because they didnt want France to leave completely). France said, if we can withdraw fully, we can withdraw partially.

Termination by IO Less frequent than withdrawal, but often an IO will force a MS to withdraw voluntarily

Distinguish expulsion from suspension Expulsion can be used as a sanction May harm the IO as much as it harms the member It should only be used in line with the objectives of the organisation

Expulsion can be used as a defensive measure to prevent obstructive members Only a limited number of constitutions allow for expulsion UNC Art 6, IMF, World Bank, Council of Europe, League of Arab States

Possible w/o constitutional permission? IOs often force members to withdraw voluntarily or threaten to amend the constitution to allow expulsion See egs, mostly relating to SA in 146 Can a state be expelled w/o waiting for the amendment to come into effect? It is always controversial No such general right in international law Accepted that this is allowed in extreme cases, based on 3 arguments: o o (1) Implicit power to expel an obstructive member to protect itself (2) Art 60.2 VCLT allows suspension/termination of a multilateral treaty with regard to a defaulting state in material breach of the treaty (does this include non-participation where unanimity is required?) o (3) Art 62 VCLT: fundamental change in circumstances

o o o

Disappearance of MS or loss of essential qualifications: 149 Quite rare, fairly self-explanatory Dissolution of IO Individual Obligation to be a good member Unclear if obligations can be waived To dissolve the IO

Rights and Obligations

Collective

Supranational organisations should theoretically be outside the control of MS. The EU has taken a step in this direction. The step that would actually make this final would be making it a federal state.

Associate Members: 166 This was often introduced for colonies or other non-autonomous territories This has decreased in significance, although is now sometimes granted to liberation movements/governments in exile It has also been useful for delegates of newly independent countries who could thereby obtain experience prior to independence. Usually entails membership w/o the right to vote or hold office in principal offices of the organisation. Partial Members: 169 States are full members of some organs, but not all. Has been used in the UN Practical problems: o In the UN, have to be assessed separately in the budget of the organs of which they are a member, but they are not represented in the GA (responsible for the budget) o Affiliate Members Observers: 173 Suy (legal counsel of the UN), 1978: o practice is far from being clear, uniform or complete. This is because of: (1) Variation of observers (2) Different circumstances and terms under which they acquire and practice this status o Advantage is that this minimizes political tensions due to the flexibility of the process Only in the World Tourism Organisation Open to international bodies (intergovernmental and non-governmental) and to commercial bodies Represented in the Committee of Affiliate Members which may send 3 delegates to the general congress. They may also be independently involved as observers, but not on the board. See 171

o o

Disadvantage is that the process can become chaotic practice has reached the point where it would benefit from general guidance from the parent organs of IOs

Particular question that has arisen: should a meeting be free to hear statements from the observers? General characteristics: o o Access to meetings Inability to vote Ability to speak to delegates Ability to speak and reply at meetings Receive working documents Ability to circulate documents Ability to put proposals

Often: o o o o o

Observers often have more influence in small, technical IOs. Categories of Observers o States: 180-1 Where questions of interest to them are discussed: UNGA wont grant it on a permanent basis, but other UN organs do Sometimes a stepping stone to full status: in WTO, observers must apply to become members w/in 5 years Sometimes an inherent right to send observers to organs of which they are not a part, . Not in UN, but in practice, the SC does not turn down such requests. The last time this happened was o Liberation Movements: 182-4 Originally, invitations were limited to liberation movements recognised by the OAU. Later, this was extended to the PLO (Recognised by the LAS (League of Arab States). Does not equal recognition. 1980 GA Res calling upon states to grant facilities, privileges and immunities to such observers in accordance with the 1975 Vienna Convention on the Representation of States in their Relations with IOs Western states were very critical of this, as the Convention had never entered into force and only states who were not principal hosts had ratified it. o IOs: 185-7 Agreements between the UN and specialised agencies often provide a a reciprocal right to propose agenda items and for participation w/o vote. o Private organisations: 188 ff

NGOs/civil society They often bring together experts Helps maintain contact with citizens of MS ECOSOC has the most sophisticated structure for dealing with them. Often such private IOs are consulted: ECOSOC Committee on NGOs Three groups: Organisations in general consultative status Organisations in special consultative status Other organisations are placed on the roster. See 193 for rights

Individuals and Private Companies: 196-7

WG 1 Participants: Discussion Questions

1. Purposes Conditions for Admission

U UN

1.1 To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a b breach of the peace; 1.2 To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 1.3 To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 1.4 To be a centre for harmonizing the actions of nations in the attainment of these

4.1 Membership in the United Nations is open to all other peaceloving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 4.2 The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

EU

2 The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail. 3.1 The Union's aim is to promote peace, its values and the well-being of its peoples. 3.2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. 3.3 The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price

49 Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

 (1947)

2. Advisory Opinion on Conditions of Admission of a State to Membership in the UN FACTS: the GA referred the question of whether a state called upon to vote on admission of a state to the UN could make its consent dependent on conditions not in Art 4.1 UNC , in particular whether if a state recognises that a particular state fulfils the requirements, it can make it a condition of its consent that another state be admitted to the UN. Art 4.1 provides: membership is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. HELD: 9:6 o The natural meaning of the words used leads to the conclusion that these requirements are exhaustive. Otherwise the provision would be redundant and Members could impose any condition they liked. This interpretation is supported by the spirit and the wording of Art 4.1. In any case, the wording of 4.1 is already broad and open to interpretation. No need to look at preparatory works, because the provision is sufficiently clear. Art 4.2, stating that the GA decides on a recommendation from the SC is procedural only (will be effected) and cannot change the above conclusion Answer is no, both to the general and the particular question asked. Concurring Opinions: o Alvarez: Juridcally, he agrees with the majority, but states that a case may arise where the admission of a state is likely to disturb the international situation, eg. where such admission would give a great influence to certain groups of states/produce profound divergencies between them. Therefore, admission may refused in such exceptional cases and the ICJ must declare it has no jurisdiction. He also states that where more than one state applies simultaneously on the break up of a previous state, they might be considered together. o Azevdo: nothing really new to add, but take into account the object and purpose of the UN and the obligation to fulfil obligations in good faith (Art 2.2) Dissenting Opinions: o Basdevant, Winiarski, McNair, Read:

By setting up a system of admission and not one of mere accession by declaration, the Charter allows political considerations to come into play in the SC deciding to make a recommendation. Therefore, the UN organs are bound not to admit a state that does not conform to the requirements of 4.1, but that does not mean there is any other legal restriction on those organs. Any restriction upon a power must be clearly established (PCIJ rule of interpretation) membership is open and admission will be effected are permissive in ton, not obligatory Looked at traveaux and concluded that they support this empowerment interpretation. There is no restriction on what can be discussed by the SC/GA: organs can regulate their own procedure according to Arts 20 and 21. The diversity of states and how they may be created etc. makes it wise to adopt this approach. There is still an obligation to act in good faith and to carry out the principles and purposes of the UN, and the SC is responsible for the maintenance of international peace and security but that does not mean that freedom is unlimited/discretion is arbitrary.

Zoricic: (1) Thinks advisory opinion jurisdiction is permissive and in this case, the court could be drawn into political criticism of an SC member. Will answer in any case, because the court gave an opinion. Generally agrees with the other dissenters. (1) The Committee drafting the provisions had as a task to consider: the extent to which it was desirable to establish limits w/in which the organisation would exercise its discretionary power with respect to the admission of new Members. Didnt want to enumerate elements to be taken into account. Intention was to give the GA discretion. (2) SCs 1y responsibility reinforces this Discussions would be difficult if a limit was placed on the freedom of expression of council members. (3) There is no rule requiring members to give reasons for their vote, so each member is juridically entitled to vote according to his own opinion BUT, this cannot be a pretext to act arbitrarily: good faith requirement etc. Good faith is presumed, unless proven to the contrary

The second question depends on the context of ex-enemy states. One SC Member (USSR) agreed to vote for the recommendation of two ex-enemy states (Italy and Finland) only on condition that the 3 other ex-enemy states (Bulgaria, Hungary and Romania) were recommended as well. Requirement in the Declaration of Potsdam and peace treaties with the 5 enemy states to support application for admission. The Declaration was subsequent to the Charter and if it does not conflict with the Charter, the Member can rely on an obligation contained in it. Therefore, the Member was entitled to maintain its interpretation (because of sovereign equality of states) and to call for simultaneous admission of ex-enemy states.

Krylov: Clearly a political question Agrees with other dissenters Went through SC and GA practice specifically and then agreed with Zoricic

COMMENTARY: o o o o USSR never accepted this US implicitly rejected this when it blocked admission of Democratic Republic of Vietnam and Republic of South Vietnam for other reasons China abstained from voting in 2000 on Tuvalus admission due to close relationships with Taiwan. Mosler (1958) considered that France could have found in default when it barred the UK and other countries from entry into the EC

3. How have IOs been admitted, in particular the EC Usual interpretation is that constitutional amendments are necessary to allow IOs to become members of other IOs. o o WTO Art XIV.1 allowed the EC to become a full member Bank of International Settlements defined country as a sovereign state, a monetary zone w/in a sovereign state or a monetary zone extending over more than one sovereign state Some (eg. Denters) have argued for a similar interpretation of country in relation to the IMF, although its constitution does not contain a similar provision. o More normal approach is that of the Food and Agriculture Organisation (FAO): Amendment to allow any Regional Economic Integration Organisation (REIO) to be admitted, although not as a full member. 1) Majority of REIO must be members (so non-members of the FAO dont get rights w/o being members)

2) REIO must have power in the FAO filed of activity 3) REIO must have the power to make binding decisions in that area Pay only administrative costs, so play a less prominent role in the IO, because budget discussions involve policy Cannot take part in non-plenary commissions. Must provide a list of exclusive competencies. Any other powers are presumed to be held by the REIO members Either the REIO votes or its members do, not both, although decisions are usually taken by consensus, not by voting ECs participation in fisheries organisations is generally along the lines of the EC being a full member and constituent EC states nit being separate members of these IOs.

5. Should the UN have expelled Serbia/Montenegro because of its aggressive acts in the former Yugoslavia and non-compliance with SC Resolutions? Actual situation: UNGA (on a recommendation from the SC) stated that it could not take over Yugoslavias place in the UN, although declared that Yugoslavia had ceased to exist. It was only formally admitted in 2000, as a new member. UNC does allow this in Art 6, where the principles set out in Art 2 are violated. Disadvantages: o o o o o o o o Goes against the universalising tendency Would lose revenue (although only a very small amount here) The Charter Obligations would no longer apply to them Lose opportunity to censor/show disapproval/pressure the state from w/in State likely to benefit indirectly from UN in any case. Shows strength of disapproval-being used as a sanction here BUT this may be a token of impotence Does fit with the purpose and principles of the organisation FRY responsible for split and therefore not peace-loving.

Advantages:

Rules for International Organs

General Points Work of IOs is carried out by organs Although they differ hugely, there are some common features: o o Daily work is determined by the doctrine of attributed competences All organs need rules governing their composition and functioning Powers of IOs Attribution o General: distinguish between the power of IOs and the power of organs If action is taken to fulfil one of the stated purposes of the IO, presumption is that it is not u/v: ICJ in Certain Expenses Often there are limiting provisions, eg. UNC 2.7: UN cannot intervene in matters w/in the domestic jurisdiction of MS o Aka principle of speciality; aka principle of conferred powers UNSCR 678 (1990) (Use of force against Iraq). Cuba said it violated the UNC o UNSCR 955 (creation of ICTR) Powers of IOs are restricted to those attributed to them by MS. CP. States, who can do anything u/l not permitted by PIL. IOs have no Kompetenz-kompetenz (Maastricht-Urteil (1993)) Reuter: Competence of IOs is functional and not sovereign Competence stretches to include all acts indispensable for the performance of the functions of the organisation WHO Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996): TAGLINE: no general powers, unlike states; only possess conferred powers To the IO Often disputed Provisions on the composition and credentials of delegations Quorum, frequency and duration of meetings Privileges and immunities Procedure Languages

Function vs state sovereignty poles help in understanding the composition and function of organs, but the notion is vital in understanding the power of organs

FACTS: WHO asked whether in view of the health and environmental effects, the use of nuclear weapons by a state in war or other armed conflict would be a breach of its obligations under international law, including the WHO Constitution

Art 96(b) UNC: Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities [my italics]. HELD: Preliminaries: o WHO Constitution allows WHO to request an advisory opinion from the ICJ, Art 76 and Agreement between UN and WHO in 1948 allowed the WHO to do so o o The ICJ can only exercise its discretionary power if jurisdiction is established in the first place Question is a legal question, despite political aspects: see Conditions of Admission to UN Advisory Opinion W/in the scope of its activities aka w/in the WHOs competence o Look to constitution and apply general rules of treaty interpretation: Art 31 VCLT69: interpret treaty terms in light of object and purpose, taking into account subsequent practice in the application of the treaty o Objective of WHO in Art 1: the attainment by all peoples of the highest possible level of health. List of principles in preamble stating this is be fundamental to attaining peace and security. There is then a list of functions to achieve the objective in Art 2. o Competence of WHO to deal with effects of nuclear weapons (which the WHO could deal with) is not dependent on their legality Even the function of generally to take all necessary action to attain the objective of he organisation does not have a sufficient connection with the question before the ICJ to be w/in the scope of WHO activities

WHO could only be competent to take action of primary prevention that falls w/in the functions of the WHO. None of the functions include determining the legal status of the nuclear weapons.

The Court need hardly point out that IOs are subjects of international law which do not, like states possess a general competence. IOs are governed by the principle of speciality, that is to say, they are invested by states which create them with powers, the limits of which are a function of the common interests whose promotion the states entrust to them.

Implied powers: necessities of international life may require these subsidiary powers not expressly provided for in basic documents: where it is essential to the performance of its duties (from Reparations for Injuries suffered in the service of the UN, Advisory Opinion (1949), quoting the PCIJ in relation to the ILO o Not a necessary implication for the WHO, so to give this implied power would be to ignore the principle of speciality

Also need to bear in mind the overall structure of the Charter which set up various specialised agencies and the UN, which has powers of a more general scope. Questions on the use of force and armaments are w/in UN scope

Any other conclusion would render the notion of a specialised agency meaningless. Past WHO practice confirms this: all reports look at the effects of nuclear weapons, not their legality. Resolution requesting the opinion cannot constitute practice in itself.

COMMENTARY: Statement about conferral made twice! TEU 4.1: competences not conferred upon the Union remain with MS

Situation in the EU [FILL IN]

TEU 5: Limits of Union competences are governed by the principle of conferral Under the principle of conferral, the Union shall act only within the limits of the competences

BUT, new powers have been given to the EU under Lisbon BVerfG 30/6/2009: Is the Act approving the Lisbon Treaty compatible with the GG? Yes, except certain parts. More participation righst for the Bundestag and Bundesrat in European lawmaking and treaty amendment procedures are necessary. EU must comply with principle of conferral Especially after failure of the constitutional project, MS remain Herren der Vertrge Even after entry into force of Lisbon, Germany will remain a sovereign state Still no Kompetenz-Kompetenz German implementation act amended and adopted , Germany ratified in October.

Lisbon entered into force 01/12/2009

Concept of Domestic Jurisdiction Powers in general/political IOs are often broadly defined members often seek further restrictions in domestic jurisdiction clauses: eg. UNC 2.7 (covering all UN activities except Ch VII] or Art 15.8 LoN Charter, which only covered dispute settlement Art 2.7 is often invoked, but isnt often a big obstacle, eg. Rhodesia, SA or repression of the Kurds by Iraq. The same principle is behind safeguard clauses in international economic organisations, eg. WTO and the possibility of emergency action to protect domestic producers against competitive imports (Art XIX) Danger of abuse Existence of a judicial organ is extremely useful to determine whether the use of such clauses is correct Fulfil a psychological political need. Lead to MS giving greater powers to IOs BUT dont often prevent action Often, no list of specific areas belonging to the sphere of the IO. Protocol on the application of the principles of subsidiarity and proportionality to the Amsterdam Treaty: No such clause in EC, but see Art 5 EC and subsidiarity.

Require transnational aspects that cannot be regulated by action by MS Actions by MS alone/no EC action would conflict with requirements of the Treaty Action at a Community level would produce clear benefits by reason of its scale/effects compared with action at MS level

Attribution of Powers to Organs (and therefore the relationship between them) Competences also normally conferred on organs. They are also often vaguely defined conflicts Assembly and Council in LoN had the same competence. Rectified with UN, although GA Uniting for Peace resolution shows that there may still be conflicts Sometimes the vagueness is OK, because the organ can only issue recommendations/make non-binding decisions Customary law to the effect that organs decide on their competence for themselves: ICJ is not the ultimate authority in interpretation of the Charter. each organ determines its own jurisdiction, at least in the first instance EU is an exception: introduced the institutional balance principle in Parliament v Council [1990]: each institution must respect the role of the other. Possible to penalise any breach of that rule Unique to EU, probably because the EU has substantive powers. W/in the UN there is no explicit jr. However, the ICJ has always made clear that the fact of the SC dealing with a matter should not preclude the ICJ from doing so. The ICJ is the principal judicial organ (UNC 92), while the SC is a political organ: see Nicaragua Case (1984) pp 434-5; Genocide Case 1993 at 19 In the Lockerbie Case on Libyas request for the indication of provisional measures, jr was not addressed by the ICJ, but some judges referred to it in their separate opinions. EG. Lachs: framers of the Charter did not effect a complete separation of powers and the 2 main organs should act in harmony-though not of course, in concert: basically like institutional balance

TO DO: Read articles on JR in the UN/rel between ICJ and SC: see fn48 223 Read Lockerbie case UN Secretary General vs GA

Summarise EU position and effect of Lisbon in relation to competences conferred and the relationship between the different organs: fn 43 221; fn 41 220

Delegation: 224 o o o o Many constitutions expressly allow this, eg. UNC Arts 7.2 (UN), 22 (GA), 29 (SC can create subsidiary organs), 68 (ECOSOC) Even if not, can still do so, unless there are implications which increase the obligations of the IO or its members Trend towards being more restrictive and requiring authorisation to do this: UNGA decided on this in 1974. Restrictions: No more powers can be delegated than the organ itself possesses (i.e. any restrictions must be passed on) o Responsibility may not normally be transferred. FACTS: High Authority of ECSC had delegated the equalisation of scrap prices to 2 private institutions in Brussels. The decisions of these institutions were not subject to the same conditions as the decisions of the High Authority: there was no duty to state reasons, to publish an annual report and there was no possibility of review by ECJ. HELD: Delegation contrary to ECSC Treaty. Consequences resulting from a delegation depend on whether the decisions to be taken involve a lot of discretion or whether the delegation involves clearly defined executive powers subject to strict review in light of objective criteria. The first type is a transfer of responsibility Such a transfer is not permitted : There is a guarantee to undertakings and associations made as a result of the institutional balance of powers. Delegation of a discretionary power renders that ineffective, because the specific composition of the High Authority and the rules under which it operates protect stakeholders. COMMENT: Objections are also valid for other IOs. Although the institutional balance concept is not present. The rules etc determined by the MS on composition, function, transparency etc. are there to ensure legitimacy and accountability etc. This will be lacking if the delegation is subject to the two rules above. Meroni [1957-8] ECJ

Examples from UN practice: Establishment of Ad Hoc Tribunal on War Crimes in the Former Yugoslavia: how could SC create a subsidiary organ with powers it did not have. Appeals Chamber of the tribunal stated that the SC did this to maintain peace and security. Did not completely silence critic, BUT was generally agreed to 1990s practice of authorising coalitions of the willing and able to use force increase in requirement to report and specification of mandate and duration of the operation

o o o

As a general rule, a delegation of powers can be retracted. Delegating organ is responsible for the actions of the subsidiary organ Not generally allowed, subject to 2 exceptions: 1) When gaps in the institutional structure are filled by the creation of new organs Effect of Awards ICJ (1954) decided that the GA was bound by the decisions of an administrative tribunal it had established, since that was what it had intended 2) Politically (although not legally), a long tradition of not using a power may make it hard to use it again

Sacrifice of Powers: 231

Implied Powers o Implied vs Customary Implied powers: attributed to the IO in the Constitution to give effect to intention: controversial Customary powers: during the life of the IO, MS consent to new powers for it; less controversial, as often agreed o Why? o Constitution writers cant foresee everything The world is changing: need flexibility Possibility of abuse Comes close to a general competence

Disadvantages

o o o o

Distinguish powers implied from explicit powers from powers implied from purposes and functions, although they are often conflated. Ask whether the power is necessary/essential for the organisation to perform its functions Comes from MCulloch v The State of Maryland (1819) US Supreme Court Accepted by ICJ:

Reparations for Injuries Advisory Opinion (1949): FACTS: UN rep (Count Bernadotte) killed in what is now Israel in 1947. Could the UN claim reparation from Israel? Sweden could, because he was a Swedish national, but could the UN? HELD: UN possessed capacity to bring an international claim in respect of damage caused to UN and to victims entitled through it: UN agents must be ensured of having effective protection in carrying out their functions. This was even though it was not stated in the UN Charter; in fact, explicitly decided not to say UN was an international legal person in SF Conference. Rights and duties must depend on its purposes and functions, as specified or implied in its constituent documents and developed in practice Deemed to have power not expressly provided as are conferred upon it by necessary implication as being essential to the performance of its duties. DISSENT: Hackworth (English judge): too vague cannot relate to functions/aims/objectives. Must be linked to a grant of express powers. Limited to what is necessary to the exercise of such powers. COMMENTARY: case established legal status for IOs TAGLINE: no express basis for peacekeeping forces in the UN Charter, but they were constitutional, because they related to the purposes of the UN. Looked at powers of organs. FACTS: Does the expenditure authorised by the GA in relation to peacekeeping action in the Congo (ONUC) and the expenditure relating to the UN Emergency Force (UNEF) in the Middle East(in Egypt as buffer zone) constitute expenses of the organisation w/in the meaning of 17.2. Essentially, could the GA create these peace-keeping forces, when the SC has 1y responsibility for maintenance of international peace and security? USSR and France refused to pay share of budget for these operations. Art 17.2: the expenses of the organisation shall be borne by the members as apportioned by the General Assembly HELD: What are the expenses of the Organisation? Certain Expenses of the UN Advisory Opinion (1962)

The budget, which the GA approves under 17.1 has included all types of expenses, not just administrative ones, but operational ones as well.

o o

Expenses means all types of expenses Argued that expenses relating to the maintenance of international peace and security do not fall w/in expenses of the organisation, as they fall to be dealt with exclusively by the SC and since the GA is limited to discussing, considering, studying and recommending, it cannot impose obligations to pay expenses which result from the implementation of its recommendations

SC only has primary responsibility under Art 24 UNC in order to ensure prompt and effective action. Only restriction on GA is that it should not recommend measures while the SC is dealing with the same matter u/l the SC so requests. Art 11.2 on the GAs powers states that any question on necessary action shall be referred to the SC either before or after discussion. Could also be a measure recommended under Art 14

o o

***Expenses must be tested by their relationship to the purposes of the UN*** ***When IO takes action which warrants the assertion that it was appropriate for fulfilment of the purposes of the UN, presumption is that the action is not u/v***

***If w/in scope of functions, but carried out in a manner not in conformity with the division of functions among organs, may be irregular as a matter of internal structure, but can still be an expense of the organisation: a legal person can be bound, as to third parties by u/v acts (this principle is to be found in domestic and international law)***

***Each organ must, in the first place at least, determine its own jurisdiction. ICJ was not given ultimate authority to interpret the Charter***

COMMENTARY: Blokker: important bit is: for each organ to determine its jurisdiction itself (at least in the first instance); no jr by ICJ: then, how can you resolve the question? Must rely on organ itself, o/w no legal certainty

WHO Advisory Opinion: quoted the above case, but then applied it restrictively. Note however that the ICJ addressed the nuclear issue in an advisory opinion on the same day. This probably influenced their decision.

Tadic (1995): had ICTY been established in a lawful way? HELD: Looked at implied powers of SC: allowed it under UNC 41 Trial chamber said they couldnt even look at that question Appeal chamber said the ICTY had the implied power to do so. No other court can answer this question.

o o

Accepted by ECJ Art 308 EC: if necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and the Treaty has not provided the power, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures. This allows new powers Preferred view is that this does not render the implied powers doctrine inapplicable elsewhere in the EU. Only adds powers and not objectives: Opinion 2/94 re accession to the ECHR: not allowed because it would change the whole structure of the Union This provision is subsidiary: Commission v Council [1987]

o o o

Provides huge flexibility Start with the constitution Objectives and functions Implied powers

How to find out what powers IOs have

Composition of Organs Size o o o Efficiency factor Vs Representative factor (rep of expert knowledge and members) Representation by delegation

Representation of Members: required members are legal persons

Size of delegations: VCRSRIOUC 75: size of the delegation shall not exceed what is reasonable and normal having regard to the functions of the organ or the object of the conference, as well as the needs of the particular delegation and the circumstances and conditions in the host state. Small delegation more likely to speak with one voice Large delegation more likely to contain broader expertise IO rules might require one type of representative, but in practice, it may be necessary to have different sorts of members of delegations Eg. negotiations re definition of crime of aggression. A very political issue. Superpowers are involved. Samoa is also very involved: representative is Professor Roger Clark, from Samoa, now living in US. Liechtenstein has chaired these meetings for years, despite it not being necessary for Liechtenstein foreign policy. Even though meant to be reps of governments, get experts in in this way. Governmental delegates Might contain experts (perhaps civil servants, who deal with issues on a national level) and diplomats where the experts may be too specialised Need sufficient authority to commit government ILO is the most important exception to the rule that delegations represent the governments of members representation from governments, e-ers and workers This caused problems when socialist states entered the ILO, but ILOs aspiration to be universal triumphed over the strict principle of tripartism Delegates from national parliaments Sometimes states include parliamentarians in delegations to protect government policy from later disapproval by parliament, eg. influential US senators were sent to the San Francisco Conference in 1945 to prevent a recurrence of non-ratification (think LoN) Delegates representing specific interests

Composition:

Parliamentarians must still be subject to instructions, so sometimes they are appointed as observers instead: done by the Dutch in 1971 at GA, but the observers could not participate in confidential meetings and were treated with less respect by other delegations, so this policy was reversed.

Foreign delegates Generally delegates should be MS nationals (VC75 73.1) BUT, this is not obligatory, although if they are from the host state, the host states permission should be asked (VC75 73.2) Multinational delegations Useful for small states

Obligation to send a delegation: no legal requirement. Perhaps a moral obligation to participate Credentials If the organisation is small, probably not a problem. Proved by a letter in which the government of the MS lists the names of members of the delegation (may need to mention title/special credentials etc) Issued by HSG, or Foreign Minister. An ambassador to the IO is often given delegated power to do this. If delegates are from parliament, the President of the Parliament should do this. Credentials Committee determine this Often, reports are not issued until near the end of the session, which means that delegates can take part in most of the session. (1) Where 2 governments claim to be the only lawful government Generally accepted that the GA has competence to inquire into the matter of representation and to take decisions regarding recognition. GA Res 396(V) states that the attitude adopted by the GA should be taken into account by other organs and specialised agencies Arguments of effective control vs arguments of legitimacy. The former seem to be in the ascendant

China: Mao and the Communists came to power after the 1949 Revolution. ROC government only remained in power in Taiwan. Until 1971, the UN and specialised agencies approved the ROC credentials

Cambodia after the Vietnamese invasion led to Pol Pot retreating to a border region. Didnt want to approve of Pol Pots genocide or Vietnamese invasion

GA normally meets in September, so difficulty due to WHO general congress in May or ILOs general congress in June o Different delegations were approved by the President and the governments transitional PM in relation to Zaire. The WHO recognised the credentials of both (highly unsatisfactory). The ILO requested advice from UN legal counsel, but had to make a choice, so preferred the credentials issued by the Permanent Mission of Zaire in Geneva, subject to the proviso that this did not imply recognition of the government, which was to be left to the UNGA. UNGA eventually accepted credentials issued by the President as HS. This was criticised by some countries, eg. Austria, who made it clear that they did not recognise that government.

(2) Where there is only 1 government, can rejection of credentials be used to condemn the legality of that government/to expel it from the session? Reluctance to use credentials for this, although increasing tendency to do this o Leads credentials committee/organ to consider questions of recognition, the problems of expulsion and the suspension of rights and privileges of membership. Other organs may be responsible for this and different voting majorities may be required.

In 1956, did not want to approve the Hungarian delegation, so from 11th-17th session no decision was made. Credentials were not approved, but the Hungarian delegate could participate

In 1970, UNGA refused to recognise SA delegate credentials, but the delegation from SA was nevertheless accepted as representing the member: The Hambro Formula. In 1974, concluded that after a rejection of credentials, SA could no longer participate, after which SA sent no delegation to UNGA until the end of apartheid in 1994.

In 1990, 1991 and 1992, decided to take no decision on the credential committees report in order to avoid potential problems re Israel.

In general, IO rules state that credential committees should examine credentials and the organ itself will make a decision. Initially at least, it was considered that this meant a technical verification. UN Secretariat still supports this view: recognition is not involved (unlike in bilateral relations) (1) above is generally recognised as an exception to this. (2) is not generally recognised as an exception, although as the non-Western countries who generally support this are in the majority, credentials are often used in this way. This should not be allowed: circumvents the procedures in UNC 5 and 6. Serbia and Montenegro prevented from representing Yugoslavia in 1993 in that way, not through rejecting credentials. SA w/o representation at all. Countries could make a short statement explaining how they view the credentials committee, clearly indicating non-recognition separately, eg. BRD made such a statement re Afghanistan in 1981

Representation by proxy Some IOs allow this and some dont. Where the rules are silent, assume it is possible, as some IOs expressly exclude the possibility. Prior to 1975, UN Secretariat said no unless clearly allowed for in rules. 1975 VC 42.2 allows this (although not in force yet)

Sometimes majorities come from those present and voting Pros: Allows members who cant be present to be represented Reduces the no of delegations efficiency Inconsistent with ideas of mutual discussion and persuasion Might be confusing if its not clear on whose behalf someone is speaking

Cons:

Use of Individual Experts o o Eg. in judicial organs or international secretariats Tendency for independent committees to come under increasing influence from governments (FAO and UNESCO), although there are also examples in the opposite direction (Committee on Economic, Social and Cultural Rights) o Pro: Can base decisions entirely on interests of the IO (not such a strong argument if the organ has a coordinating function o Cons: MS will want some representation. Experts may be influenced by their own governments policy Government representatives are a better guarantee of consistent policy in different organisations If the same question arises in different organisations, it will be dealt with in a similar way Where a 2y organ prepares a report for a 1y organ, it is more likely that MS will support the report in the 1y organ if they have had a hand in drafting it in the 2y organ. Government representative are backed by a large organisation, which may give them more info than individuals and means that the rep can be more easily replaced if s/he cannot attend Decisions by independent experts may be harder to implement Many individually elected experts are actually not independent of their governments or may be greatly involved in national policy o UN Office of Legal Affairs produced a memo in 1986 dealing with how to select independent experts etc. Objective criteria should be used to indicate expertise May have more prestige (more important for highly technical tasks) Experts will always be available, whereas MS may not always cooperate.

Monitored by requiring consultation with an international official or provide for international selection after consultation with MS Ensure that they cannot be easily replaced Fixed term renewable tenure Dont allow alternates

Reduce political influence by having closed meetings, without advisors

Use of Civil Servants o In their official capacity, but not as government representatives, which means that they do not have to represent what can be elaborate compromises that have been worked out at a national level on issues of controversy o o o o Negotiate before a national position has been established Often only advisory Common in Benelux W/in EU: Committees of national civil servants presided over by a Commission member prepare legislative proposals Comitology: Council has delegated power to the Commission to implement rules laid down by the Council. Committees were created, composed of government officials which must be consulted by the Commission, to retain some MS input Often controversial and seen as undemocratic: examples of decisions are British beef ban and approval of GM foods Operation of committees governed by Council Decisions Advisory procedure Management procedure (if Comm decision not in accordance with committee, have to communicate with the Council) Regulatory procedure: may only submit a proposal to the Council if there is lack of accord with the committee

Equitable Representation of Interests o Geographical representation Need an understanding of how different ideas will be received in different places. Important to have rotating memberships of non-plenary organs Usually reserve a number of seats for members of particular regions Regions can be created along many different lines, eg. in WMO, it is based partly along lines of latitude and longitude

UN has 5 regional groups: African states, Asian states, E European states, Latin American and Caribbean States, W European and other states

Specific Interests Producers vs consumers (commodity councils) Devloped vs developing states (UNDP, UNFPA) States with a big interest in something (fishing/aviation) vs those w/o ILO is only IO where representatives of the interest groups themselves sit with MS

Means of strengthening representation Attribute extra votes to the most interested members or have weighted voting Allow a member to send more than one delegation to a meeting (eg. larger no of delegates with voting rights or giving a separate delegation to a part of a state Larger states send more members to the Parliamentary Assembly of the Council of Europe Larger states have more members in the EP Members with greatest interest given seats in non-plenary organs (eg. SC): disadvantage of freezing positions May be conflicts as to who constitutes a state of chief industrial importance

Election of Non-plenary Organs o Election by the entire IO non plenary organ represents the whole of the IO Need to take account of minorities, eg. between 1950 and 1962, there was a tendency to elect Western members to subsidiary organs. When the GA failed to elect 1 non-permanent member to the SC in 1979, UN legal counsel stated that this violated Art 23 of the Charter, but SC decisions would still be binding. o Election by the region or group concerned Eg. Board of WMO: Presidents of the Regional Organisations, elected directly by the regions Eg. IMF: 290 Could a regional group block an organ by not nominating a representative?

Activities of Transnational Corporations in SA; President of ECOSOC could appoint those who had been nominated, as the resolution establishing the ad hoc committee did not require him to wait until all nominations were in and if a particular group decided they did not want representation, that should not prevent the rest of the organ from functioning constitutes a waiver

Pros: Close tie between members and organs increased confidence in organ

Cons: Might be harder to get a compromise solution, as delegates need to get instructions from many different members

Election or rotation: 295 Elections often take time and can prove controversial Rotation can therefore be useful for unimportant organisations ??? By members not having one of their nationals in the High Authority of the ECSC with a limited right of veto ???

Co-option: 296

Terms of office: 297 Experience enhances the value of an organ Take into account the purpose of the organ Some non-plenary organs only meet rarely, so a long term of office is desirable Organisation may wish to rotate seats short term For practice, see 298 Non permanent members of UNSC is 2 years ICC and ICJ: 9 years ECJ, ECtHR, I-ACtHR: 6 years Protocol 14 to ECHR: will change it to 1 period of 9 years, with no possibility of renenewal Admin tribunals of UN, ILO, World Bank and IMF: only 2/3 years Ombudsperson created in SCR 1904, para 20, who can make observations about decisions by sanctions committee to place someone on the terrorist blacklist; beginnings of jr Only appointed for 1 years, because the SCR only lasts for that period of time. Not a lot of independence for this person

Dates of replacement: 299

Staggered to preserve experience, eg. ICJ: 5 judges every 3 years BUT European Commission: all replaced together to maintain balance between different interests

Quorum o Waiting for a quorum can take a long time, so GA allows a meeting to be declared open when a 1/3 of members or of members of main committee are present BUT presence of a majority of members is required to take a decision o High level of quorum should be required in non-plenary organs, because each member represents lots of other members

Functioning Sessions o Characteristics Sessions are made up of meetings. In between meetings, sessions are considered to be adjourned. Sessions last from when they open to when they are closed. Long adjournments can be problematic, eg. Wagner [1964] ECJ, where the ECJ held that two MEPs enjoyed immunity even though there was one session a year which opened in March and was closed a year later (merely being interrupted and not closed during this time), unless the EP chose to waive this. The EP subsequently waived this immunity. Sessions should be closed and reopened during intervals There are some constitutions that restrict the number of sessions that can be held, which often leads to suspending sessions in cases when they should have been closed. o Frequency and Duration Some organs are permanently in session Depends on policy decisions that need to be taken and on the possibility of delegation Technical IOs tend to meet infrequently (UPU every 5 years): 309 Specialised organs could have one long session to complete their task, but generally do not, because: Insufficient time for administration to digest the proposed ideas Long sessions are tiring and therefore less effective Experts often cannot leave their regular posts for long periods of time o Specialised Sessions Agenda items are often divided between different sessions

Costs Distinguish administrative costs (of the secretariat, conference rooms and translations) from the travel and maintenance costs of delegations Pro covering all costs: States participate in sessions in their internal capacity benefits the IO as well as the member Payment by delegations favours rich states Delegations from further away might be unwilling to come to less important meetings or might send non-experts from local embassies unequal geographic representation at least cover travel expenses Anti covering costs: Would considerably increase the budgets of IOs Prevents having longer sessions, as budgets of IOs are more strictly controlled than national budgets Often covered for non-plenary organs, as certain members are representing others or people are there for their expertise.

Place: often at the headquarters of the IO. Advantages of other locations If discussion re a region, better to have it there PR of an IO in a particular area can benefit from having a meeting there. May encourage local development in the relevant field Members situated far away from the HQ may like this High costs Secretariats clerical staff will have to stay at HQ, as work continues there Impracticability of moving lots of docs etc reduces info that delegates will have Presence of delegates boosts staff of an IO wont have this if elsewhere Members sometimes have permanent representatives at HQ and have to transfer them too expensive Lots of debates over where to actually have the meeting

Disadvantages of other locations

Eg, Special Court for Sierra Leone met in The Hague for the case against Charles Taylor: for security reasons couldnt be dealt with in Sierra Leone: he still had a lot of supporters, who might try to liberate him from the prison. A large number of people wanted him dead as well. Needed an SC Res for this; occurred in ICC.

Transparency In public, lots of political posturing In private, can lead to compromise BUT, private meetings mean the absence of press, which may lead to less valid argumentation and means less scrutiny in general Most meetings are held in public, even the UNSC (except for discussions re appointment of the UNSG Not European Council. Now in public after RT EC Regulation re transparency means public can request documents

Documentation Massive amounts of documents in modern IOs. Some IOs/organs have tried to put limits on documentation. Why? Dont want personnel to be able to be arrested at any time Want to be able to let anyone come to the IO functional necessity and not for the personal benefit of the relevant people Examples: Eg: In The Hague, OPCW (Organisation for Prohibition of Chemical Weapons). Annual conference. Problem, because EU had imposed sanctions on Zimbabwe and there was a prohibition on issuing visas for Zimbabweans. Conflicting obligations. Zimbabwe made a political issue out of this. Visas were issued in the end. In EU rules, exemptions in particular cases for relations with IOs. Eg: 3 day meeting on Middle East conflict. US wouldnt give a visa to Yasser Arafat. UNGA had invited him. Meeting took place in Geneva. Violation of US obligations in US-UN Agreement Individual Experts like staff members Delegates of members

Privileges and Immunities at Sessions

Customary international law provides for the essential privileges and immunities and admission of an IO to territory implies acceptance of this 1) Are they given to states own nationals? No unjust interference with own nationals likely and no interference with IO when tax is charged, u/l national is the delegate for another member 2) Are they accorded when the IO is not in session? Only for a reasonable period beforehand and afterwards Often accorded until the official closing of a session, although perhaps not needed if there are long adjournments 3) Are they only necessary when delegates act in their official capacity? Full immunity from criminal jurisdiction Immunity from civil and administrative jurisdiction only to extent of acts performed in exercise of official duties (i.e. not for a car accident etc.) Not clear whether this extends to war crimes/crimes against humanity on the universal jurisdiction principle

Delegates of non-members Settle issue in agreement between host and IO No privileges or immunities beyond privilege of admission 1975 VC gives same privileges and immunities to observers as to members delegates

Delegates of other public IOs If host state is a member of the other IO, may be party to an agreement allowing privileges and immunities to staff Or the agreement with the IO may require this Often, not even the privilege of admission Generally, no immunity or privileges Obligation on US not to impede transit to and from HQ district of UN and to afford any necessary protections to persons invited also benefits this category. However, on some occasions, US has denied visas IAEA: immunities and privileges extend to all who work with IAEA

Delegates of private IOs and individuals

Procedure

On creation of a new IO, reinvent the wheel or just take another IOs rules. Eg. ICC and assembly of state parties. Assembly just took rules from UNGA

Agenda Should be communicated to members in reasonable time Organ generally in charge of own agenda Extent to which departure from agenda is allowed depends on composition of organ

General debate Occurs after adoption of agenda and election of officers 2003: UNGA gave a guideline of 20 mins per speech Most IOs dont hold general debates, because not that useful But, UNGA, it is useful: attracts HSG/foreign ministers and gives publicity for IO in national press. Also used by delegates to hold preliminary discussions on various issues Discussion of agenda items Prepared speeches often mean repeated points Rebuttals often come days after a remark is made May be used to make commitments on behalf of members Pledges for voluntary financing often subject to parliamentary approval May criticize the policy of another member right of reply to that member is normally given

Statements of delegations

Limits to freedom of speech Time limits Closure of the list of speakers; might be an exception for right of reply Closure of the debate: in UNGA, any delegate can request this at any time

Procedural motions In the following order: To suspend the meeting To adjourn the meeting To adjourn debate on the item under discussion For closure of the debate on the item under discussion

 Officers o Chairman

Raised as points of order

EU: chairman and other members of Commission appointed by common accord of governments after EP approval UNGA: chairman elected for each session, although for emergency sessions the president is the head of the delegation from which the last president was chosen. Usually rotates among regions Sometimes allow delegates of members to preside in turn to avoid drawn out elections: SC, European Council (not anymore) Presidents have considerable powers, which normally increase the longer they are in office Rules on questions of procedure Sometimes, Presidents have a casting vote

VP and Bureau Take the chair when the president is absent Participate in the bureau of the session, which is charged with general guidance of the session. Most general procedural matters are decided by the bureau Bureau is made up of President, VPs and often, rapporteurs and chairmen of congress commissions Often, universal organs strive for equitable geographic representation w/in the bureau

o o o o o o

Rapporteurs: 2y organs appoint rapporteurs to report to superior organs Organs of UN mainly rely on simultaneous interpretation Translation is very costly Official languages: languages into which all official documents are translated Working languages: language used for day to day communication Each UN organ is competent to work out its own language rules Traditionally, English and French were working languages Since 1974: Arabic, Chinese, English, Russian, French and Spanish are used in the GA as working and official languages for UNGA, committees and subcommittees (rule 51). Speeches in these languages are simultaneously translated (rule 52)

Languages

Most IOs allow delegates to make a speech in their own language, as long as they cover costs of simultaneous interpretation into one of the official languages (rule 53)

o o o

Council of Europe: English and French as official languages. German and Italian are additional working languages. Russian also a working language EU: 20 official and working languages all with equal authenticity Hambro: introduces an element of division when the end in view was unity

Policy-Making and Administrative Organs

General Points Structure of most IOs is a triad: o General congress o Non-plenary executive organ o Secretariat Originally, the only difference between the diplomatic conferences of the early C19th and sessions of plenary organs of IOs was the frequency of meeting. This regularity led to increased structure and eventually the creation of secretariats Function explains why and to what extent MS have renounced complete authority over specific matters, but sovereignty explains why the general congress is normally the supreme organ New centres of policy making in non-plenary organs and secretariats have been created which evade direct control by MS o As non-plenary organs become more powerful, their representativeness becomes more important (see UNSC debates in wake of increased use of powers post Cold War) Secretariats are supposedly independent and competent (function), but are wary of the need to be representative (sovereignty) o In practice, states have often viewed their nationals as representatives o Lorimer: they "belong to all nations and to none European Commission is unique because it has both extensive policymaking power (more than a secretariat) and independence (not just a plenary or non-plenary policy-making body) Classifying International Organs Either by function or by members (government reps or independent members) Use function, because: o This is what composition depends on o Want to know more than just which organs are independent of MS o This will enable better understanding of the development of IOs early organs were given 1) policy-making and 2) administrative functions o Becomes more complex 3) Non-plenary policy making organs meeting more frequently, which carry out day-to-day business and oversee the secretariat

Later developments: o 4) Parliamentary organs o 5) Judicial organs Not necessarily a linear development. Most IOs dont have parliamentary or judicial organs Also note that organs can be created by treaties treaty organs o Most have supervisory tasks o Problems: Need to amend the treaty to make any changes

Policy Making Organs Plenary o General Congress/Council of Ministers (full powers in all areas of IO operation) Three reasons to limit powers: 1) Normally on 1 state 1 vote principle, so stronger/more interested states sometimes refuse to confer wide powers on it 2) To limit government involvement (eg. European Council) 3) Because of complexity of subject matter or the need for speedy action W/in EU: Council of Ministers and the European Council o Junior Congresses (limited powers in all fields) Often comprised of lower level representatives (sometimes diplomats), so that meetings can be more easily arranged (cp. ministers) Analogous: COREPER, although Council cannot delegate its business, so system of A-points and B-points. GA had a junior congress called the Interim Committee, but it has not considered substantive issues since 1951 and has not met since 1961, partly because some MS argued it infringed on the powers of the SC. o Specialised Congresses (full powers in some fields) Takes highly technical subjects off of the agenda and puts them before a specialised congress Eg. ITU EU Council effectively acts like this o Plenary Commissions (limited powers in some fields) Often an organisation that carries out preparatory work Congressional Commissions Preliminary debates in general congresses take place in these UN has 6: 402 Plenary Functional Commissions

Where the subject is particularly important, such a commission will be established to prepare for congress decisions between sessions. Generally, this work is carried out by non-plenary organs To find possible solutions that are acceptable to all MS Eg. European regional organisations Established as and when the need arises

Non-Plenary o Three reasons to delegate power to non-plenary organs 1) Quicker, more efficient and cheaper than plenary organs 2) Some states may be more interested in certain situations give them a greater say 3) Organ of government reps may not be sufficiently independent o Boards are policy making organs composed of a ltd no of states Executive boards: 2y role under authority of general congress Tasks Prepare agenda for general congress and execute decisions Supervise secretariat and budget Decide on current affairs when general congress is not in session Composition Generally gov reps representing all major interests in the general congress Governing boards: have independent powers Tasks Generally a narrow field of activity, except for UNSC (maintenance of international peace and security) and Junta of the Cartagena Agreement Composition Generally, government representatives UNSC

o Not independent individuals like the EU Commission, because if the important countries are represented, then it is more likely that decisions will be put into effect o 15 members o In 1992, GA requested SG to invite MS to submit comments on a possible review of SC membership o 1993 Open-Ended Working Group on the question of Equitable Representation on and Increase in the Membership of the SC Commissions and Committees Functional Commissions: to prepare decisions in a given field; often with independent experts Consultative Commissions of Interest Groups Channel all opinions of interest groups through such a committee Eg. Economic and Social Committee of EC and Euratom Ad hoc Advisory Commissions: where there is no functional commission operates Procedural Committees Credentials committee Drafting committee General committee/bureau Regional Commissions and Groups charged with the IOs tasks in a specific region Need independence: often have their own secretariats in the region Composed of gov reps of the states in the region (and possibly reps of other interested states) President of the IO May be the head of the secretariat WMO President with lots of independent powers: useful where the executive organ only meets rarely

Secretariat Description o Bureaux were created in the C19th to administer IOs, taking responsibility away from participating states. Often under supervision of 1 of the MS o Current name of secretariat comes from LoN o Loveday compares them to national ministries o Often split into different departments/directorates and offices/services Tasks and Influence o Influence depends on: Powers granted by constitution Financial resources available Homogeneity in membership gives a secretariat a clearer message Quality of personnel o Functions Admin and clerical Rooms for meetings, translation, copying, interpreters, typists, ushers Budget preparation (collecting data and estimating costs) and some discretion in transferring parts of the budget to other parts Information To the o/s world re the IO, re the field covered by the IOs work and to members of other organs Recording work of the IO and preparation of the Annual report of the IO Collection of reports from MS Collection of other info from MS Coordination of different organs discussing the same subject Representation of the IO Especially in private law matters: renting, borrowing, buying, selling In some public law matters: SG may bring an international claim against a government on behalf of the IO

Headquarters agreements/agreements on privileges and immunities are usually made by the SG. SG issues credentials to reps of the IO Assistance to members Training courses for civil servants Observation of elections if requested (although UNSG cannot do this w/o authorisation) Depository of treaties Executive function The greater the powers given to the secretariat/the SG, the more conflict there is likely to be with MS Right of initiative (by persuading national delegations of their necessity) Good offices, mediation, conciliation, arbitration (because of independence) Performance of instructions o Powers Jackson: UN study; difficult to reduce the powers of secretariats due to the vested interests they have Provide a counterbalance to national interests but have a lack of democratic accountability o Delegation Often tempted to use o/s experts, as there is less budgetary control Seat o IOs often compete to be the seat of an IO: Brings in money Brings prestige o Sometimes an IO will establish its headquarters in a non-MS to avoid jealousy, eg. OPEC o In choosing a seat, consider (Jenks: need functional independence): Presence of an IO engenders interest in the IO choose a more important state Dont want a major power to obtain too much influence over an IO Jenks: go for a small city no time wasted in travelling and delegates and officials can stay in close contact

Wertheimer: go for a large city less likely to create a utopia sphere with no connection to reality Need all privileges and immunities Journalists need to be able to operate freely Easier if one of the official languages is spoken in the country (for officials and their families) Need adequate office space Want good weather Country with low prices Population must be willing to host the secretariat; discriminatory laws etc make this harder o Concentration of IOs? Advantages Pooling of resources Easier to transfer between IOs City likely to become more attractive Disadvantages Lose advantage of raising profile of IO in different places Current distribution of EU organs is very expensive and means lack of contact between different organs etc. o Decentralisation may occur with regional offices International Civil Servants o Appointment SG/DG: often done by the general congress or the board Election of officials other than SG weakens his/her position Tension between need for a cohesive civil service and pressure from governments to appoint their representatives Bustani Judgment ILO Tribunal FACTS:

Former DG of the OPCW was appointed for 4 years by the Conference of State Parties on the recommendation of the Executive Council. Contract renewed for 4 years 1 year before end of term. Motion proposed by USA 2 years later calling on C to resign. This failed in the Executive Council. Special Session of the Conference of State Parties called by USA where a decision to terminate his contract was taken. Bustani argued: o 1) Special Session was not convened according to correct procedure o 2) Decision lacked a legal basis: no power in Convention to dismiss DG; only to appoint/ renew term. Argued this meant could only be removed mid-term after a criminal/quasi-criminal conviction. o 3) Conference was abused: the Executive Council had already rejected such an attempt o 4) Reason for dismissal was given as lack of confidence: very vague and subjective o Requested that tribunal quash decision. Wanted contractual damages and compensation for pain and suffering in the realm of 1m (to donate to the IO) HELD: o Jurisdiction: by a 1997 letter of the DG, the OCPW accepted the tribunals jurisdiction to hear complaints concerning the non-observance of the terms of appointment of staff members and of relevant staff regulations He was an official w/in the meaning of the Tribunals Statute

Also seen as an international civil servant and therefore a member of staff It was an administrative decision, not a political one, despite being based on political considerations

o Merits: Procedurally, no problem Independence emphasised as important, protected by a limited contract term In exceptional circumstances, dismissal may be possible, but only with procedural guarantees, o/w independence would not be guaranteed decision set aside Contractual damages, compensation for moral injury of 50,000 and costs COMMENTARY: o Bustanis supporters claim that this was basically at the behest of John Bolton and was because Bustani was negotiating with Iraq for them to join the OPCW, which would have allowed inspectors access to Iraq. They also claim that many were bullied and coerced into voting against him. The US claimed polarizing and confrontational conduct, mismanagement issues and advocacy of inappropriate roles for the OPCW o Number: between 110,000 and 130,000 o Qualifications o Geographic distribution Disadvantages:

No reason for taking nationality into account, because MS shouldnt influence officials and officials have to be independent If always do this, excellent e-es lower down may not stay in the IO if certain posts are always filled by nationals of a particular MS Most suitable person might not be from a specific region Advantages: Stronger and with more influence if this is done See 503 for examples of court decisions on this, especially in the EU Rarely recruit from non-MS See 1996 case re Brazilian who applied and was rejected for a position with the European Space Agency (504) Most important for higher level e-ees o Conditions of employment Uniformity is the goal, especially w/in families of organisations, so that people doing similar jobs are not paid differently etc. jealousy 15 organisations of the UN family participate in an agreement called the common system. World Bank, IMF etc do not: their income comes from different sources and they try to recruit from the banking and finance sectors Harmonisation is also good because it encourages exchange of personnel, which is beneficial to all IOs. Grades Remuneration: tension between what is normal for different countries EC: EP was remunerated according to national scales UN uses the Noblemaire principle: level of remuneration is established by comparison with the national civil service with the highest pay levels. This is the Federal Civil Service of the US Currency the salary is paid in/set in can be an issue

Initially, no pension schemes, as large organisations are needed to make them viable. Now, the UN, EU etc have them Obligations are determined by the rules of IO, especially the staff regulations and rules Connolly: wrote a book critical of the EMU and ERM while on a period of personal leave. He was fired, which decision was upheld by the CFI and ECJ Jackson concluded that permanent staff and a career service are the best options to promote efficiency. OPCW is a non-career organisation: 7 year max started in 1999 Temporary appointments provide the following advantages: Easier dismissal Better contact with the o/s world (bring in knowledge and take out knowledge and advocacy) Rapid turnover in personnel, especially good for equal geographic distribution IOs and keeps things fresh Civil servants wont become too divorced from their own country Disadvantages of temporary positions Fewer candidates qualified persons probably wont give up a national career for a temp position Governments may send less qualified people Temps are less independent Effort required for recruitment is much greater May lead to replacement only shortly after civil servant has become fully productive National civil servants sometimes work with IOs wither on loan or on secondment. Internships There are some o Independence Relations with national governments

May be an unofficial relationship where officials are appointed temporarily and expect to return to national government service Privileges Tax Reasons to exempt: o Promotes independence of international civil servants (arbitrary tax cannot be imposed) o Principle of equality of states: host state would benefit disproportionately from what are essentially common funds o Equal treatment of staff: if sending state were to require tax, staff would have different net salaries (Burkina Fasso attempted to do this in 1985) Disadvantages of such: o Leads IO to impose its own tax Tax exemption generally limited to taxes on salaries and emoluments Other Can freely enter and leave the territory Family is exempted from immigration provisions and military service Can freely import and export furniture Repatriation rights Immunity from Jurisdiction For official acts

May not always be clear if certain acts are official acts: SG decides: Cumaraswamy Advisory Opinion (1999): Malaysian jurist gave an interview in which he made some comments about cases in Malaysian courts. Some companies alleged defamatory language and filed suits for damages. UNSG said interview was given as part of his duties as Special Rapporteur on the Independence of Judges and Lawyers. ICJ said that SG should decide and his decision should only be overturned for compelling reasons SG submits an annual report on these matters For other acts Heads of secretariats are usually granted the same immunities as diplomats SG enjoy complete immunity Disadvantages: o Diplomats may be recalled and punished at home. This is unlikely to happen for IO staff Generally not granted Waiver IO may waive the immunity Eg. European Commission lifted the immunity of the head of its tourism unit and two other officials suspected of taking bribes This is normally done by the SG, or if his/her actions are at stake, by the general congress/board UN refuses to make a general waiver for traffic violations o In 1946, Westchester County on Complaint of Donnely v Ranollo: chauffer of SGs immunity not waived for exceeding the speed limit, but court did not recognise such immunity o Safety of personnel

Convention on the Safety of UN and Associated Personnel adopted by UNGA in 1994 mainly to deal with increasing number of peace-keeping operations duty to ensure safety, release/return captured personnel and to enact a number of criminal offences under national laws, plus a prosecute or extradite clause o Legal position Originally only regulated in the service contract. Now in staff regulations, including locally recruited personnel General principles of (administrative) law of MS and international tribunals constitute a third source of law General principles yield to written sources Currently: Statutory provisions: regulate the service in general and may be unilaterally altered by the IO Contractual provisions: may only be altered by mutual agreement Legitimate for civil servants of most IOs to strike Right to establish a TU also accepted Legal Protection for Staff Administrative appeal to the next senior head of the service Staff committees with staff representatives on them help Reps of the SG and of staff: Joint Appeals Board of the UN/Joint Committee of ILO/Appeals Board of UNESCO/joint committees of the EU Some sort of judicial body Eg. ILOAT and the Bustani Case Where there is no such body, is there a remedy under national law, bearing in mind the immunity of the IO?

ECHR case: Waite and Kennedy v Germany (1999): in determining whether immunity to jurisdiction was acceptable under the ECHR, the existence of alternative means of protecting rights was a material factor. This case dealt with a dispute between the Cs and the ESA. Court decided that the ESA provided alternative means of effectively protecting the Cs rights, so there was no violation of Art 6(1). WHO, UNESCO, IMF and World Bank appoint ombudsmen to settle disputes with staff
o

European Commission

Hirad Abtahi: First legal adviser to ICC President

Advisory and Supervisory Organs

General Points Precondition for the effective implementation of norms emanating from IOs is confidence in the wisdom and legality of decisions made This can be achieved by independent organs where: o Measures are supported by an organ elected by those to whom that measure will apply; or o Measures can be scrutinised for legality and fairness by a judicial organ Parliamentary organs generally have an advisory task. Only exceptionally do they have political control In addition to judicial organs, separate supervisory organs are often created for audit purposes Why do only a limited number of organs include parliamentary organs? o 1) States prefer to control policy making in IOs general congress is the supreme organ. Organs independent of states are not always desired by them o 2) MS often transfer only limited competence to IOs, which cannot bind MS, nevermind citizens of MS w/o consent o As a rule, domestic checks and balances on governmental action in the IO sphere suffice o Creation of the EP and ECJ are directly linked to the broad powers attributed to the EU. State sovereignty explains a number of characteristics of such organs o Distribution of seats in the PA of the Council of Europe o Equitable geographic distribution of ICJ judges or the ad hoc institution How to explain the proliferation of such organs o Function may provide an explanation Need specialist knowledge For regional organs, composition etc needs to reflect membership of the IO Sometimes leads to parties not willing to submit a dispute to a court/tribunal, the majority of whose members are not familiar with the region or may be perceived to be politically biased per Lauterpacht o So might state sovereignty States want to build autonomous institutional structures that protect and promote their common interest

Emphasises the way in which IL is becoming more vertical, but only w/in specific IOs o Problems with it Sometimes just inefficient Sometimes raises issues about the unity and authority of international law (re. proliferation of courts/tribunals): Jenks May lead to forum shopping (Morgan) Suggestion that other courts be able to request advisory opinions of general issues of IL has been rejected Charney suggests that there is no substantial breakdown in the unity of central norms of general IL Proliferation of courts and tribunals (see table from PICT): presents risks (fragmentation, forum shopping and contradiction (eg. Tadic and the Nicaragua Case)

Parliamentary Organs Need for o Civil servants often over-estimate the importance of their area of work an elected parliament can control these impulses and provide legitimacy o Parliaments at a national level often have control in the following areas: Can require governments to resign government has to take note of parliamentary wishes Approval of the budget Important rules often need parliamentary approval Ability to amend draft legislation o In foreign relations, the more power is given to an IO, the less effective national parliamentary scrutiny is (especially as they remove areas of policy from treaty-making, which often has to be approved by a national parliament) o Ways in which national parliaments can exert influence over such international matters: 1) Issue instructions/directives to governments before an international decision is adopted Notification must be given to the Bundestag and Bundesrat of developments in the European Council where an implementing law is required or where law is directly applicable. This must occur before the decision in the Council In the UK, there are select committees in the HC and HL that consider proposals for EU decisions Often delegations are therefore unable to reach a compromise and it may be difficult to persuade MPs who are not familiar with the IO/who are only taking into account national interests 2) Include MPs in delegations to IOs 3) Parliaments often control financing and so can restrict the amount of money that goes to an IO (although this might be an internationally wrongful act) Note that IOs also have their own sources of funding Can get info from secretariat of the IO

o Yet there is still often a need to transfer more powers to IOs IOs with Parliamentary Organs o First one: Parliamentary Assembly of the Council of Europe composed of delegates from national parliaments o Some have no formal status as organs of the IO, eg. NATO, EFTA and OSCE based on inter-Parliamentary agreements o Slight controversy over whether to call them parliaments: see 567 Composition o Size Take into account that: 1) The most important national opinions should be heard 2) Populations of participating states should be equitably represented These two considerations are in opposition to each other EP: max of 700 in ToA. Then ToN allowed 732 For more examples, see 569 o Election of members Usually members of national Parliaments (they are there to serve their nations interest) Except for EP Advantages expected to be: Influence of EP would increase in standing with governments and with the public (enthusiasm for direct elections has waned: Jacobs, Corbett and Shackleton) BUT, lose the advantages of having sitting parliamentarians there: it was possible to have a dual mandate (be a sitting MP and MEP), although this is not very common. Most current MEPs want full time MEPs and an EP with more powers. A European civic duty to vote would lead to a sense of European citizenship not very successful Stimulation of European political parties fairly successful at integrating different MS MEPs

MEPs would be able to devote all their time to European matters MEPs should promote mainly European interests, not national ones Appointment by national parliaments may lead to an overrepresentation of majority parties Disadvantages expected to be: Improper to have elections for a body that is not a proper parliament increase powers of parliament to overcome this Diminishes the influence of members of international parliaments if they arent members of national parliaments too Difficult technically to organise elections with a uniform procedure Each member should represent approximately the same number of voters

o Parties Tasks o Control of the executive Generally no control exerted useful as a contact point for representatives of national parliaments EP is an exception: co-decision is now the ordinary legislative procedure; president of the Commission to be sworn in by the EP; monitors the Commission-can adopt a motion of censure (requires a 2/3 majority and then the Commission has to resign); can request that the Commission submit a proposal; CFSP-MEPs must be consulted; PJCCright to be kept informed and to ask questions; has to approve the budget; individual MEPs can put oral and written questions to the Council and Commission. EP can also appoint an ombudsman to deal with complaints about maladministration from any individual o Control over the budget EP has this; final right of approval, although the Council still has more power here in preparing drafts etc. EP executes the budget o Advisory function

To national parliaments through the fact that parliamentarians meet. To international organs May influence the policy of a government organ Participation in decision making See current procedures of the EU

Functioning o They meet less frequently: most members have duties in their home state and do not live where the parliament is o EP meets every month (except during the summer recess) o PA of Council of Europe meets 4 times a year o Parliamentary organs also have committees/commissions to prepare their work Haas: o they have not meaningfully controlled their various executives, nor have they legislated in any real sense, although they have attempted and partially exercised powers in both these fields o but they have acted as a spur to the formation of new voluntary elite groups across national boundaries the European political groups and the interplay among these has produced a type of diplomatic problem solving

Judicial Organs Need for o 1) Control of the legality of decisions of the IO Need for such is reduced by: a) the fact that most IOs cannot take externally binding decisions, i.e. MS that regard a decision as illegal may disregard it w/o judicial annulment b) Right of veto where binding decisions require unanimity sufficiently protects states c) According to prevailing IL states are free to interpret their own obligations states may be willing to transfer more powers to IOs if there is such protection. This is especially needed where policy decisions can be taken by majority vote, as in the EU o 2) Administrative jurisdiction over staff members

IOs often use the administrative tribunals of other IOs, as the principles on which staff are employed are very similar o 3) Control of the application of acts in domestic jurisdictions to ensure uniform interpretation More usually, the decision-making organ itself will make new rules when the old ones are not/no longer uniformly applied Options: Establish a supreme court for the IO empowered to overrule national SCs where areas have been harmonized. Allow a form of binding advice (eg. in preliminary rulings) o 4) Determination of private law where no national legal system can be applied Applicable law can generally be found by recourse to conflicts principles IO may waive immunity Existing Judicial Organs o Universal ICJ Principally a dispute resolution mechanism between states, because when it was created in 1945, it was seen as improper for a PIL court to have jurisdiction over administrative matters or to have control over the legality of acts of the IO BUT, can only use this where a state accepts the ICJ as a means of dispute resolution or if compulsory jurisdiction has been recognised in a specific declaration Advisory Opinions may be requested by GA, SC, ECOSOC and almost all IOs in the UN family Can also perform a function for other IOs Can only give an advisory opinion Questions on legality of acts can only be asked by organs themselves, not aggrieved MS or individuals GATT provided the possibility of jr, but this was not renewed in the WTO

Some administrative jurisdiction over staff ILO constitution allows for advisory opinions to be requested on its decisions Ad Hoc tribunals and the ICC ICTY ICTR ICC HRC under the ICCPR Can only make general comments, not give a judgment Committee on Economic, Social and Cultural Rights Committee on the Elimination of racial Discrimination Committee on the Elimination of Discrimination Against Women Committee Against Torture Committee on the Rights of the Child Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families International Tribunal for the Law of the Sea o Regional ECJ and CFI Can decide cases between MS, between the Commission and a MS, between the Commission and a MS, between an indiv and an institution; also role in preliminary references Cases on contracts may be brought before the court on the basis of an arbitration clause included in the contract Also jurisdiction re non-contractual liability Appellate authority re licences under Euratom Advisory duties: Under CFSP, on the compatibility of an agreement with the Treaty Can compel the retirement of a Commission member where he no longer fulfils the conditions required for performance of his duties

CFI deals with administrative stuff re staff, competition cases and Art 230 applications for annulment brought by natural or legal persons Benelux Court of Justice EFTA Court of Justice Andean Court of Justice: 624 ECtHR Can hear complaints from individuals and states Committee of ministers can request advisory opinions where the case could be brought w/in the normal procedure Workload is huge American Organs for HR African Commission on Human and Peoples Rights and the proposed African Court of Human Rights Central Commission for the Navigation of the Rhine Other river commissions European Tribunal on State Immunity Tribunal of the OECD Nuclear Energy Agency Tribunal of WEU Tribunal of International Composition in the Saar Central American Court of Justice Judicial Commission of the OAPEC Common Market Tribunal of the East African Community Court of Appeal for East Africa Court of Justice of the Common Market for Eastern and Southern Africa Tribunal of the South African Development Community o Staff Administrative Tribunals UN Administrative Tribunal (UNAT) Covers all UN personnel and ICAO and IMO and all personnel who belong to the UN Joint Staff Pension Fund In Geneva Mostly from a diplomatic or university background Judgements are binding, final and w/o appeal

It was controversial early on, and the GA asked the ICJ for an advisory opinion as to whether the UN had to come up with money to pay out on a claim, which the ICJ answered in the affirmative ILO Administrative Tribunal (ILOAT) LoN body originally Covers 39 organisations apart from the ILO (eg. UN family, EFTA, Interpol, CERN) Comprises 7 lawyers from national jurisdictions Considers disputes between the IO and staff on the basis of a staff complaint, but not vice versa Binding, final, w/o appeal Should the 2 tribunals be merged? If a claim is brought in the wrong tribunal, it may have a negative effect on time limits, although the tribunals consider that an application to one stays the time limit Less efficient and more costly to have 2 tribunals Administrative Committee on Coordination (ACC), established in 1978 proposed harmonising rules, statutes and practice of the 2 tribunals instead of immediately merging them. Not much has happened in this regard and at the time of these discussions, WBAT was created in 1980. Current divergence in caselaw unlikely to be reduced in the near future World Bank Administrative Tribunal (WBAT) For WB, IDA and IFC Created separately because: Object and nature of these IOs (i.e. financial activities) was very different to the other UN family IOs not persuasive Membership of UN is different to membership of the 3 IOs WBAT served not persuasive WB wanted to maintain independence from political organisations such as the UN more persuasive Administrative Tribunal of the IMF Established in 1992

Jurisdiction may be extended to other IOs on certain conditions Regional Administrative Tribunals: 647 o Arbitration, Conciliation, Mediation and Fact-finding Commissions There are lots: 648-669 Many disputes that could have been referred to the ICJ have been arbitrated PCA: IO established specifically for arbitration purposes Has a list of names of arbitrators to resolve disputes between states as well as private parties Only 17 cases have been submitted to arbitration before the court International Centre for Settlement of Investment Disputes Created in 1965 by World Bank to provide facilities for investment disputes 1 panel on conciliators and 1 panel of arbitrators maintained the centre o Other bodies: supervisory, such as UN HR SRs or the European Committee for the Prevention of Torture or Inhuman or Degrading Punishment (CPT) or the World Bank Inspection Panel Composition o Number of judges Generally an odd number of members. Where courts are larger than 8 members, they often operates in chambers or committees Generally larger than domestic courts, because: If one of a MS own nationals is on a court, it will inspire more confidence Expertise of a court increases if it has more members Especially important where ambiguous norms of international law are interpreted differently in different countries and general principles derive from domestic law These arguments are not so strong for supranational organs o Nationality of members Need equitable geographic representation to engender confidence and enlarge expertise

ICJ statute: in case of dual nationality, deemed to be a national of the state in which civil and political rights are normally exercised ICJ, ECtHR, I-ACtHR: a national from each party will sit, with an ad hoc judge being appointed if no such judge is available in the court Ad hoc judges ensure the national view is heard, but they disrupt the unity of the court as a collegiate body and may be less objective. Also provides problems where there are lots of parties No provision for ad hoc judges in the EU

o Qualifications ICJ, ECJ and ECtHR: limited to persons who fulfil the conditions required for holding the highest judicial office in their countries Benelux CJ: must actually hold those positions In arbitral/administrative tribunals, may want experts or former civil servants o Appointment Principal organs often appoint the members of judicial organs UN: need majority of votes in the GA and SC Only those on the list are eligible. List is compiled by PCA ECtHR: elected by the PA of the Council of Europe ECJ: governments appoint judges by mutual agreement Sometimes by drawing lots: 682 o Independence Appoint for long terms Keep personal opinions of judges a secret Ad hoc judges most likely to vote in favour of government. Permanent judges also more likely to vote for their government than other judges o AGs ECJ has 8, Benelux CJ has 3 Objective information presented to the court independently of the parties submissions

o Registrars Office Secretariat of a judicial organ is called a registry. Important for independence UN admin tribunals and the HRCs rely on the secretariats of their organisation Procedure before Judicial Organs o Access to the court Plaintiff: see 689-90 Often, only states may make applications etc. Sometimes organs can Sometimes individuals can Defendant: See 692 Often consensual Sometimes organs Exceptionally, individuals o Decision Judicial organs generally decide themselves whether they have jurisdiction and then decide the case on its merits Generally by way of judgment. May also be by way of interim measures or advisory opinions o Separate Opinions Advantages: all legal arguments receive attention; may show that law is not actually settled; if not allowed, may have to craft a compromise judgment which doesnt say anything Disadvantages: may endanger independence if MS can prevent re-election of a judge and they know what s/he personally thinks; may also undermine the persuasive value of judgments, especially as the legal order of most IOs is weak ICJ, ECtHR, ITLaw of the Sea: allowed In the ICJ, can make a declaration showing concurrence or dissent w/o giving reasons. ECJ, Court of Justice of the Common Market for Eastern and Southern Africa: no dissenting opinions

WG-Advisory and Supervisory Organs

We need organs: In national terms, we have executive, legislative and judiciary o Legislative acts are general and abstract o Executive acts are concrete applications in specific cases, normally in 1 specific case. Is this a useful distinction on the international level o Probably not-cant necessary see it on an international level Is there an international legislative? o What does a legislative body do (depends on how you define it)? Creates binding provisions Acts as a representative body Overview of organs of IOs o Plenary body: UNGA, because it passes resolutions on general issues (eg. UDHR, definition of aggression and Declaration on Friendly Relations), but not completely comparable to a national body UNGA, Council of the EU o Secretariat UNSG EU Commission also has a Secretariat General o Executive body (that implements rules/policy) In UN, SC (because it acts on concrete issues-only where there is an act of aggression etc.) EU Commission o States dont want to give up sovereignty, so the following are not common. Where they exist, they have legitimacy and power: Judicial body ICJ ECJ Parliamentary body Not at the UN level: because it doesnt have power EP V limited and at a regional/smaller level because more power is given to those IOs. Why is EU so developed To promote peace and security after 30 years war,WW1 and WW2 ECSC

Gave up sovereignty, essentially because they had to Therefore not on UN level or in other regions

Parliamentary Organs Relationship between plenary body and parliamentary body: sometimes difficult to make a distinction/they have overlapping functions, or there may be a sliding scale. Plenary body is more political to discuss, exchange vies and pass non-binding resolutions. Parliamentary bodies have more functions Functions: o Advice to other organs o Budgetary powers UNGA has to approve the budget (brings UNGA close to that) o Democratic legitimation o Control of the executive/checks and balances danger of policy making organs going beyond their limits Sometimes, power of appointment and dismissal of executive organ, eg. EP can make the Commission resign. Commission must be approved by the EP as well o Legislative power Examples: o PA of Council of Europe o EP of EU o Consultative Parliamentary Council of Benelux o PA of the Western European Union Established for security purposes as an IO. Never really successful. Dormant for over 50 years. Supposed to be security component of EU now. Composition o Depends on function o Distribution of seats: Most important national opinions should be heard Populations should be equitably represented o Examples re size: Council of Europe: 642 members, 321 principal and 321 substitutes. Each country has 2-18 representatives NATO Assembly

257 delegates from 28 NATO MS EP: 736 members (representatives according to size of the country) o Delegates from national parliaments; or o Directly elected representatives Tasks o Control over executive o Control over budget o Advisory function National parliaments Other ogans Participate in decision making

Judicial Organs Why have them o Admin jurisdiction re staff members o Application of acts w/in national legal orders o Private law o Dispute resolution Dispute resolution between MS Dispute resolution between staff members and IO o Promote friendly co-operation between states o Checks and balances Between organs Between individuals and the IO Not very common Examples

Decision Making Process

General Points

Decision = under the process of decision-making we understand what takes place in a given body of an organisation when the will of its members is coordinated and moulded into one which can and shall be considered under the relevant law of the organisation as the expression of the will of the organisation (Ustor 1971) Decisions are the expressions by which an IO concretizes its objectives Rules on decision-making processes determine the extent to which states can control the process of IO action A number of constraints are placed on states controlling decision making: o (1) Powers of the decision-making organ itself; o (2) In the EU, the Commission has the right of legislative initiative the Community interest is primary. Different to other IOs, where the most favourable position might be the SG having a right of initiative alongside MS o (3) Rules for the adoption of proposals and the preceding negotiations: MS have to convince other MS Such rules are generally attempts to balance the theoretical equality of sovereign states and their factual inequality Main difficulty is finding a principled basis for a weighted voting formula This may often be done based on the function of the IO, eg. in commodity councils etc. Broad trend from decision-making by unanimity majority decisionmaking and decision-making by consensus o Majority decision-making will not normally be appropriate in an international system which lacks common values and interests. o Consensus is generally more acceptable, but this must be seen as different from unanimity-voting/giving a veto to each member, o/w decision-making will be paralyzed.

Concept of a Decision Used here to denote all legal formulations used in concluding debates w/in IOs, ie. not restricted to legally binding decisions (eg. in the EU) This final, binding decision may be the important, but it is not always so. Preparatory actions are also important. Fact-finding and functional commissions will enumerate possible solutions Legal Basis

Wise to find consensus first, especially where there is no organ that provide constitutional interpretation prior to action and where an organ may be empowered to annul the decision after the fact

Initiative Initiatives by Governments o MS are generally the most important initiators of decisions, except in the EU: Commission has the right of initiative (although the Council and the EP can request a proposal) Initiatives by Organs o Secretariat May have power, especially re its own position Often have discretion UNSG can propose items for agendas of main organs and can bring anything to attention of UNSC that he thinks may threaten international peace and security Can often find a MS to propose a well-founded initiative o Organs of independent experts Eg. ILC Organs of the ILO In EU, Commission has right of initiative: protected in Council by need for a unanimous vote to depart from a Commission proposal: EC Art 250 Initiatives by other IOs o UN and specialised agencies have mutually empowered to propose agenda items for each other Initiatives by Interest Groups o Sometimes, where they possess a consultative status o Can in any case pressure MS to make an initiative Initiatives by Individuals o Usually only indirect o Right of citizens initiative as a result of Lisbon: 1m citizens can request that the Commission makes a proposal Drafting of the Text Preparation of Proposals o Submission

Need sufficient time for MS to carry out consultation in their respective countries Generally suggest looking at an issue, rather than a specific proposal o The Draft o Examples: UN EU Discussion of Proposals o Date of Submission o Sponsors o Amendments o Tim Limits o Package Deals o Informal Consultation o Caucuses o Negotiating Groups o Withdrawal of Proposals and Amendments o Financial Implications of Resolutions o Closure of Discussions

Decision-making by Consensus Voting Unanimity Voting Power Required Majority (in outline) Methods of Voting Conditional Voting

Entry into Force of Decisions Termination of Decisions Amendment and Revocation Termination of Membership Dissolution of the IO Political Annulment

Judicial Annulment

Decision-Making
[Always remember distinction between: Council of Europe: 47/9 MS: ECHR European Council: provide direction for EU, meeting twice a year Council of EU/Ministers: legislate] Context: why is decision-making important? Decision Making in National Background o Law-making (national name) vs Decision-making (international level) Domestic law-making means decision-making is less important Rules are already institutionalised over time States think it is important: state sovereignty often very important when IO is created o Legality: Relates to mandate-will help to define mandate and what the IO is allowed to do o Legitimacy: More in focus than it is domestically o This is the way in which cooperation is institutionalised Relates to institutional structure and powers given to organs Way in which developments in practice are responded to o Express the will of the IO Way in which the IO pursues its aims Not usually binding What kinds of decisions in IL, eg. UNSCR, UNGA Defining decision making: o Expressing will of the IO according to the IOs rules o Require more representation for abstract decision (parliaments and general congresses) and less for executive decisions Many aspects of decision-making Techniques to give most important members more say o Allowing plural membership: eg. USSR and Ukraine and Belarus o More representatives with full voting rights: eg. Council of Europe, weighted representation o Permanent seat in non-plenary organs: eg. UNSC o Weighted voting: IMF, World Bank, EU for Council decisions To find out how decisions are taken by an IO:

o (1) Constitution and rules of procedure o (2) Practice can change (1): VCLT Art 31 UNGA: consensus has been used, despite not being in UNC UNSC: Art 27(3) Decisions on all other [non-procedural] matters shall be made by an affirmative vote of nine members Including the concurring vote of the permanent members Practice has changed this: abstentions count as concurring votes: during Cold War, often a permanent member wouldnt vote for the resolution, but might abstain Namibia Advisory Opinion (1971): voluntary abstention has consistently and uniformly been interpreted as not constituting a bar to adopting a resolution in the proceedings of the SC Now, this is just accepted Provided that, in decisions under Chapter VI, and under para 3 of Art 52, a party to a dispute shall abstain from voting Consensus: No voting procedure Advantage: o Gives legitimacy to decision o States who are against it must make an official objection often leads to a vote Disadvantages: o Too much compromise o Takes a long time Legal Basis Important: o Principle of attribution Even where you vote against, still bound: Eg. UNSCR 678 (Iraq): Cuba; SC 955 (ICTR foundation): Brazil voted; but also as a routine matter o Specific other reasons

UNSC Ch VII: dont have to explicitly say acting under Ch VII, although now it usually is explicit EU: choice of legal basis determines decision-making procedure See cases before ECJ (cf. Kadi)

Initiative

MS: normally in general congress Organs: eg. Secretariat: eg. UNSG Independent experts, eg. ILC (sub-organ of UNGA) Other IOs: UN specialised agencies Interest groups: (ITO; World Intellectual Property Organisation allow) Individuals: mainly indirect Influence outcome if submit the first draft Voting/Consensus All IOs have own rules and practice General trend: unanimity majority voting consensus Consensus: originally only in practice, later in rules as well o Eg. WTO Art IX: where no member present at the meeting formally objects o Why so popular: allows incremental steps forward o Disadvantages: Agreement is illusory; weakens final text o Look at example in the book o OPCW, Art VIII.B.18: decisions on matters of substance as far as possible by consensus. If no consensus, chairman defers vote for 24 hours and tries to facilitate it. If no consensus at end of 24 hours, take decision by 2/3 majority of members present and voting Decisions of IOs Recommendations: generally non-binding; aka opinion or advice o Usually addressed to members o Little used in powerful IOs like the EU o Often used where less authority: eg. UNGA Declarations o Generally used to clarify a particular state of affairs o Eg. UDHR; Declaration on Friendly Relations o Determination of threat to peace under Ch VII; what is a non-self governing territory under Ch XI Conventions o Treaties can be drafted by IOs o Same advantages as other international treaties

o BUT, some IOs can make conventions themselves and MS do not need to ratify, eg. OECD, IEA, League of Arab States o Examples: ILO, Council of Europe Binding Rules o Change law or oblige states to do something o Eg. Art 25 UNC UNSC o Eg. Art 19 NATO Council o Can only do this where the constitution allows this EU Decisions o Regulations o Directives o Decisions Recommendations and Opinions

Financing
General Points Dont need the details Members do not like to pay contributions (they want zero growth), but they also want to pay contributions, because that can provide control over the IO: he who pays the piper, calls the tune o Eg. WIPO: if you want to register a patent, have to pay money. IO was independent and didnt need to rely on contributions from MS. MS were not enthusiastic about not paying contributions. Explanation is that it is a means to control the IO Main point is that income follows expenditure. Members are obliged to pay more if expenditure is higher than expected and get money back if it is lower defaulting members are a very big problem highlights dependence on MS Solutions: o Allow IOs to use savings and gifts to make up the shortfall, but this means defaulting states pay less o Allow IOs to sell letters of credit against defaulting states to other states Maximum contributions restrict the dependence of IOs on particular MS: explained by sovereignty (equality of states) differences in contributions should remain w/in certain bounds (0.001% - 22% in the UN) Most expenditure is administrative. Exceptions are the EU and the ESA, where operational costs are higher IOs are generally about coordination of MS policies and only exceptionally have power to carry out activities themselves UN: o Increase in operational activities since 1945 (development projects, technical assistance, peacekeeping) o In practice, most operational projects come from o/s the regular budget (despite Certain Expenses) A single budget is best. Membership of an IO implies some sort of compromise and paying for some things to which objections could be made. Budgets are often approved by simple majorities. Solutions for MS who disapprove: o Leave the IO o Withhold contributions (usually unlawful) o Special accounts o Individual programmes funded by voluntary contributions

Size of Budgets EU: half of Ned budget for 2010 UN regular budget: almost 300 times less than Ned for 2010 See the slide Expenditure Zero growth policy and its limitations o Attempt to follow this, but there are limitations o Eg. ICC: in early years, discussed zero-growth policy, but unrealistic: only a small number of staff at first and Darfur had not yet been referred. o Sometimes just need more money Classification of Costs can be: o According to the instrument by which the IO fulfils its tasks, eg. conferences, staff, equipment easy to do o According to the field of activity, eg. technical assistance, social development, industrialisation MS will know more precisely what their money is used for and easy to work out which projects are the most expensive etc Often difficult to attribute common services What about where discussions take place about peacekeeping operations in the UNSC: attributable to UNSC or peacekeeping? o ***Expenditure is also divided into:*** Administrative costs (costs of running the organisation) Often 90% of the IOs expenditure (eg. GATT, UNCTAD) co-ordination; talking; not so much operation Exceptions: EU (lots spent on agriculture, especially in early days: now c. 45% of expenditure on CAP) Financial organisations: IMF, World Bank, regional development banks ESA: satellite launches Global Fund ATM Operational costs (cost of projects performed by the IO)

Classification is important, because operational costs will need more extensive control than administrative expenditure; the organs competence must be proved in relation to operational expenditure. To determine whether expenditure constitutes expenses of the IO, the ICJ will examine its relationship to the IOs purposes: Certain Expenses Fields of Activity (some examples) o Development Assistance/Economic and Social Cohesion Assistance is often given to developing members, but also sometimes to all members. This is for the benefit of all members, eg. WMO to improve national meteorological stations so they can provide better data for all members Legal basis for this for the UN is Arts 55 and 56 UNC Need to make a distinction between assistance to members and assistance to non-members, eg. the EU has its own policy for this to help foster: Sustainable economic and social development Smooth and gradual integration of developing countries into the world economy Campaign against poverty in developing countries o Peace-keeping In the OAS, members send troops at their own expense, so not reflected in the OAS budget UN peace-keeping activities have incurred heavy expenditure To pay arrears for UNEF I and ONUC, Un issued bonds worth $200m: repayment and interest were an item of the regular budget Now this is funded by voluntary contributions: eg. UN Force in Cyprus, although the near-permanent status of this mission led to it being classified as expenses of the organisation in 1993 Costs of peacekeeping forced paid for by UN often in special accounts, which have their own scales of assessment Instruments: o Personnel Largest item on administrative budgets (3/4 of such costs)

o Sessions of the organs Sometimes partly borne by the host state 1990 Ministerial Conference of the WTO financed by private business, including Microsoft, GM, Ford, Boeing, Northwest Airlines: not a popular move; EU especially argued that there was already a problem that WTO was seen as too beholden to big business o Buildings o Equipment o General Expenses Income (1) Contributions that MS are legally obliged to pay: often makes up 90% of budget o (1) Equal contributions are exceptional (eg. OAPEC, MERCOSUR), but are in line with formal state equality, and the idea that members have the same rights. However, members generally do not receive equal benefits and the burden of equal contribution is felt differently by different MS, plus each members can pay different amounts o (2) In some IOs there have been optional classes of contribution that are chosen by the MS: UPU; ITU; WIPO; LoN (originally), PCA Fine when it was a matter of prestige to pay more It has been viable (eg. in UPU, need general congress approval to change categories), but is not really practicable in large, expensive IOs. o (3) Scales of assessment (most common): Possible criteria for contributions: Capacity to pay: UN broadly works in this way Between 0.001% and 22% Advantage is fairness, and removes reason to vote against new, expensive projects, but it conflicts with sovereignty and equality of states. Conflicts with full parity in voting rights GNP is used to assess this, in addition to Ability of state to secure foreign currency Low per capita national income

UN model used by many other agencies

UN Committee on Contributions: very technical and complex o Key criteria is capacity to pay o Also look at size of population o Adopted by consensus Interest in the work of the IO: see 980-5 Eg. Intergovernmental Organisation for the International Carriage by Rail: based on length of railway track On basis of population: Council of Europe used to do this, although increasingly take into account ability to pay IM(aritime)O Small part of budget (2.94%) divided equally amongst members [sovereign equality] 12.5% is based on the UN scale 87.5% based on gross tonnage registered by each member [function] EC: ability to pay and interest was reflected. Increasingly fund from own resources (levies and contributions under CAP; customs duties; part of VAT) and based on GNP of MS Scales of assessment should not be changed too frequently, as MS have to make provision in their own budgets, but should not be too rigid (ie included in a constitution) For special accounts, use different scales, eg. UNSC permanent members generally pay for half of expenditure of peace-keeping missions: see 991 for more details o Minimum Contributions UN: Now 0.001%; used to be 0.01% Principle of minimum contribution justified by the fact that the right to participate on a basis of full sovereign equality must be balanced by some minimum obligation to accept the responsibilities. Small states have a larger voting influence relative to population size than their large counterparts.

o o

Shouldnt necessarily be able to vote on matters with financial implications where they dont have to share the burden. Additionally, in the absence of this lower limit, some members might receive more in travel costs for their delegates to conferences than they pay towards the total expenditure of the organisation. Still have to pay for permanent mission etc. Maximum Contributions Now 22% in UN (reduced from nothing to 0% to 30% and then 25% as a result of US pressure): US would not accept paying almost 50%: see 993-996 Dont want IO to become too dependent on any MS (eg. US paid almost 70% of the United Korean Reconstruction Agency, which had to disband when the US left), but in some organisations, financial support may not be so important, eg. UPU: need international mail, so other MS would probably take up slack Participation of large states may in itself be advantageous to the smaller states BUT, poorer states will have to pick up the slack Maximum Expenditure Problems usually arise with peace-keeping funds and when developing states vote for development funds against the will of states who have to bear the burden Budget ceiling may prejudice the development of the IO Special Rates: 1002 May be granted on the grounds of special circumstances as well as lack of ability to pay, eg. Namibia had its obligations waived when it was admitted to the UN, as long as the UN Council for Namibia represented it Organs, generally general congresses should have the power to set the scales Currencies of Contributions Generally, should be paid in the currency of the host state. Where IOs are established in states with strong currencies and conversion into Swiss Francs or US$ may not be possible.

IOs suffer considerable losses because of instability of currencies and some IOs have created special suspense accounts against currency fluctuations , eg. IMF or EU o Defaults in Payment Refusal to Pay: often due to political objections W/o an organ to determine whether expenditure is lawful, Zoller has suggested each MS must have the right to determine for itself whether expenditure is legal Incentives to Pay Distribution of interest earned (ICAO, ILO) Discounts for early payment (FAO) Sanctions for non-payment included loss of voting rights, loss of membership, availability of a court judgment Eg. UN members lose voting rights in UNGA where arrears exceed 2 years worth of contributions. In UN, generally pay just in time. Most IOs dont charge interest on arrears, but UPU and ITU do (3% for first 6 months and then 6% Fill the gap with Working Capital Funds (paid for by members) In practice, these often decrease, because members remain in arrears May encourage an IO to live beyond its means UN Fund has not always been able to function properly. UNSG has borrowed from it occasionally and has sometimes borrowed funds from external sources, although not from commercial banks, but should only do so when authorised by the UNGA Separate reserve for peace-keeping operations established in 1992 by UNGA (2) Voluntary Contributions o Generally periodic (cf. gifts which are on-off) and generally for specific programmes, not just for the general purposes of the IO o Advantages:

o o o o

o
o

Correlates financial and political support Strengthens individual programmes (not necessarily subject to cuts in the general budget) May lead to a higher income: opposing members wont object to general budget. Disadvantages: Disuniting effect on the IO organisations w/in the IO. This might not be a problem where the IO is just co-ordinatory, but is a problem for supranational IOs. Indifferent states may not contribute who would have done if it was in the general budget Such projects are largely dependent on wealthy states May be unstable (especially if they come from private sources) Existing Systems: Not very significant o/s the UN Most operational activities o/s of peace-keeping operations are financed in this way in the UN Such funds must be kept separate from the general funds of the IO put in trust funds IO itself may make a contribution, especially near the beginning IOs often also accept voluntary contributions from non-members (eg. Switzerland contributed to many programmes before it joined) Pledging Conferences have become successful means of raising funds and are often held early in the GA session in September Not clear whether pledges create binding obligations and even if they are, whether sanctions can be applied should they not be honoured: 1037-8 Such contributions are often in unconvertible currencies, which is problematic for the projects New sources of funding? 1990 Ministerial Conference of the WTO financed by private business, including Microsoft, GM, Ford, Boeing, Northwest Airlines: not a popular move; EU especially argued that there was already a problem that WTO was seen as too beholden to big business

(1) and (2) are clearly different: no legal obligation under (2), but in practice, distinction is not clear, due to (1) pledging conferences and creation of expectation and (2) proliferation of separate budgets and ability of states to withhold payment on the ground that such activity is illegal' (3) Gifts o Generally just result in a decrease of members obligations o Constitutions only rarely provide that gifts will be used in addition to the budget o Sometimes, MS give gifts of furniture etc when the IO starts up o Takes responsibility away from governments and they are unpredictable o Not clear whether gifts from one IO to another are acceptable o In the UN, decisions to accept gifts are given to the SG, subject to proviso that purposes for which gift was made must be consistent with purposes etc. of UN (4) Self-Support o Income from services rendered to states (1051-7), eg. World Bank and regional development banks, IAEA o Income from services rendered to individuals (1058-61), eg. sale of documents and publications, greetings cards, loans, registration of trade marks etc in WIPO o Income from services rendered to other IOs, eg. hiring out conference halls o Income from investments and borrowing (5) Taxation: 1074-90 o Eg. Some international commodity councils charge a levy on each bag of coffee or pound of cocoa (etc.) to finance a buffer stock or other activities o Eg. Large users of oil must make contributions to a Fund for Compensation of Oil Pollution Damage o ECSC imposed levies on the production of coal and steel o EU: Levies and contributions under CAP Customs duties from Common Customs Tariff Portion of VAT Contribution from MS based on GNP

Budget

Use of the Budget o (1) Legal act by which the income and expenditure of the IO is o o estimated (2) Constitutes the legal basis for making expenses/incurring expenditure and collecting contributions Singer: (1) Decision-making organs have an adequate basis for expanding, curtailing, postponing or altering programmes and activities (2) Offers an operational plan according to which the secretariat will execute its responsibilities (3) Secretariat can estimate its operating costs and evaluate its structure (4) Auditing agency can use it to compare expenditure and appropriation Unitary budgets: Allow for greater independence for the IO Separate budgets can be used where IO wants to leave members free to determine its contribution There are an increasing number of special accounts in the UN (each peace-keeping force has one) Advantage: different scales of assessment possible Disadvantage: easier for members to withhold payment and general disintegration EU: largely expected, except for the European Development Fund and borrowing and lending activities Funds are not normally able to be shifted between sections of a budget, but secretariats can normally shift funds w/in sections, as long as this is reported to the competent organ UN budget has been much simplified since 1957 to allow for flexibility Accompanied by explanatory memoranda, including brief statement of the main changes since the last budget Most regional organisations and specialised agencies have annual budgets; other specialised agencies (FAO, UNESCO, ILO, WHO, UPU) and the UN (after 1973) adopt budgets on a biennial basis (saves a lot of work for the secretariat) Also use medium-long term financial plans

o o

Preparation o Estimates usually made by the secretariat, which may sometimes be able to propose new expenditure (if allowed by the constitution) o Budget office is therefore often a powerful part of the secretariat o Then submitted to a board, normally the executive committee (eg. Advisory Committee on Administrative and Budgetary Questions (ACABAQ) of the UNGA in the UN) o There may be revised estimates if something unseen occurs Adoption and Execution o Final decision is normally taken by the general congress (because of the principle of no taxation w/o representation), although in the EU it is adopted by the EP o Need to adopt the budget, so voting requirements are often not too stringent (simple or 2/3 majority) o If no budget adopted in EU, expenditures may be effected on a monthly basis per section of up to 1/12 of the appropriations for the previous year, as long as each month is not more than 1/12 of the draft budget in the course of preparation o 1. Could a budgetary organ veto a project by withholding necessary finances? Cannot, by refusing to adopt a budget, reduce the scope of the political decisions, but still has the role of adopting scales of assessment, eg. SC permanent members more responsibility for peace-keeping, so pay more Effect of awards of compensation made by UNAT Advisory Opinion (1954): function of approving the budget does not mean the UNGA has absolute power to approve or disapprove expenditure proposed to it, because some part of the expenditure arises out of obligations already incurred by the IO (here, awards to staff members who had been judged to have been illegally dismissed-dismissed because of Communist tendencies - McCarthyism); The same would be true of the SG incurring expenditure on the authority of the SC (because Art 24 UNC: SC has 1y responsibility), eg. where the SG increased the peacekeeping troops in Sudan (Certain Expenses (1962))

As a general rule though, expenditure can only be incurred w/in existing appropriations and o/w the agreement of the general congress is needed Problem: UNSC decides on peacekeeping mission UNGA can only discuss financing, not the mission itself. The same applies the other way round: UNSC decided that costs for UNFICYP (Cyprus) are not covered by voluntary contributions, but are expenses UNGA agreed, but concerned that this decisions did not respect the role of the GA. Same occurred for ICTY, where SG and SC decided on it being in regular budget. UNGA decided it would be in a separate account EC: Case 16/88 Commission v Council (1989): Commission asked ECJ to declare Art 6.4 of a Regulation void, which allowed the Commission to use the management committee procedure, allowing the Council to act itself where the Council disagreed with the Commissions proposals. Commission alleged this infringed (then) Art 205 EC which gave the Commission the task of implementing the budget HELD: rejected Commissions claim, because the power to implement the budget was not such as to modify the basic division of powers Similar to the ICJ decision: finance follows the substance. Execution/approval of the budget should not dictate policy Although when budgetary appropriations are made, the general congress could reopen discussion about a project, it is inappropriate o 2. Could a budgetary authority withhold funds from a particular organ on the grounds that the organ does not function properly/does not deserve further expenditure?

Budgetary authorities should deny funds where an organ could operate at a lower cost or where the work could be better done by another organ, but this should only be done where the opportunity has been given for discussion of the operation of the instrument involved Unusual eg. in the UN: 1966; ICJ was denied an increase because the 5th Committee of the GA considered the court had demonstrated in the South West Africa case that it did not substantially contribute to the principles of the UN o Special funds are provided by the budget to cover unforeseen circumstances. Need SG authorisation to use this. Contingency fund is 0.75% of the budget o Surpluses Where income surpasses estimated expenditure (eg. from services IO provides) Some is put in reserves and some may be distributed to members. Where expenditure falls short of the estimate Surplus returned to members Audit o Internal audit External audit

UN 2 major problems in the LoN: o Which organ decides: not clear in constitution o Rigid scale of assessment o lessons learned from this is Art 17 UNC: UNGA considers and approves. Shall be apportioned by the UNGA

EU

Review of UNSCRs
Case Note Start with facts EC framework o Art 307: prior agreements UN framework o Art 103: takes precedence o w/in this framework: Art 24(2): in accordance with Purposes and Principles of the UN Art 1(3): achieve international cooperation in promoting and encouraging respect for HR who checks this ICJ: Namibia advisory opinion Not a review court, but could look at it ICJ: Lockerbie US and UK wanted to extradite the alleged perpetrators. Submitted resolution to UNSC requiring Libya to extradite them. Libya said we can extradite or prosecute under the Montreal Convention. Libya asked for provisional measures preventing this ICJ denied provisional measures, but indicated (like in Namibia) that it had a power of review (still indirect) BUT, settled by agreement: Under Scottish criminal law, against Libyans, held in the Netherlands. Indicates a certain power to review UNSCRs. Is the UNSC free from legal obligations? What was envisaged by the drafters? No constitutionalised system, like in the EU Drafters envisaged a constitutional balance o Firstly, organs themselves need to check compliance with UNC In any case, individuals cannot make claims here and the ICJ has been very indirect Tadic, Trial Chamber, 10 August 1995

FACTS: Tadic questioned legitimacy of the institution as a defendant before the ICTY. The Trial Chamber had to consider whether the SC in establishing the ICTY acted outside of its functions. Didnt deal with it in much depth. It held that as a criminal tribunal with clearly defined powers, it had no authority to investigate the legality of its creation by the SC. Said it was a non-justiciable, political question. However, it went on to make the following comments on the Tadics assertions: 1. The SC has broad discretion re: Chapter VII operations- suggests that they are not reviewable. 2. The competence of the international tribunal is narrowly defined in Article 1- to prosecute persons responsible for serious violations of international humanitarian law. That is the full extent of its competence. 3. There is no procedure whatsoever for determining the validity of acts of organs of the United Nations: the Court referred to the Namibia Advisory Opinion and Lockerbie. 4. The SC did not act arbitrarily in establishing the Tribunal- quite the opposite. 5. The accuseds right to a trial by a tribunal established by law (A14, ICCPR) was not prejudiced- this phrase simply means that it be preestablished. 6. It was argued that Article 29 does not allow for the establishment of criminal tribunals when it refers to the creation of subsidiary organs. The Court noted that o (a) there is nothing to say it excludes courts and tribunals; and o (b) this is a Chapter VII measure, not a creation of a subsidiary organ under Chapter VI. o Besides, if the GA has the power to create an administrative tribunal (Effect of Awards case), then surely the Security Council can create such a body in the exercise of its wide discretion to act under Chapter VII. 7. Re: The wrongful primacy of the ICTY over national courts, it was held that because the tribunal established has been called upon to try which are not crimes of a purely domestic nature, sovereignty arguments cannot be upheld. There can therefore be no objection to an international tribunal properly constituted trying these crimes on behalf of the international community.

8. Re: whether the crimes had to be linked to an international armed conflict, Court pointed out that international armed conflict was not a jurisdictional criterion of Article 2 (grave breaches) and that Articles 3 and 5 each apply to both internal and international armed conflicts under customary international law. The Trial Chamber concluded therefore that it had jurisdiction, regardless of the nature of the conflict, and that it need not determine whether the conflict is internal or international. However, the statute of the ICTY was narrower than CIL and it is clear from the wording that the crimes must be linked to an armed conflict, be it internal or international.

Tadic, Appeals Chamber, October 1995 The Appeals Chamber said every court has Kompetenz-Kompetenz (not a general review court) and then went on to conclude the ICTY was legitimate, dealing with the following issues: o 1. Was there really a threat to the peace justifying the invocation of Chapter VII as a legal basis for the establishment of the International Tribunal? Wide discretion to determine and make recommendations; even if the armed conflict was internal, it would still be a threat to the peace o 2. Assuming such a threat existed, was the Security Council authorized, with a view to restoring or maintaining peace, to take any measures at its own discretion, or was it bound to choose among those expressly provided for in Articles 41 and 42 (and possibly Article 40 as well)? Wide discretion in Article 39, channeled through Articles 41 and 42. o 3. In the latter case, how can the establishment of an international criminal tribunal be justified, as it does not figure among the ones mentioned in those Articles, and is of a different nature? Article 41: measures not involving the use of forceexamples given in the Article are just illustrative examples.

Re: the internal/international issue, the Appeals Chamber examined the context in which the Security Council acted indicates that it intended to achieve the purpose of bringing violators of IHL to justice without reference to whether the conflicts in the former Yugoslavia were internal or international.

This examination of the SCs intentions seems to go much further than the clearly stated purposes of the Court, as the TC pointed out. Shows how IOs develop differently: EU more like a state. In other IOs, review is an exception, eg. UNAT etc.

Legal Order
General Points The lack of unity/coherence in international law/the international legal system when compared to national law is compensated to some extent by IOs, each of which has a legal order of its own. o Is there an international legal order? Netherlands exceptional in referring to promotion of international legal order in Art 90, Constitution o What is the legal order of IOs? Basis: constituent instrument Rules that create a system (including 2y rules) distinguish IO legal orders from other treaties Hart: RoR, rules of change, rules of adjudication More developed in IOs than in general public international law BUT, still limited to field of operation of the IO IOs to some extent compensate for the primarily horizontal, 1y rule-dominated general IL system, as they allow for change etc. Not clear whether the legal orders of IOs are part of or separate from the international legal order. This is why some people see constituent instruments of IOs as treaties between states and some see them as constitutions. Cohesion of legal orders varies greatly. EU law is very coherent, because of the development of direct effect and supremacy. Where domestic legal orders are responsible for implementation, effect of decisions is less International law making is becoming more vertical: o Detter (1966) identified that international law-making had been largely institutionalised in permanent international organs o Hierarchy of legal rules, with the constitution at the apex o Treaty face of the constituent instrument can be explained by state sovereignty o Constitution face can be explained by function

Constitution: Lauterpacht: question of what IOs are is really much less important than what they can do; and the answer in each case is largely dependent upon the relevant constitution

ILC definition: constituent treaty together with the rules in force of the organisation Most important differences between a constitution of an IO and other treaties (eg. tax treaties, extradition treaties etc): o Create new legal persons: ICJ in WHO Advisory Opinion (1996) at [19]: their character is conventional and at the same time institutional inherently dynamic/autonomous o More often contain 2y rules o Reservations are usually forbidden (eg. WT, OPCW, ICC): Reservations undesirable for 2 reasons: (1) Equality of MS precludes reservations Form part of IO, participate in decisions (2) Reservations to original constitution cannot keep abreast of subsequent amendments, particularly where change occurs by practice or interpretation. If no specific rule, Art 20(3) VCLT 69 requires approval of reservation by competent organ. Such acceptance turns reservation into bilateral act Examples of reservations entered in absence of relevant provision Switzerland & LoN special position in relation to sanctions, in light of neutrality: accepted by Council Austria & UN neutrality no objections, hence acceptance US & WHO reservation of right to withdraw in absence of such a provision. WH Assembly accepted w/out dissent thereby creating an agreement between the WHO and the US (?) USSR & ILO: DG ILO replied ILO does not accept reservations. USSR subsequently acceded w/out reservation. Yugoslavia & ICAO reservation to Art 5. Depository state (US) considered unanimity required. 8 Objections, Yugoslavia could not be admitted. Acceded 6 years later w/out reservation. Interpretative Declarations

US & IMF/WB US did not put in such a declaration, but requested official declarations, and proposed amendments; considered position so strong that it could achieve ends via internal machinery. o Constitutions have 2 sets of provisions: Substantive (basic) rules of the IO Institutional rules: organs and powers; decision-making o Both sets of rules need dynamic/flexible aspects (for adaptation to societal changes) and static aspects (for certainty) Tunkin: The role of UN practice in developing or modifying provisions of the Charter has become one of the major legal and political problems Higgins: One of the special characteristics of international law is that violations of law can lead to formation of new law Annan: while purposes should be firm and principles constant [static], practice and organization need to move with the times [flexible] Examples: Substantive law: Art 51 UNC (requires an armed attack) and pre-emptive/preventative strikes Peacekeeping not UN force as envisaged in Art 43 UNC, but developed in practice by the UNGA: Certain Expenses Authorisation to use force by UNSC: not found in the UNC Need rigueur and dynamism: no use of force, but potentially flexible exceptions/rules of interpretation Institutional law: Art 27(3) UNC: concurring votes required by P5 on other (non-procedural) matters may include abstentions: ICJ in Namibia Advisory Opinion: accepted consistent practice: fits with VCLT Consensus decision-making: find rules re majorities in UNC, but decisions generally taken by consensus especially since the 1970s

Some are too static: World Bank (wanted to give private loans for stuff in developing countries). Set up IFC (International Finance Corporation in 1956) and IDA (International Development Agency in 1960 more flexible terms) Some are too dynamic: UPU changed lots until 1964; ITU attempted to change this: 1195 EU: 2 separate treaties: TEU and TFEU rules on amendment basically the same More examples of change: ESA decision-making. Rules for amending constitution need notification of acceptance from all MS; rules for amending Annex 3 (implementing rules) can amend by unanimous decision of Council NATO: from collective self-defence to out of area operations (eg. ISAF in Afghanistan). Constitution hasnt been amended. It has been done by consensus agreement about new strategic concepts. WTO: Sutherland report and consensus (way of decision-making in WTO, but often cant reach consensus) UN 2004-5: High Level Panel on challenges and change re collective security system Outcome Document One technique to achieve certainty: Freeze the constitution during the first few years allows IO to establish itself: ECSC during first 5 years ICC Statute Art 121: amendments may only be proposed after 7 years after entry into force, but note Turkeys proposal to add the crime of terrorism following 9/11, despite lack of entry into force (occurred 01/07/2002) ICC Statute Art 123: review conference 7 years after entry into force convened by the UNSG (will happen later this year: 31 May 11 June)

Will look at crime of aggression under Art 5(1)(d) and 5(2) need to adopt a provision under Arts 121 and 123 Such provision shall be consistent with the relevant provisions of the Charter of the UN Charter way to link 2 legal orders UNSC has primary competence to determine whether there has been an act of aggression committed by a state under Art 39 UNC Act of aggression by the state of which the individual is a leader is a precondition of the crime P5 say UNSC has to have determined an act of aggression before ICC has jurisdiction. But Art 39 refers to primary competence. What about the UNGA or the ICC, especially where UNSC has not discussed it? compromise text proposed by Liechtenstein (permanent representative to UN was in charge of the working group) UNC Art 109: review conference o Withdrawal only allowed if treaty expressly allows for this (VCLT 69 Art 56) or all other members allow. Allowed for the first time in EU post-Lisbon o Constitutions change constantly, so the concept of tacit renewal is important: think change by practice (Art 27(3) UNC) o On the one hand, seen as treaties between states governed by VCLT 69 (Art 5 states that the convention applies to constituent instruments of IOs w/o prejudice to any relevant rules of the IO). On the other hand, seen as constitutions containing ground rules for living bodies. Amendment of the Constitution o May be to remedy some deficiency or to deal with unforeseeable developments o 61 amendments in specialised agencies between 1945-66. Phillips divided such amendments into 5 categories: Structural (often size of executive) Membership (withdrawal or expulsion)

Powers and duties (rarely increased) Revisions of procedure Editorial changes to improve clarity o May vary the constitution rather than amend it by empowering organs to do this Example: Intergovernmental Maritime Consultative Organisations (IMCO) constitution states in Art 44 that the HQ shall be in London, but the general congress was empowered to change this if necessary Constitutional requirements o VCLT 69 Art 39 states that states may amend a treaty by mutual agreement (this is the default), although per Schermers and Blokker, whether this rule will override a specific provision in the treaty: 1663 o Extra-constitutional amendment: IMF in 1968 introduced special drawing rights o (1) May be a temporary period where amendment is not possible, eg. ECSC prohibited this from 1953-8, although there were nevertheless 2 amendments; ICC: no amendment for 7 years post entry into force o (2) Co-operation of organs also required: Art 48 TEU required prior consultation with EP and sometimes with the Commission o (3) Unanimity: often where the IO is complex and invasive, eg. Art 48 TEU. Sometimes only certain articles require amendment Blokker: unanimity is problematic. It may be better to let dissenters withdraw or not to accept amendments not supported by important powers LoN used a negative clause for approval which stated that those members who had not ratified would be presumed to agree where no objection was lodged (re. PCIJ) o (4) Qualified majority Examples: 108 UNC; 36 ILO; 73 WHO; 18 IAEA; 121 ICC; 32.4 AU Generally, adoption and ratification by 2/3 of MA In UN, 2/3 must include the P5 Should new or departing MS be included? 1176: ICAO only includes MS at the date of adoption of the amendment

Some commodity councils use QMV and MS may cease to be MS unless they approve amendments in time Advantages: Flexibility/practicality allows amendments even in large organisations Eg. UNC has been amended to allow ECOSOC to enlarge Disadvantages: States will be bound against their will It discourages states from joining the IO (allowing withdrawal mitigates this problem) May still take a considerable amount of time/no guarantee of swift action 1st WHO amendment took 12 years Have some limits on what can be done by QMV, eg. no changing objects and purposes o (5) Decision General congress w/o ratification by MS Amendment Procedure o Usually provided for in the constitution: Unanimity is workable if the IO is small If it is too difficult, may create a new IO, eg. LoN UN New IO may exist alongside previous IOs, eg. World Bank IFC & IDA Revision

Different Types of Decisions of IOs Internal Rules External Rules o Recommendations o Declarations o Conventions o Binding Rules

 Effect Description

Recommendati ons Legal

Declarations

Conventions

Binding Rules

Other sources of IL that apply to IOs Jus cogens: VCLT 53, 64 General principles of IL: o ICJ has applied these from the outset: PCIJ Advisory Opinion 13 on Competence of the ILO o Might also be regional principles of law, see for example the ECJ: 1337 Customary law: this develops quickly in IOs, because IOs can express themselves through resolutions

Legal Status
General Points Lauterpacht: in itself the attribution of personality to an entity means nothing Legal personality is now generally considered to be the most important constitutive element of international organisations (Sands and Klein) National legal orders contain natural persons and legal persons. Humans are natural persons. They are generally legal persons (although note limits of age, capacity etc and in the past, slaves were not legal persons). Other legal persons must gain such quality and national law prescribes how this occurs. Function and state sovereignty explain why the issue has been so fiercely debated In the era of absolute state sovereignty, status of legal person was reserved for states. States did not want to create sorcerers apprentices and so the constituent instruments of early IOs (eg. the UN) did not contain provisions on legal personality However, this was not a practical approach: IOs were required to conclude agreements and sometimes had the power to bind MS: see Reparations for Injuries (1949) functions justified personality and delimited its scope Cases of the EU and OSCE show the problems that can be created by not having legal personality There has been an increased interest in issues of accountability, responsibility and liability o Consequence of separate legal personality must be the possibility of holding IOs accountable for their own actions. o Where this is not sufficiently guaranteed, there has been increasing resistance: see the rejection by national courts of immunity claims o It is therefore good that the ILC has begun to address this issue o International Tin Council crisis has indicated a move towards MS having a responsibility to put funds into IOs to discharge debts, but no responsibility to compensate creditors directly. In national law, status is less controversial than in IL, because state sovereignty was less threatened. o Look to constitutions for help: may give general personality, or specify what they can do In relation to dissolution, states can dissolve IOs, but their functions may be continued elsewhere if necessary

Status in IL Personality o Operation of IOs w/o personality: The German Customs Union (Zollverein) had all action taken for it by Prussia. Belgium-Luxembourg Economic Union is represented by Belgium EU originally had no legal personality, so acted through one of its communities, or through agreements by the collective MS. It eventually gained legal personality. o BUT it became apparent that IOs required legal personality, which was easier to achieve under the domestic legal order. Lack of an centralised international legislative authority meant this took longer under IL. Until 1990, personality was usually implied. After 1990, IOs began to be granted legal personality under their constitutions. Eg. ICC Statute Art 4: international legal personality; such legal capacity as may be necessary o UNC Art 104: The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes legal personality at national, domestic level, not on the international level. This is necessary to conclude private law contracts w/in the MS. Not controversial at all No provision on international legal personality in UNC: drafters were anxious that it wasnt seen as a superstate (UNCIO, Report of the US delegation) See below: Reparations for Injuries o 3 traditional schools of thought:

(1) IOs only had personality if granted explicitly in constitution- very little support, which mostly came from socialist scholars; (2) Only had personality if the IO had at least one organ which had a will distinct from the subjective will of the member states, i.e. personality is objective (Syersted); (3) The implied powers school- prevailing view today enshrined in the Reparations for Injuries Advisory Opinion. This is a derivative form of legal personality, like the personality companies have under domestic law (cf. (2), which provides for original personality) Closed IOs: In relation to non-MS, legal personality will only apply where it has been recognised (by conclusion of mutual agreements, by exchange of diplomatic missions etc.) o Discussion has recently revived in relation to the OSCE and the EU. There has been no agreement on personality for the OSCE. The US is basically opposed to the OSCE becoming a more traditional IO rather than a flexible framework for cooperation (argument that it will be less flexible is not correct). Russian Federation wants it to be very formal in order for it to be easier to control. (Started as a Conference in 1975 and developed in practice into an IO in 1994, although it was still decided not to give it personality). Rounds of negotiations on this in 2000-1. They were unsuccessful. In 2007, agreement on a Convention at a technical, expert level, but this was not adopted. OSCE members are called participating states. This means that staff members do not have necessary legal protection in countries that have not unilaterally granted privileges and immunities. The OSCE has no capacity to issue claims against states and experienced difficulty in working with other IOs in the former Yugoslavia. PS could not adopt seat agreements and had to create ad hoc national laws. National law normally adopted to give privileges and immunities (eg. in the Netherlands) etc. Problem with this: could be repealed

EU: EU created under Maastricht in 1992. Clearly no legal personality according to Blair: prevented it from being stated in ToA. Became a party to a treaty in its own name for the first time in 2001 (agreement between EU and Yugoslavia concerning activities of the EU Monitoring Mission in Yugoslavia). Had never been granted in treaties. Accepted in practice. The EU has now been explicitly granted legal personality under Lisbon. Art 47 TEU: The Union shall have legal personality: clear from context it concerns international legal personality. BUT, Declaration 24 annexed to Final Act of the Lisbon Conference: The Conference confirms that the fact that the EU has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the MS in the Treaties o International legal personality rights and duties under IL. It just means that the IO is capable of having such (capacity). The rights and duties are determined by the constituent instrument. o Unclear whether international legal personality is divisible or not. In other words, do organs of IOs have separate legal personality from the IO? EC organs do not have separate legal personality: Algera (1957) ECJ UNDP was severely criticized for in 1991 establishing an IO itself in conjunction with another state by the UN Office of Legal Affairs. HOWEVER, many subsidiary organs of the UN enter into agreements in their own names. The answer is unclear, per ILC Special Rapporteur Reuter in 1982. The ILC concluded that when an IO binds itself through a treaty, it binds all of its organs/the entire IO and vice versa, unless there is clear intention to the contrary Only separate legal personality where specifically expressed. Application of IL o Many IL rules will not be applicable to IOs, as they do not have territory, cannot confer nationality and do not exercise jurisdiction in the same way as states.

o Arguments in favour of subordination to IL being greater than it is for states: (1) Successor states are bound by obligations of its predecessor. By analogy, IOs formed by states can be bound by the will of their MS (2) IOs are established under IL. Their own legal order cannot therefore be superior to it. States on the other hand, have been traditional centres of legal power (3) IOs cannot participate in IL-creation, so abstention from becoming a party to a treaty cannot be interpreted as a desire not to be bound. WHO/Egypt Advisory Opinion (1980): IOs are subjects of IL and, as such, are bound by any obligations incumbent upon them under general rules of IL. o BUT, need to develop these rules as IOs become more similar to states and more developed. VCLT II, although not yet in force, is interesting in this respect. Also, IOs may have to sign up to it in order for it to apply to them. Under this, IOs must consent to being bound by a treaty. o General Principles IOs are bound in the same way that MS are bound. May differ from region to region for regional IOs. See above, WHO/Egypt advisory opinion EU: applies general principles (by virtue of the treaty) such as estoppel, human rights and non bis in idem (double jeopardy) o Treaties IOs are bound where they are parties Some treaties do not allow IOs to become parties May also be bound where a treaty is a general law making treaty, such as the Geneva Conventions. In such cases, IOs are bound by the general principles and not the treaty itself; the treaty just codifies such principles. The number of states who participated in drafting and whether the text has been (almost) unanimously adopted are also relevant. The number of ratifications is also relevant [ME: this seems to be fairly muddled; basically trying to say they are bound by custom (think North Sea Continental Shelf)]

 o CIL

See 1577 for UN practice re humanitarian law

Bound in the same way as states. As with states, not clear whether this is internally binding or externally binding (ie. monist and dualist attitudes) o Decisions of other IOs In theory, yes. For example, Benelux should be bound by EU decision Can also form customary international institutional law, eg. the rules of procedure of the UNGA are followed by many other IOs. This is not binding per se May be binding where the constituent instrument of the second IO so provides: eg. decisions of ECJ binding on Benelux where the dispute concerns the Benelux treaty and the EC Treaty Responsibility and Liability under IL o In 2001, drafting commenced on ILC Articles on Responsibility of IOs for internationally wrongful acts likely to be similar to the State Responsibility articles o Responsibility = breach of international law o Liability = acts which cause damage w/o being necessarily unlawful o Remember to distinguish responsibility/liability under domestic law and IL o Immunity does not mean there is no liability, just that there is an obstacle to enforcing it. o IOs are responsible for violations of obligations and liable for their debts. This raises some issues: o (1) Are all MS simultaneously liable? Not u/l the constitution so provides o (2) If an IO has insufficient funds, are MS required to pay? Generally, yes. MS are not obliged to pay creditors directly, but must put the organisation in funds (see for eg. Higgins) o (3) If an IO defaults on payment of its liabilities, can recourse be had to MS? Higgins has argued that if this is the case, independent personality would be a sham and MS would be likely to intervene in almost all decision-making If not, creditors will lose out and may not deal with IOs

Scholars are divided on this issue (see 1588 for examples in practice) International Tin Council collapse Under the Tin Agreement, there was a buffer stock manager who had to purchase tin in the event of falling prices to stabilise the market. On 24th October the manager suspended his activities, owing 900m to various banks and tin brokers. Creditors obtained arbitral awards, but the IO was insolvent. Most of the claims issued were dismissed. Some judges considered there to be concurrent/secondary liability. Some did not. Issue of NATO military actions against Yugoslavia. In cases before the ICJ and ECHR, NATO could not be the defendant (not a member), and the courts dismissed the actions this is a legal vacuum so a number of constitutions expressly exclude liability for members, eg. the International Cocoa Agreement, IFC and regional development banks

Status in National Law Personality o Personality in the law of member states Constitutional Provisions If expressly provided for, or if it is provided that the IO will enjoy the legal personality necessary to exercise its functions or that it will have capacity to contract, etc. Provisions in national law UK: International Organisations Act 1968 s1: where an IO is designated by an Order in Council, it may be given domestic legal personality of a body corporate US has similar legislation expressly allowing for the grant domestic legal personality to IOs of which the state is a member or grant the capacity to contract, to acquire and dispose of property and to institute legal proceedings;

Others (Canada) grant legal status only to the UN or to particular organisations (Guyana- only to CARICOM). In the absence of express provisions The separate legal personalities of IOs in which their own states participate have generally been accepted by national courts. o Personality in the law of non-member states Two possibilities: Either the personality is accepted outright by the nonmember; or Even if not, private international law accepts legal personality acquired abroad, once acquired legally. Application of domestic law o Competence to make use of national laws IOs with capacity domestically have the capacity to perform all acts which legal persons normally perform- entering into contracts, appearing in court, buying and selling, etc. The competence to do so comes from the internal law of the organisation. o The law to be applied: 1601-4 Legal order of the host state as a secondary source of lawcontractual obligations etc. based on general principles of law. o Why are privileges and immunities necessary for an IO and for staff? Distinguish from immunities and privileges of people working for states States need immunities because of sovereign sovereignty and equality. Court of one state should not take jurisdiction over acts of another state Functional: IOs belong to all members and to none Dont want 1 national court to determine outcome Labour disputes Civil servants may bring a case before a national court.

National court may not be aware of the issue of immunity. IO may not go to court, because they see it as unnecessary. Now, courts usually accept immunity, as long as there is some form of redress w/in the IO involved (administrative tribunals) Srebrenica Cases Case brought by widows of men killed in Srebrenica. Cases against the Netherlands and against the UN. Case is still pending, on appeal. In the district court, immunity of the UN was recognised Catch 22: cant bring against the UN. Cant bring against MS, because they were acting under UNSCRs Rules found in: Constituent instrument (eg. Art 105 UNC) Multilateral agreement (eg. 1946 and 1947 Conventions) HQA: only document in which the IO is a party o Limits imposed by privileges Tax and customs exemptions for IOs, also their premises cannot be searched, etc. o Limits imposed by immunity from jurisdiction UN Office of Legal Affairs has stated that immunity exists as a matter of law and does not even need to be expressly relied upon by an IO. However, the Italian Court of Cassation did reject such immunity in 1992 (much- criticized) based on a distinction between acts committed in sovereign authority and acts committed as a private person. Higgins has argued that this is not justifiable, because it assimilates IOs and states Even if rejected by national courts, cannot enforce judgments European Communities do not enjoy general immunity from jurisdiction- expressly stated in EC Art. 240 Immunity does not free the organisation from obligations, just prevents adjudication in court. It may even be the case that immunity is a rule of customary international law: see 1611 and fn 182 Reasons why IOs should enjoy immunity, per McKinnon Wood:

(1) National courts may be influenced by their particular legal traditions (2) IOs need to be protected against baseless actions instigated by cranks etc BUT, needs to be reconsidered sometimes, such as the case of UNMIK and KFORs immunity in Kosovo, despite causing damage to lots of property The injurious effects of immunity are mitigated in two ways: Immunity can be waived; or Disputes can be settled by arbitral tribunals or nonnational courts. o Liability under private law Cannot be enforced, but the ECJ does provide compensation for individuals injured by breach of non-contractual obligation: Contractual governed by law applicable to the contract in question. Duration Establishment o Preparatory conferences are necessary to draft the constitution and prepare the agenda for the first meeting of the IO etc o May be done by a PrepCom or by particular MS Dissolution o Termination or Succession Generally two reasons for an IO to be dissolved its task is complete or outdated (termination); or another IO has taken over its functions and ancillary rights and obligations (succession). This may be split into the following (Myers) 1627: Replacement Absorption Merger Separation Transfer of specific functions o Methods Constitutional Provisions

E.g. it might be provided for if the Congress votes to dissolve it at any stage, or the members fall below a certain number 1629 for examples Provisions in other treaties and implied succession One treaty between all the members on the transfer of functions etc. to another organisation might impliedly annul the first IO. 1633-6 for examples Acts of the general congress 1637 for examples Agreements with other international organisations Best known example: The League of Nations entering into a Common Plan with the UN concerning the transfer of activities and property. Disuse The Yearbook of International Organisations registers some organisations as inactive- they can just disappear through disuse. Constitutional Amendment Inserting a provision for dissolution Changed circumstances Article 62, VCLT: clausula rebus sic stantibus (fundamental change in circumstances) E.g. the Danube Commission- USSR claimed that Communism was a fundamental change in circumstances- rejected. Conclusion The only other possibility than those above would be if all members withdrew their membership. o Consequences Functions of the IO

They will be distributed to a successor organisation or divided amongst several organisations. There can be consequences, such as the problems raised by the UN taking over the mandate system from the League with its different voting system, but these consequences are often unavoidable (ICJ held that the mandates were not terminated by the transfer) Legal acts of the organisation Re: ICJ- Israel/Bulgaria: acceptance of PCIJ jurisdiction not enough to give the ICJ jurisdiction; but Temple case allowed this where such acceptance (of PCIJ jurisdiction) was reaffirmed in 1950. Held to be an affirmation of ICJ jurisdiction Recommendations and Declarations States are free to follow them even if the organisation no longer exists. Conventions In principle, should remain binding, but sometimes the dissolved organisation was the depositary (UNCLOS), or played an active role in the application of the convention. If the new organisation is much the same, no need for all parties to reaffirm conventions under the new IO, but if theyre significantly different, the role of the organisation becomes relevant. If acting just as a secretariat, no effect on parties obligations, which remain unchanged. If the organisation plays an active role in the application of a convention, a new and different organisation cannot replace it without the approval of the parties. Internal rules Remain in force when completely taken over, no need for them to remain in force when not taken over. General regulations

General regulations= those regulations integrated into the domestic legal order of each state. Ought not to change upon dissolution of the organisation from which they are derived, but this has never happened. (The Danube Commission is not an example as the regulations became ineffective before the official disappearance of the Commission) Binding decisions Usually transposed into practice or domestic law OR transposed into the legal order of another IO- either way, they remain binding. Agreements Agreements concerning the functioning of the organisation will perish; those relating to external relations (e.g. Community Trade Agreements) would either vest in a successor organisation or successor states, insofar as is possible. Contracts E.g. employment contracts, cleaning contractswill usually perish. Sometimes they will vest in successor IO. Personnel of the organisation Will lose their jobs- there is no obligation on successor organisation to take them on. Redundancy may be paid out of a fund established on the dissolution of the organisation. Property of the organisation Could be distributed among the members according to contributions, or disposed as the organisation pleases, given its separate legal personality- practice is inconsistent. o Conclusion Responsibility of IOs ILC and SR Gaja: Have a set of Draft Arts

o Will follow the arts for states u/l reason to do otherwise Is this a fad or a response to a real need? Explanations for beginning this work: o IOs have used their powers more extensively since the mid 1980s: The Tin Council was very active. Rwanda: any UN responsibility for not intervening? Srebrenica: Serbs? UN? MS? o An emerging general climate of accountability ICC creation highlights this UN Peacekeepers o A natural opportunity came when the ILC completed its draft articles on state responsibility

Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174 TAGLINE: the implied powers approach to ascription of legal personality FACTS: Count Bernadotte, as an agent (mediator) of the UN, was injured in Israel. The question was whether the UN, as an IO, had capacity to bring an international claim on his behalf. If so, how was that to be reconciled with the rights of the state of which the victim is a national. HELD: The question of legal personality is not settled by the terms of the UNC Therefore, it is necessary to consider what characteristics were intended to be given to the IO (178) subjects of law in any legal system are not necessarily identical in their nature or in the extent of their legal rights, and their nature depends on the needs of the community. o Increase in collective activity of states has already led to action on the international plane by entities which are not states. o To achieve these ends [principles and purposes of the UN] the attribution of international personality is indispensable. (178) [Something about organs] ICJ looks at law and practice:

the Organisation was intended to exercise and enjoy, and is in facts exercising and enjoying , functions and rights [members have to accept and carry out UNSCRs; privileges and immunities; conclusion of agreements between the UN and MS] which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate it on the international plane (179) That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. (179) Whereas a state possesses the totality of international rights and duties recognized by IL, the rights and duties of an entity such as the Organisation must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. (180) The UN did have the capacity to bring international claims o Definitely for damage to the UN itself only way for IO to gain reparation (180) o Re damage to agent: Necessary to use agents (183). For the effective working of the UN, undertakings to render every assistance to the UN in Art 2(5) UNC must be strictly observed. For that purpose, it is necessary that the UN should be able to call on the responsible MS to remedy its default. Agent should not have to rely on protection of anyone other than the UN in order to be independent etc. (183) and protection should not vary dependent on the power of the state of his/her nationality (184) What about the situation where the respondent state is not a MS? o 50 states, representing the vast majority of the members of the international community had the power, in conformity with IL, to bring into being an entity possessing objective international personality, and not merely a personality recognised by them alone (185) How to reconcile this with the rights of the state of which the agent is a member? o There is no rule of law which assigns priority to one or the other or compels either one to refrain from bringing an international claim (185)
o

o The parties should find solutions inspired by goodwill and common sense (186). ICJ also pointed again to the duty to render every assistance in Art 2(5) UNC o Defendant cannot be compelled to pay the reparation due twice over Note that it is no obstacle to the UN bringing a claim that the agent possesses the nationality of the defendant state (186) COMMENT: In traveaux, very clear decision not to attribute legal personality Reference to UNC (law) and practice of the UN Problem/danger of circularity: ICJ looks at practice and uses this to say that the UN must therefore be a legal person Approach to political issue: not the same thing as saying it is a state

Privileges and Immunities

Essence: ICJ in WHO Egypt Advisory Opinion (1980) o clear [mutual] obligation to so-operate in good faith to promote the objectives and purposes of the Organisation as expressed in its Constitution. [49] Relationship exercises through secretariat/chief officer of IO and FCO/ MoJ /MoFinance /police. Important aspects of relationship are: o Consultation, co-operation, negotiation Basic Principle: Functional necessity: o Independence o Continuity o Efficiency o General principle of international institutional law Art 105(1) UNC: the organisation shall enjoy such privileges and immunities as may be necessary for the fulfilment of its purposes Characteristics of the relationship: Host state usually also a MS (although Switzerland is the HS for IOs of which it is not a member) Inequality between the subjects IO is functionally dependent on the HS o With diplomatic embassies: principle of reciprocity: other state could do the same thing back to the receiving states embassy in their own country. In case of commission of crimes by a diplomat, can send the diplomat back w/o prosecuting: declare them persona non grata Cant do this for IO staff Limitation of state sovereignty when IO is on territory o Still sovereign territory of the HS (same applies for embassies) o Laws apply etc BUT immunities / inviolability limit sovereignty need consent to exercise sovereignty Applicable Legal Instruments: Constitutional Document: Art 104/5 UNC; Art 48 Rome Statute etc

Multilateral treaty on P&I: UN Treaties 46 and 47; ICC Agreement; NATO etc Seat agreement and other bilaterals (re status of interns for example) Unilateral instruments: ICC Implementation Act; diplomatic notes etc o Especially where there is no international legal personality o High Commission on National Minorities (part of OSCE) unclear legal status. Ned enacted a national law as basis for the relationship. This can easily be unilaterally revoked by parliament. Diplomatic privileges and immunities often incorporated into this framework, mainly for historic reasons (it had been very effective because of the principle of reciprocity). But, the diplomatic system cannot just be transposed, because of the basis of the P&I as functional necessity. For embassies, legal framework is VC on Diplomatic Relations and VC on Consular Relations. They are relevant to IOs in terms of interpretation and perhaps application, but are not the formal legal basis for the relationships in general. Diplomatic relations have more clarity and consistency. For IOs, the legal framework tends to be individually negotiated/developed and so there is less consistency. ICJ in WHO-Egypt Advisory Opinion: [the court] feels bound to observe that in the future closer attention may be given to their drafting [46] o Problem is that seat agreements sometimes have to be concluded very quickly (eg. Special Court for Sierra Leone re. Charles Taylor: done in 1 month vs. ICC took 2 years)

Summary: P&I of IOs: o Functional necessity (so it will vary, because of different purposes of IOs) o Multiple different sources: three level Foundations of diplomatic P&I o Par in parem non habet imperium (No-one has power over ones equal) Sovereign equality of states; dignity Protection of embassy and staff 2 sources: VCDR 1961 and VCCR 1963 Inviolability Extent of premises; functional delimitation

More important somewhere like NY, where many IOs have premise in high-rise buildings stairs, lifts etc generally not included No access except o Permission Officer who can give consent is often specified in the seat agreement, BUT co-op and good faith are essential o Emergency situations Different for embassies: VCDR: no provision for entry in emergency situations need explicit consent o Protection of national security/public order Very controversial Some seat agreements explicitly provide that right to protect national security is not interfered with Is a duty to protect inherent in inviolability? o Here, protection had to be offered, but some seat agreements dont have such a provision. o Reactive protection is required o Preventative protection is not
o

ICTA: Violation because of failure to protect against trespassers o Are premises inviolable (+) Art 3 o Are gardens of ICTA part of the premises of ICTA (+) Art 1(f) o Is host state obliged to protect vs trespassing (+) Art 5 o May an IO request all measures it considers necessary? (+) Yes, but no need to comply o Did Ned take all reasonable measures/did they exercise due diligence with regard to protection? (+) Threat analysis Tehran Hostages Case of ICJ (1980) at [68]: Although, re. embassy and receiving state and very clear example of lack of fulfilment f obligations Iranian authorities were aware of their obligations Iranian authorities were aware of the urgent need for action Had the means at their disposal Completely failed to comply with these obligations Need to act to end it

Need to prosecute

Camera surveillance Police officers spotted action soon Police officers arrested culprits Security threat analysis If good faith and co-operation, no violation Could also say that the IO didnt have security personnel and there is a limit to what the HS can do w/o consent No damage to building, just to lawns effective functioning not in jeopardy took place at night, over weekend Violation because of entry of fire engines and use of excessive water o No exception in Convention

Interpretation
General Points Why is dispute settlement/interpretation different for IOs? o National courts cant/dont really supervise IOs o IOs dont have access to the ICJ in contentious proceedings (probably because: (1) states didnt want to elevate IOs to the same level as states would have review of UNSCRs etc have this in EU, but not the UN): Advisory opinions: Art 96 ICJ Statute UNSC can request (96(1)) UNGA can request (96(1)) UNGA can authorise (96(2)): other organs (eg. ECOSOC) or specialised agencies where it falls w/in their function (eg. WHO) Malanczuk: the whole history of the UN has been a series of disputes about the correct interpretation of the Charter o Dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons Mavromatis Case Interpretation of IL is decentralised in the same way that international law making is decentralised States have the primary competence to interpret IL = right of autointerpretation danger that divergent interpretations of IL will detract from the unifying purpose of IL rules. o BUT, the legal orders of IOs provide some sort of context/framework within which it is easier to give meaning to a rule, especially where they contain dispute resolution provisions or provisions to obtain authoritative interpretations. o The different methods of interpretation provide either more or less flexibility (teleological interpretation/functional interpretation) or respect for state sovereignty (use of travaux preparatoires and textual interpretation) Preliminary reference procedures show attempts to respect sovereignty and ensure uniformity of interpretation. Means of Interpretation

(1) Textual interpretation: text as an authentic expression of the intention of the law maker: ICJ in Second Admission case (1950): If the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter o Context = see VCLT (2) Intention of the law maker as a subjective element independent of the text o Supplementary means of interpretation: Art 32 VCLT o ICJ in Ambatielos (1952) but no need when treaty sufficiently clear in itself (Lotus) o Some IOs prevent the use of travaux by keeping all relevant documents confidential (eg. some EC and some ECHR documents) o Some members may not have been in the IO at the drafting stage. (3) Teleological/functional interpretation: declared or apparent objects and purposes of the legal rule concerned. In IOs, subsequent practice of the IO is particularly important: o VCLT, 1986: Article 2(1)(j): rules of the organization means, in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization o Legality of the Use of Nuclear Weapons - WHO Advisory Opinion (1996): treaties of IOs can raise problems owing to their character which is conventional and at the same time institutional nature of the IO, its objectives (imperatives relating to its effective performance) and its practice will all therefore be relevant to interpretation.

Art 31(3)(b) VCLT 69: any subsequent practice in the

application of the treaty which establishes the agreement of the parties regarding its interpretation. Practice of the IO which is relevant per Blokker, although ICJ didnt discuss this. What is unique is the ICJs holding that a treaty should be interpreted in a particular way because of its constitutional nature. o Further, many IOs use several authentic languages, so interpretation may be hampered by different parties interpretations in specific languages. In the EC, all languages must be taken into account ICAO: Originally written in English, but then French, Spanish and Russian were added. English text is authentic for all members. The others are equally authentic for members who have ratified the protocols or who became members after the protocols came into force Teleological interpretation o Most flexible o ICJ and ECJ have both used this o Cant specify what happens in every situation, so there is of necessity a certain vagueness: law is general and abstract. Further, it is almost impossible to get agreement on very specific wording. Possibility of varying interpretations is what enables it to be agreed upon in the first place. Prevent completely divergent interpretations by supervision and the possibility of dispute settlement after autointerpretation by the state o Effectiveness in EU law: think about direct effect of directives o Judge Weeramantry in WHO Advisory Opinion: teleological interpretation is particularly important when an IO has certain sociological or humanitarian goals. o Danger: dont respect state sovereignty; competence creep

Authorities Charged with Interpretation (1) Members: auto-interpretation can lead to divergent interpretations o National Executives

Rules which are not directed to organs of IOs will be directed to their Member States- Minister of Foreign Affairs will usually be deemed competent to interpret. However, this was abandoned (such abandonment being approved by the ECtHR) as it meant that the Conseil dEtat did not act independently and in accordance with Art 6(1) ECHR when it considered itself bound by the Ministers interpretation. o National courts Interpretation of either the international rules laid down by the organisation itself, or the national legislation implementing those rules. ECJ: MS can suspend enforcement of EC measures if they have serious doubts. Must refer this to the ECJ though 201: Milosevic questioned the legality of ICTY detention before Dutch courts. Dutch court said that the ICTYs establishment was legal review Problem: questions concerning the legality of decisions of IOs. Should an analogy to the act of state doctrine be used? No: IOs dont always have effective judiciaries provides for a degree of judicial control, entirely absent re: most IOs. When their own state is a member, its not such a foreign act.

Yes:

However, all other reasons for applying the Act of State Doctrine apply, and, according to Blokker, national courts should not make such decisions in absence of compelling reasons. Legal adviser to the IMF published a number of articles concerning the application of IMF law in national courts. Seems to have been successful often referred to. Parliamentary Assembly of the Council of Europe has suggested something similar. (2) Organs of the IO o Policy-making Organs

Some IOs charge their policy-making organs with interpretation and settlement of disputes on questions concerning rules of their legal order (eg. WTO Art 9(2)) Others do so without express authorisation of their constitutions. Executive organs decide: IMF, World Bank, Inter-American World Bank, Asian Development Bank, Caribbean World Bank General Congress interprets: WHO, IMO, Benelux, FAO Often possibility of appeal to a judicial body Sometimes (as in the UN GA) the legal department of the Secretariat will be charged with providing interpretations when requested. Legal value of these not clear. GA may take note of the report of the UNSG not binding Why are policy-making organs more suitable than courts to give interpretations and settle disputes? (1) They can compromise; (2) They can make further legislation to solve any problems; (3) They can undertake mutual consultation with all parties in a less formal environment; (4) Many IOs (such as the OAU, commodity councils and financial agencies) are not willing to remit such decisions to bodies o/s the IO, as may have less expertise, or because they cannot apply a weighted voting system (as in the World Bank and IMF) o Judicial Maybe better for conflicts between IO and its members policy-making organ not impartial enough Many IOs have their own judicial organ (ICSID, ITLOS, IMF, ILO); others use the ICJ or refer the dispute to arbitration. (1) Judgments Useful where laws of IO are directly applicable (2) Advisory Opinions

Important re: IOs, because IOs cannot initiate contentious proceedings themselves. Furthermore, the ICJ has been restrictive in allowing states to raise issues re: the law of IOs. E.g. in the South West Africa case (1966): not allowed raise questions on the application of the law of the League of Nations before the Court, but not vice-versa: Advisory Opinion on a dispute between 2 states (Spain and Morocco) was brought by the Security Council in the Western Sahara advisory opinion. Not binding, just persuasive ECtHR and I-ACtHR have power to give advisory opinions ECJ can give advisory opinions in relation to 3rd states/IOs (3) Preliminary Rulings EC Treaty, Art 267 TFEU (ex Art 234, ex ex Art 177) Re interpretation of the treaties Re the validity and interpretation of acts of institution, bodies ECJ has jurisdiction to give preliminary rulings on interpretation: it did so in Costa v ENEL and Van Gend en Loos. Benelux Court of Justice and the Andean Court of Justice also have this possibility

Competence to Request Interpretation Organs of the IO Members of the IO Private Persons National Courts

External Relations
Comparison with States International Legal Personality IOs almost always have ILP (explicit or implied Reparations for Injuries) Characteristics of IO: o Creation by international agreement (treaty) o Membership of states and/or IOs (creators) o AL governed by IL o Independence distinct will, separate from its members (ie through independent organs) most important for external relations Partners for External Relations Relations with states: 1687 - 1690 o Non MS: Most IOs maintain relations only with their own members. Main exception = EC Most of the time, non-members can become members (or partial/ associate members) depending on rules of the IO. Sometimes this isnt possible, non-members become observers etc. Practical significance of this varies. E.g. German Federal Republic couldnt become a UN member for political reasons until 1973 more significant than Monacos non- membership prior to 1993 because it is was deemed too small for membership. o ***Members***: Relations with members can be: internal (MS form part of the organisation); or external (MS may also be counterparts of the IO). not so important in practice, but important in theory in terms if the applicable law. Internal relationship governed by internal law of the IO. External relations governed by a whole host of things (HQA, multilateral treaties as well as the constituent treaty) MS can designate their point of contact with the IO. In the case of the UN its usually the foreign ministry. o Host States:

Generally the IO has special relations with the city in which the HQ is based regarding practical matters, most official business is conducted through the foreign ministry of the host state. An exception was Giuliani addressing the UN General Assembly in the wake of 9/11. Most of the time, an HQ agreement lays down the rules governing this relationship see LPIO Paper III. In the absence of such an agreement IO is obliged to respect laws of host state, whilst host state must facilitate inviolability of the IOs buildings and archives, and grant it immunity from legal process, taxation etc. See Fn 9 in Blokker. It seems beyond doubt that a host state has to admit representatives of members wishing to attend meetings and to grant them certain privileges and immunities. However, those irksome Middle Eastern states have in the past denied admission to delegates from Israel. This has in the past impeded work of IOs in the region.

This obligation stems directly from the obligation to grant the organisation hospitality. The obligation to grant hospitality to observers is less closely linked. In these cases you usually require express agreements between the IO and host state as a legal basis for admission. Example 1: In 1988, US wouldnt let Arafat in to address the GA, on basis of national security. The US was criticised for its violation of the HQ agreement, the meeting was reconvened in Geneva. Example 2: Conflicting obligations of the Netherlands some FRY nationals (e.g. Mirjana Markovic, wife of Milosovic) were on an EU black list of people who could not be issued visas by EU States. She now resides in a detention unit in The Hague. The obligations under the HQ agreement were allowed to prevail over those obligations under EU law. Relations with other IOs: 1691 - 1700 o Any basic principles that can be derived for external relations: Different for every IO, so no real basic principles. Politics is what is important, ie. how it is dealt with in practice Independence of the IO is the only real basic principle. Relationship between UN and specialised agencies (separate IOs) governed by agreements NB. ICC is a separate IO, but in Rome Statute, some specific references to relationship with the UN. Agreement in 2004 between UN and ICC re cooperation. Maybe IOs have an obligation to cooperate. UN and ICC deal with overlapping areas, but agreement regulates how they do this ICC Prosecutor is not subordinate to the UNSC, but does report to it 2/3 times a year re Darfur. This situation would be where you would start for principles o Families of IOs:

Defined as when mutual relations are stronger than occasional exchange of membership, partly overlapping membership, agreement to send observers etc. Tasks are divided up and each IO plays a role in the larger unit formed by the family. Must be some institutional links. o ***The UN family***: Operates on the basis of functional decentralisation, i.e. the interrelated system of specialized agencies: see WHO Advisory Opinion (1996) for principles in UN family Arts 57 and 63 UNC: specialised agencies are separate IOs and brought into the UN family by agreements See p.1078 in Blokker for list of specialized agencies. ***Several reasons for keeping the UN itself and the specialized agencies separate***: Important for success of technical achievements of the UN. In 1945, not clear that the UN would be a success, so kept them separate in case of the UN failing. Meant that technical work could be kept separate from political work aims to prevent deadlock. Could not keep politics out completely eg World Bank still gave development aid to SA in the mid-1970s despite UNGA having requested IOs not to. WB argued that SA had fulfilled all the relevant criteria for receiving loans. UNGA has no means to ensure that the specialised agencies follow its recommendations. Finally resolved by WB deciding to stop giving aid, but only after a long time.

eg WHO Agreement with UN: allowed to

request AO from the ICJ. Requested AO re nuclear weapons (they argued it was w/in their competence). In 1996, ICJ said no to WHO, but yes to UNGAs request for the same thing on the same day principle w/in UN family at least of speciality or attribution: WHO may be able to deal with the effects of nuclear weapons etc, but WHO is competent to do that whether or not their use is legal or illegal. Lies w/in the competence of the UN and lies o/s that of the specialised agencies functional delimitation of competences w/in UN family. Need to look at the UN system as a whole. o Doesnt necessarily apply more widely, because not always agreements to base it on. o Dissenting Judge: shouldnt be restrictive in relation to abilities of IOs Not all UN members would want to take part in all technical areas. By separating the organisations, memebership can be allocated accordingly. Technical cooperation is usually directed as govt departments. Promotes expert knowledge. The national experts should be the people ultimately responsible for these activities. There has been criticism of this system e.g. Jackson report says that in field of development assistance one unified organisation might be stronger and more effective. Keeping political discussions outside the work of the specialized agancies is easier said than done. Regardless, now it would be difficult to merge agencies owing to their separate development

In 1973 ECOSOC reviewed the agreements between specialized agencies and the UN with a view to strengthening coherence of the system. A report was prepared, but none of the agreements have been amended. ICJ: Functional decentralization was one of the reasons that the WHO was not competent to request an advisory opinion of the court re legality of use of nuclear weapons, ie. the WHOs responsibilities were restricted to public health and cannot encroach on other areas of the UN system. Questions over the use of force, the regulation of armament and disarmament fall within the competence of the UN and outside that of the specialized agencies. NB: Tension between desire for centralization in regard of development assistance / desire for decentralization within administration of organizations. Eg. WIPO (founded 1967) were worried about becoming a specialised agency it would mean that developing countries would all become members and would weaken the international protection of intellectual property. Ultimately, advantages of being a specialized agency were deemed more important. Threefold: (1) WIPOs objectives would receive worldwide recognition. (2) Many developing countries were expected to join WIPO, only a few participated in predecessor. (3) No need to deal with admin stuff e.g. fixing of salaries / pensions because that would follow the centralized UN system. NB: There are also minors in the UN family, which are organs formally, yet operate as separate bodies. These are classified as Independent organs due to fears that those who opposed them being independent IOs would refuse to ratify treaties etc. e.g. UNICEF, UNHCR

Agreements between UN and specialised agencies are generally similar: They submit to decision-making organs all recommendations which the GA or SC address to them. In the case of SC decisions which concern the maintenance of int. peace and security, they agree to render such assistance as the SC might request. Also, agree to coordination of activities to prevent duplication of administrative and technical services, and approve full and prompt exchange of documents. Generally authorise spec agencies to request adv ops from the ICJ. (Excluding questions relating to the relationship between the UN and the spec agency). Surprisingly, the WHO Nuclear Weapons Adv Op case ICJ considered relationship between the two bodies within the UN system of functional decentralization. See p.1080 for a synopsis of this aspect of the case. Also, there are several agreements between specialized agencies and other specialized agencies, eg. IMF with World Bank or WTO. o The European Union: Forms an integrated union of IOs, initially not founded (as UN) by mutual agreements, but by the three communities with the same members and common organs. (ECSC, EC, Euratom) EP and ECJ have been there since the beginning, Council and Commission were made into organs by the Merger Treaty of 1965. 1992 EU Treaty added second two pillars of community. Although 3 pillars form part of larger community, the EC and Euratom continue to exist as independent IOs. Therefore, the EU can still be considered a family of IOs. The proposed EU Treaty would repeal the earlier treaties and change this structure.

Other families include Inter-American Organisations such as the OAS Charter, the Latin American Economic System (SELA, est. 1975), former Eastern Blocs Council for Mutual Economic Assistance (CMEA), and a handful of other smaller examples. Coordination of relations between IOs: o Lecture: Priority of UN: Art 103 UNC Delimitation of competences (but UN is primus inter pares how to enforce) Common organs: EU organs; WFP; UN Chief Executive Board (CEB DGs of specialised agencies at secretariat level common organ for UN family) etc ILO Administrative Tribunal not created jointly, but used by many other IOs, including the UN family Joint Sessions, exchange of observers, reporting, exchanging of plans and policies etc o The need for coordination of the external relations of IOs stems primarily from the overlap of IOs working in different regions, of overlaps inherent in the functions of certain IOs. o Forms of Coordination IOs operate in a similar manner to national governments, but have no centralized authority to allocate tasks and settle matters of competence. The UN has functional decentralization Art 58 of UN Charter: The organization shall make recommendations for the coordination of the policies and activities of the specialized agencies. Negative coordination: coordination for the sake of preventing duplication of work tries to limit the work of one or more IOs. Easy to arrange. Positive coordination: harmonization of policies of IOs within their respective spheres to enhance overall efficacy, maximum results in NBs words.
o

Difficulties may arise in positive coordination efforts because a concert needs a conductor it may be difficult to designate primary responsibility to one IO over another in this kind of situation. Financial coordination is also tricky (Q2) Activities of IOs are controlled by their budgets Within the UN family though, budget cycles are synchronized and comparable presentations are strived for in programme budgeting national coordination is therefore vital when comparing cost of the various activities o Coordination at an International Level: 1706 - 1741 Priority for the acts of one IO Eg. UN Charter gives priority to obligations under charter over obligations arising from anything else. Art 103. (NB Art 107 Exception). The constitutions of several regional organizations provide for some degree of primacy of acts of the organization over acts of other organizations in the same region. Art 47 EU Treaty: nothing in this treaty shall affect the Treaties establishing the European Communities This type of priority is effective when all members of the inferior organization are also members of the superior org. Otherwise, there may be objections for obvious reasons. Easiest way to settle it is through the treaty of the inferior organization. Also, this primacy may stem from agreements between IOs. E.g. the specialized agencies cooperating in carrying out the decisions of the security council. Delimitation of Competences Coordination is facilitated by clear delimitation of competences. In UN family, political questions brought before UN, not before Specialised Agencies.

Best to delimit competences when the IO is started, difficult to change. In practice, difficult to delimit competences clearly: E.g. World Bank in 1965 was going to stop giving any financial assistance to Portugal or South Africa, due to colonial / racist policies. World Bank president said that it was political, therefore outside competence, which was the UNs. General Assembly Resolution World Bank should withdraw loans. Agreement between UN and WB no basis for the latter to follow the UN resolutions. However, it is permitted to do so should it wish. But, its been said that the general principles underlying the functionally decentralized structure of the UN can give rise to a general obligation to bring the WBs policy in line with that of the UN. Similar problem re SA & IMF/UNGA and Portugal & ICAO/UNGA: 1714 Common Organs No doubt that functioning through the same institutions guarantees the most effective coordination of activities E.g. 3 European Communities share the same parliamentary and judicial organs. Note weakness of UN in this respect no central institutions. Suggested in 1975, GA considered it in 1977 and endorsed it, but then changed mind in 1979 see p. 1094 for references. N.B. coordination in specific fields can be achieved by creating common organs in which all organizations are represented. E.g. World Food Programme Created by UN and FAO both organizations were operational in it. Part of the Executive Board. Some orgs. have common organs at the secretariat level:

E.g. United Nation Systems Chief Executives Board for Coordination see p.1096 for composition. Joint Sessions and Meetings Exchange of Observers Reporting E.g. Agreements with UN oblige specialised agencies to submit annual reports to the ECOSOC. Discontinued in 1977. see p. 1100 Can also be reporting on an ad hoc basis. E.g. UNGA Res 47/187 (1992). Sec-Gen invited UN bodies to report on their activities in former socialist states, with the aim of forming an overall picture of what was going on in those states. Several European orgs report to the Council of Europe. Organisations and Organs Responsible for Coordination UN is responsible for coordinating work of specialized agencies. Task allocated to UNGA, more specifically, ECOSOC. See p.1101 for a summary of ECOSOCs work in this regard. Many IOs are active in the field of development The UN Development Programme coordinated the work of the UN and the specialised agencies in development for many years. In 1997, the UN Development Assistance Framework was set up. See Fn 174, p.1103 for a nice quote. Several studies have concluded that despite these efforts, little has been achieved in terms of coordination. 1985 ECOSOC defined greatest shortcoming as the fragmentation of effort the lack of definition of priorities and of coordination. Planning Exchanges

Exchange of plans / information / documentation. ILO, WHO and UNESCO send documentation to the Council of Europe to keep the Parliamentary Assembly of the Council of Europe aware of its achievements. Exchange of personnel can also be beneficial. High degree of uniformity in working conditions is important to realize this cf UNs uniform system. In practice, this doesnt occur very frequently. A unified international civil service remains a faroff possibility. Training o Co-ordination at a National Level: 1739 1741 Coordination is difficult to achieve different ministries often want to maintain their own autonomy Activities can only be expected to be consistent when MS conduct a consistent policy in all the organizations. Nevertheless, conduct of MS is important if work of IOs is to be harmonized. Example: para 9 of UNGA Res 47/199 of 1992: GA recommended country strategy notes of developing countries (formulated by developing countries + UN) in order to ensure the effective integration of assistance provided by the UN system into the development process of countries. Can ensure consistent policy by: (1) Selecting national delegates for highly technical organizations from a single office (eg. EURATOM & European Nuclear Energy Agency or UPU & European Conference of Postal and Telecommunications Administrations (CEPT)) (2) Create coordinating body. The FCO often performs this function. Delegates receive instructions from the FCO, which will coordinate policy. Instruments of External Relations ***Agreements***

o Lecture: General capacity to conclude treaties Need competence Approaches classic inter-state relationship Law-making treaties Geneva Conventions HR Treaties etc Competence becomes relevant here EU intends to become a member of the ECHR long discussion previously. How would that work: would EU propose judges? Power to create new IOs? Still controversial VCLT II: not yet in force largely the same as VCLT 69 Binding force EU: treaties concluded by EU are also binding for individual MS: stated in EU Treaty (?) Other IOs: less clear, because not explicit in most constitutions. Could base binding force on principle of loyalty to an IO of which an MS is a member (status of this principle is unclear: probably not customary IL) Capacity to enter into international agreements if it has the competence w/in the IO structure to regulate those issues (can assume this). o Notion of agreement: The ILC has recognized 16 different names for treaties. Convention is used for those treaties drafted by IOs. The majority of treaties concluded by IOs, either with other IOs or with states, are called agreements. An agreement in this sense is one concluded under international law, as opposed to one concluded under the national law of a state. Distinction not always sharp e.g. host agreements of IOs with states may include elements of domestic law. In some cases, agreements may be concluded with entities that are not recognized as subjects of international law depending on their purpose and substance.

NB: Arguable whether such entities ought to be regarded as de facto subjects of international law in this context. Internal agreements concluded between different organs of the same IO are to be excluded for present purposes. NB: Excluding situations where members of IOs accept certain obligations towards the IO created by separate instruments governed by international law. o Capacity to make agreements Capacity of IOs to conclude Treaties is recognized in the preamble to VCLT II Art 6 VCLT II says capacity to conclude treaties of IO is governed by the rules of that organization Implication: Some IOs cant. Agreements may only be concluded in those areas where the IO is competent to act. Fundamentally different from states. IEAE constitution, Art IXA provides for agreements with members to make special fissionable materials available. ICC Statute Art 3.2 expressly anticipates an agreement with one member of the organization on its HQ. Constitution of EC: Envisages agreements nonmember states. Several constitutions also provide for agreements with other IOs. See fn 243, p.1117. Some constitutions dont contain specific provisions. Doesnt seem to matter, there have been very few challenges to legality The competence of IOs to make agreements is related to the competencies of their members. A copyright convention to which an IO accedes solely to protect its own publications. The most developed legal rules on the competence to conclude agreements are to be found in the EC. See bottom p. 1119 for examples.

ECJs position: The internal and external powers of IOs can no more be separated than those of states. ERTA case demonstrates problem: Under EC Treaty, Community was empowered to make binding rules regarding rest periods for drivers and so onERTA was negotiated, which dealt with the same issues. Commission claimed, and court upheld, that the Community enjoyed the capacity to participate in the agreement (ERTA European Road Traffic Agreement). This doesnt mean that members cant participate as well and this only applies when the EC constitution has expressly attributed the competence to the community or the community has actually acted and made rules. Mixed Agreements, where a treaty covers an area that is partly w/in the competence of an IO and its members IO and members are parties EC often concludes these see 1756 pp. 11211122 for examples Difficult to draw a distinction in practice between situations where the substance of an agreement falls fully within competence of the communities, and partially within the competence of its MS ECJ says the agreement must be assessed having regard to its essential objective rather than in terms of individual clauses of an altogether subsidiary or ancillary nature. (Fn 276). Advantage: Mixed Agreement offers a compromise where it is difficult to take a decision on competence. But how the competences are divided remains problematic. sometimes the agreement in question requires the IO in the instrument of ratification, to declare the extent of its competence. Problem: An IO becomes party to an agreement where some of its members stay out of it:

Its a matter of whether the treaty allows partial adherence, some dont. Reservations are the way around this, so that IOs can still become party to an agreement. o Competent Organ to Conclude Treaty Often, the collective membership concludes the agreement. This is still the IO making the agreement, not its members. To determine whether the IO is a party, the content and purpose of agreement are the guiding criteria. But, its still a problem unclear whether states are acting in their capacity as sovereign states or as elements of the IO. Therefore, organs of the IO are the preferred option. Usually its the general congress. Not always e.g. UNSC on matters of peace and security. Sometimes, even the UNSG can conclude an agreement like the HQ agreement with the US but this was done with the express authorization of the UNGA. o Subject Matter of Agreements: All IOs can conclude agreements on their status and relations with others. Most universal organizations make agreements with their developing members on the granting of aid. Co-operation of non-members sometimes requires an agreement. Generally, IOs dont participate in law-making treaties. Create obligations that can only be fulfilled by states, so dont participate, eg. Geneva Conventions opinion of Office of Legal Affairs Notable exception is VCLT II some IOs participated at the conference: right to speak, submit proposals and to form part of the consensus, but not the right to vote.

It would be anomalous if some states could not participate while an IO could (eg. Germany formerly when it was not part of the UN Russia objected to EUs participation in the 1968 Sugar Agreement, although they were overruled, as the EECs participation was important). Establishment of other IOs (Q3). This has met some resistance. No apparent reason why this type of subject matter should be withheld, it just adds a more complex character to the newly formed IO. ***E.g. in 1961 the UN and FAO (specialised agency) established the World Food Programme. Did this, because there was a discrepancy in membership. However, WFP has no independent legal personality. No formally signed text, just parallel resolutions in the general congresses of the IOs.*** EU o ECJ has said that ECs competences extend to creating new IOs. In Opinion 1/91, ECJ held that if the EC is party to such an IO, it would be bound by any decisions of its court. o EEA does not involve a transfer any sovereign powers just provides for extensive cooperation per ECJ o EC has concluded so called Europe Agreements (mixed agreements) with Central and Eastern European states, which create new IOs of which the EC is a member: 1780 Also look at ICTR and ICTY (although not in the context of external relations) Legal Force Minimum criteria to qualify as formal agreements = parties must have intended their arrangements to be governed by international law.

Otherwise, the legal character varies greatly. E.g. HQ agreements have a contractual character. Validity: Under VCLT II, Art 46.1, an IO cant claim that its consent to be bound by a treaty is vitiated due to a violation of the rules of the IO pertaining to competence to conclude treaties. Unless, however, the violation is manifest and concerns a rule of fundamental importance. Art 46.2 Arts 48-52, vitiate agreement on grounds of use or threat of force, error, fraud corruption etc. Needless to say, cant violate a peremptory norm. Binding Force: EC constitution expressly states that agreements concluded by the EC shall be binding on the MS as well. EC Art 300(7). ***Diplomatic Relations*** o This is the new for a for cooperation o Lecture: Basis in Vienna Convention on Diplomatic Relations 1961 between states Question is how do IOs compare to states here? Active (sending envoys) and passive (receiving envoys) legation Passive legation: eg permanent missions/permanent representatives to the UN Coordinate efforts of the state w/in the IO: different role to normal ambassadors part of the IO as well. Clear in the EU as well COREPER (very important sub-organ) Active legation: Non-MS has no need to accept an envoy

MS are members of the Io and counterparts very different to states With Lisbon Treaty European External Action Service headed by High Representative new diplomatic service to be created, comparable to that of states this is new. Not clear how it will develop. Doesnt directly answer to the Commission, Council or EP. It is an independent organ. Embassies of states will still exist and will still represent members of all EU citizens Representatives of UN family as a whole. Mainly there to coordinate development work. Now, Resident Coordinator is ambassador level. Host states dont know what to do with envoys of IOs Permanent reps and diplomats similar o Necessarily in this context the diplomatic relations are of a different character to those carried out between states. The interests of IOs are in a specific field. o In the context of IOs, the difference between active legation and passive legation is more important that in the context of sovereign states. o Passive Legation = Establishment of representations of states at the HQ of the IO. Permanent missions to the UN in New York, Geneva and Vienna, ie. permanent representatives sent by states. Non-MS, liberation movements and partial members may also have permanent missions. Eg. PLO in New York. Called a permanent observer mission. As of July 2002,169 non-MS had accredited diplomatic missions to the European Communities. IOs may maintain permanent missions to other IOs Eg. Council of Europe has a permanent observer mission a the UN.

All of these greatly resemble diplomatic missions by states. Generally granted privileges and immunities (often required by HQA or by the 1975 Vienna Convention). But, the relationship between IO and MS permanent mission differs in several respects: (Q4) (1) Relationship is tripartite it involves the host state as much as the IO and the MS. (2) The relationship may be closer in the IO context. Why? Because of the mission usually will operate within the internal structure of the IO, less part of its external relations. Due to nature of person being sent its going to be an expert in certain matters etc. Permanent missions may even resemble organs in the IO.legation (3) Permanent mission serves function of coordinating the MSs national representation in the various organs of the IO. (4) Certain aspects of diplomatic relations differ: Eg. rules of precedence, elaborated for diplomats, are inadequate for IO o Active Legation = missions of IO being established abroad A right to active legation? IOs dont need to have a national to send the Vienna Convention on Diplomatic Relations makes this clear. Should the international legal personality of IOs mean they have this right? (EP adopted a resolution to that effect in 1960) Legal personality is not an absolute concept from which rights and obligations can be derived. Practice with states is that diplomatic relations can only be created by mutual consent. The same can be said of IOs. Not always necessary/derivable by the theory of implied powers. In practice, active legations are rare. The EU being an exceptional case.

Permanent Missions to members missions for development (often necessary in this context): Resident coordinator / Resident Representative (for UNDP) system used helpful for systems particularly in post-conflict areas where reports have called the system chaotic. Functions of regional representatives of specialized agencies are limited to fields in which they operate. Relationship is significantly different to the relationship with consular officials. Activities of IO are restricted to a particular field UN reps act in the relevant field and participate in government planning and supervising implementation of plans. But, similar in that they enjoy some sort of special protected position within international law. Host governments may consider the RC to be the head of the mission or the UN man. On arrival at posts, theyll often submit credentials etcin a similar way to diplomats. Missions for other purposes: 77 information centres task restricted to distributing information about the UN. Neither promote nor protect interests of the UN in hosts state. Occasionally, special missions are established. National committees: Created by IOs with a view to promoting the IOs interests within MS. IOs also send Special Missions to members (1832), missions to non-members (1834-9), missions to other IOs (1840) and delegations to international conferences (1841). ***Recognition of Other Subjects of IL (Q6)*** o Recognition of states or other IOs as subjects of international law is implied if e.g. a state is admitted as a member of the IO.

If UN recognizes an entity as a state, no obligation for MS to recognize the entity as a state as well, but indication that state has been accepted by large portion of international community (UNGA and UNSC will have approved). Recognition is of far greater significance in the case of the UN that it is in the case of any other IO or state. NB This is extremely significant, but does not imply recognition by every MS in the UN see Israels admission to the UN, at the time not recognized by the Arab states. For Council of Europe (not EU), acceptance of Turkey as a member showed that Turkey was a member of the European region implications for seats on UNSC etc. Non-recognition can also be significant (although express non-recognition is rare), for example Turkish Republic of Northern Cyprus (rejected by EC and UN) and Transkei (rejected by UN). MS need to take such non-recognition into account. Also happened in the case of the Golan and E Jerusalem (non-recognition by UNGA), but no obligation to do the same for MS. o Recognition of governments Generally just wait until government presents credentials: not normally an external relation question. o Which organ is competent? Generally no explicit procedures (EU is an exception). UNGA has considered itself to be the most appropriate organ to settle matters of recognition by the UN. o NB Possibility of passive recognition: 1855 no real idea what theyre going on about Other Instruments of External Relations o ***Judicial Actions and Responsibility under Public Law*** o Convening International Conferences o Issuing Passports o Depositary of Treaties o Registration of Treaties o Registration of Ships and Aircraft Flag, Seal and Emblem

Supervision and Sanctions

General Points Lecture o Enforcement is the weak point of IL sovereignty is in constant conflict with desire to enforce o Constant problem in discovering what is actually happening information deficit o No international police force carrying out a role similar to that carried out by national police forces: Standing army envisaged by Art 43 UNC, but never realized Not even a specialised agreement concluded under Art 43(1) Art 43(1) UNC is dead letter law o UNSC often doesnt function (willingness of states more important in IL) Cold War and veto power o Enforcement in national legal systems Legislative (creates law) Executive (implements law through ministries, local authorities, the police etc.) and Judiciary (adjudicates on law in event of a dispute) Individual (addressee of law) Efficient system, because theres a hierarchy. Irrelevant if citizen objects, because institutions are higher than the individual. o Enforcement in IL States (who create law; like a parliament) Constitution and rules of IOs (up to this point, fairly comparable to national systems) States (as addressees) Problem is that creators of the law are also addressees of the law. Further, traditional method of enforcement in IL was for states to enforce IL against each other (countermeasures (used to be called reprisals). There are some horizontal measures of enforcement from IOs. In EU for example, Commission can call MS to task, even if an individual doesnt complain. ECJ also does this In UN, UNSC (but with problems of veto) and ICJ IOs have introduced a vertical aspect to the IL system. Not as vertical as national legal systems, because (at least in the UN system), enforcement is generally dependent on state consent.

Supervision important to promote compliance More difficult to set effective supervision in international society than domestic legal order Notion of state sovereignty explains reluctance by states to accept idea of higher supervisory authority One of the most important tasks of IO is to control compliance with their rules of law Cooperation implies renouncing exclusive authority over domestic affairs Although many supervisory bodies have grown up, still IL is essentially enforced by states by their reaction and the interaction of states Look at studies by Friedman on sanctions, distinction; traditional international law of coexistence vs. new IL of cooperation Use of sanctions by IOs more vertical in character Main determinants in this area o 1. Object and purpose of IO o 2. Degree of interdependence existing in IOs field of operation

Definitions Internal supervision (1392-1394) o = overseeing compliance by an IO (and its organs) with its own acts. o Example: EU Commission supervises other organs; MS can challenge organs; so can individuals in certain circumstances o Such acts are supervised by the IO itself or MS o As principal organs have real power over subsidiary organs i.e. they can dissolve them or cut their budget to ensure proper performance o individuals can in rare cases have power to ensure proper performance in those IOs whose organs take action on behalf of individuals individuals concerned may challenge failure to act before international court e.g. 1993, World Bank created Inspection Panel to review complaints by group of individual persons o Periodic evaluation of practices may lead to amendments of practices External supervision (1395-1398) o = supervision of its members to which the acts are addressed o Most IOs legal rules are recommendations that do not bind members legally, so how do they ensure implementation?

o o

Supervision means all methods which help to realize compliance with legal rules i.e. encouragement, threat of sanctions, supervision, official recognition of violations (repeated tolerance/lack of supervision may become settled practice and CIL) Political factors important relations between members and common desire for further cooperation, and interests of any interested parties e.g. citizens of a state Enforcement measures have negative character threat of harm being done to defaulting members, although difficult in situations where members unable rather than unwilling to comply e.g. ICAO technical regulations difficult to apply where states do not have necessary equipment Gradual move to limit negative effect of sanctions. Powerful states may do whatever they want. If sanctions are imposed, they might leave the IO. Other states may stay (for example, Iraq decided to stay in the UN in the early 1990s). No article in UNC allowing this, and declaration stating this would be disapproved of. Nevertheless, probably allowed. Growing reliance on informal means of enforcement. For IOs which address a limited number of private individuals, supervision is easier than for organizations composed of states e.g. IATA (International Air Transport Association)

Supervision of the Implementation of Rules Supervision by other members acting on their own account (1400-1401) o Treaty constitutions of IOs means contracting parties take on obligations to each other gives each member right to supervise each others observance of rules o ILO and European Convention on Human Rights contain rights for citizens of participant states but no direct rights for the states themselves e.g. case from by Cyprus against Turkey for people in Northern Cyprus o See South West Africa case (1966) ICJ implied individual members lose right to supervise observance of rules if organization itself fulfils this task but can observe and notify possible violations o Wont often happen Supervision by or on behalf of the organization (1402-1427) o Supervision based on reports of the members (Q2)

MS might not submit reports; those reports may in any case be biased Methods to make self reporting more efficient a) Reporting at regular intervals e.g. ICCPR within 1 years of entry into force and whenever Human Rights Committee requests. Now, often do it every 2/4 years rather than every year. In Human Rights Council, have the Universal Periodic Review (UPR) system (every 4 years, states have to report on the HR system in their countries. They dont all do it at the same time). Human Rights Council (until 2006 called the Commission) is part of the UN: intergovernmental body made up of 47 MS who promote HR globally; based on UDHR Human Rights Committee: body of experts which checks whether MS of ICCPR violate its provisions: treaty-based system b) Harmonization of lay out easier to study and make comparisons c) Coordination of national reports making summaries and reports Publishing the report aids transparency and deterrent d) Possibility of NGOs presenting comments e.g. ILO Governments requested to send copies of reports to national organisations of employers and workers, who can present comment Under ICCPR, parties may refer to NGO reports, but no obligation to do so If you can refer to an NGO, can share the workload e) Substantial discussion between supervising body and state party Members required to report on their compliance measures e.g. ILO; Human Rights Treaty Bodies

Members required to notify any discrepancies between their own regulations and those of the organization e.g. ICAO and WMO Reporting usually derived from treaty but sometimes requested by resolution e.g. Committee of Ministers of the Council of Europe resolution (1961) requiring member confirmation of Council of Europe Conventions ratified EC Directives are binding as to result but methods left to MS. o Supervision based on information collected by the individual Obligations unfulfilled results in superficial reports Security Council (SC) of UN may investigate dispute or situation if risk of international friction (Art 34 Charter) Human Rights Council has special rapporteurs EC wide power to collect information without cooperation of the governments of its members (EC Art 211) The influence of the IO stems from its competence to gather the information and the obligation of members to supply it Secretariat role varies in each IO although supervision by it more effective than by other members or by policy-making organs as there to safeguard interests of IO less influenced by political factors? o Supervision based on inspection a) Continuing supervision UN supervising commissions in 2 areas: Decolonization and o Period visits to trust territories (once every 3 years by a visiting mission of the trusteeship Council Peace-keeping o E.g. UN Aouzou Strip Observer Group (UNASOG) to observe implementation of agreement 4.4.94 between Chad and Libya (ICJ Judgment 3.2.94)

Strong inspection systems especially in area of disarmament and arms control OPCW has a system of routine inspections, challenge inspections and investigations of alleged use of chemical weapons. 3 types of inspection, including challenge inspection: target state has no right to refuse them IAEA: o Obligation to inform state concerned before the visit o By the end of 1999, inspections at 900 sites in 70 states ICRC (although private organisation) Under GC III, right to go to all places where prisoners of war may be held and right to interview POWs. b) Retrospective fact-finding UN fact finding team headed by former president of Finland, Martti Ahtisaari (supported by Security Council) re Palestinian refugee camp Goldstone Report Direct contacts procedure by ILO Standing Commission under ICRC Supervision by individuals (1428 to 1438) o Vigilance of individuals is effective supervision (see Van Gend en Loos) o Petitions UN accepts petitions from peoples of dependent territories and arising from UN human rights conventions. When petitions permitted should be preceded by exhaustion of such local remedies as exist o Court Proceedings No power (since end of ECSC ended in 2002) for individuals to bring alleged violation by state before national courts under EC and Euratom treaties National courts can seek preliminary ruling and transfer to EC Court o National committees

Some IOs have national committees e.g. ICAOs National Facilitation Committees can be effective Petitions by individuals create attention and political pressure In areas of individual human rights redefinition of concept of national sovereignty may be necessary e.g. should UN have intervened in Uganda, in 1970 in Cambodia and Vietnam? Difficult to grant powers of intervention to an IO for the protection of human rights not sufficient guarantees against abuse e.g. 1991 NATO operation in Kosovo

o Effect

Official Recognition of Violations (1439-1443) Before sanction can be imposed necessary to officially recognize whether obligations have been violated , especially where sanctions cannot be imposed. Recognition o Constitutes a sanction (even where no legal consequences) o Mobilization of shame o International relations of state will suffer o How and where should it be published? Primarily done by political organs, but Political organs of most universal IOs may base their decision concerning violation on Advisory Opinions (AO) of ICJ e.g. Certain Expenses case re Art 17.2 UN ICJ established which members unwilling to pay had breached their obligations Political organs of European organizations have to recognize members violation; exceptions are where decision taken by judicial organs o ECtHR (official recognition by court legally obligates state to terminate the violation Art 46) o European Court of Justice (ECJ) o In EC and Euratom Commission ensures Treaty obligations are honoured Official declaration that situation is illegal means measures to correct it should be taken: see Legal Consequences for State of the Continued Presence of South Africa in Namibia (South West Africa) AO (1971)- ICJ said untenable interpretation if after declaration made by SC under Art 24 states were free to act in disregard of such illegality

Art 94: each MS of the UN undertakes to comply with ICJ judgments. If not other party may refer the case to the UNSC

Waiver of Obligations (1444) if member fails to fulfill obligations IO can either accept situation or try to change it by exerting pressure on the member Some constitutions e.g. WTO Art IX allow for waiving of obligations of members under certain conditions Sanctions (1445-1552) General Points o Prevailing manner of enforcing international law is still self help reaction by states to alleged breaches of international obligations by other states o Sanctions are not meant to be punitive preventative function pressure exerting to induce states not to violate rules in future repressive function to stop current violations o Best: greatest pressure with least harm to the people of the state o Gold prefers the term remedy rather than sanction because it need not have punitive element e.g. informal persuasion, which in practice works well Sanctions by the other members (1499) o Some IOs expressly forbid enforcement measures by individual members against other members e.g. EC constitution Art 292 but most dont even so doubted that unilateral measures can be taken. Sanctions (authorized) by the organization (1450-1454) o The possibility of imposing sanctions If MS neither dependent on IO nor convinced of their indispensability the IO cannot effectively impose sanctions Contrast i) Greece withdrawing from Council of Europe when sanctions applied in 1969, and ii) Iraq and FRY not withdrawing from UN when economic and military sanctions applied

Most constitutions provide for some degree of coercion but not for severe sanctions e.g. ILO and WHO in cases of racial discrimination Look at constitutions UN Charter Art 94.2 if one party fails to perform obligations from ICJ judgment then other party may have recourse to SC ILO Art 33 same sort of provision applied in 2000 against Myanmar 2 relevant questions i) May IO impose sanctions on members who have violated obligations other than those contained in constitution? ii) May sanctions be taken which are not provided for in the constitution? Use strict interpretation: NO Suspension of Voting Rights (1455-1460) Art 19 UNC: if in arrears: See Certain Expenses case. Art 19 was applied against Soviet Union, France and several other states for failure to pay contribution. Clear that organization was not strong enough to deny voting rights to some of its most important members! Mainly used as sanction for non-payment of financial contributions may vary in intensity Form of sanction may vary some with automatically lose right to vote if the amount of arrears equally a certain amount assessed by formula Some may require express decision which a majority of the members must support weaker sanction e.g. WHO See Art 19 UN Charter Soviet Union argued that express decision needed but text offers little support Can be suspended for other reasons e.g. Parliamentary Assembly of Council of Europe suspended voting rights of Russian delegation over human rights violations in Chechnya in 2000 Suspension of Representation (1461-1465)

Sanction has been used several times without express constitutional authority an implied basis may sometimes be found in the power of each organ to approve the credentials of the delegates sent by its members organ could decide that delegation does not properly represent the state e.g. 1974 UN suspended South Africa from 29th Session of General Assembly (GA) by rejecting credentials o Suspension of services of the organization Many members dependent on IOs for important assistance so IO can threat to withhold assistance to persuade member to comply with the rules e.g. IMF if of opinion member using resources in a manner contrary to its purposes By giving assistance to member, IOs acquire a level of power o Suspension of rights and privileges of membership (1466-1469) Some constitutions invest general congresses with power to suspend the rights and privileges of membership May suspend rights and privileges of other participants in their work e.g. observers Rarely used by IOs but e.g. South Africa by WMO in 1975 concerning Namibia Can congress apply only some or all of sanctions? Can be argued both ways but sensible to allow IO flexibility IO may also suspend rights and duties which exist mutually between members inter seserious sanction e.g. ICAO o Expulsion from specific organs (1470-1474) No constitution provides for expulsion from a particular organ but member has no constitutional right to participate in an organ apart from general congress e.g. International Coffee Agreement no member can be elected to Executive Board if in arrears with contribution for 6 months Can exclude a member by defining its composition in a particular way e.g. regional boundaries Every member is entitled to participate in the sessions of the general congress may need express constitutional provision to expel member from such sessions

In general rule the power to expel member from an organ will come from the organ itself but its power to create sub organs of all member but one may be disputed as may its competence to change composition of plenary organ in such a way that one member is excluded from future participation see GA and UNCTAD and the proposed exclusion of South Africa 1968; Portugal was excluded from UNESCO 1965 Expulsion from the organization (1475) Most drastic sanction means that IO loses ability to exert pressure on ex-member Sanctions through other organizations (1476-1477) Expulsion from one organization expulsion from others e.g. Expulsion from UN expelled from UNESCO, IMF World Bank GA has no right to expel member of the other specialized agencies the agencies are obliged to submit UN recommendations to their appropriate organs. E.g. . . . Only SC for the maintenance or restoration of international peace and security are binding on the specialized agencies. Economic sanctions (1478-1486) Can be effective if organization can get support of both members and non-members e.g. 1965 SC against India and Pakistan Use must be weighed up against effects on long term world economy Under Chap VII UN Charter wide possibilities for enforcement measures Ch VII UN: Economic sanctions: Art 39 Art 41. Often detrimental for citizens not the HSG, eg. Iraq or Zimbabwe targeted sanctions (put people on list and freeze their assets; travel restrictions, reduce staff at diplomatic missions) Interruption of economic relations and or rails, sea, air, postal etc and severance of diplomatic relations Military sanctions

NB. SC and GA may both recommend economic sanctions but power to introduce binding measures only attributed to SC E.g. measures (including withdrawal of ambassadors) against Spain in 1946 E.g. comprehensive economic sanctions against Southern Rhodesia and arms embargo of South Africa only two cases of mandatory economic sanctions imposed by SC SC imposed comprehensive economic sanctions e.g. Iraq Difficulties in preventing harm to innocent people smart/targeted sanctions directed at leaders of a country e.g. Reduction of staff at diplomatic missions or consulates, travel restrictions for senior officials E.g. against Taliban and Al-Qaeda SC established sanctions committees Economic sanctions by EC based on Art 41 UN Charter measures not involving the use of armed force Forces of international organizations and military enforcement (1487-1512) Is IO competent to establish military forces (most have no power to do so) AND what law should be applied to such forces?? IO form their military units for national military forces recruited ad hoc some international forces have been dominated by troops of one particular state which prejudices their international character preferable to have them mixed Legal position staff of the force under national jurisdiction, territorial jurisdiction exerted by host state E.g. 1965 Organization of American States 1968 armed forces to Dominican Republic forces (mainly US, then Brazil, Costa Rica, El Salvador, Honduras, Nicaragua to restore democracy E.g. 1968 troops from several Warsaw Pact members (mainly USSR) into Czechoslovakia to protect communism NB UN Art 43 envisaged collective force never implemented because of Cold War and then MS lack of enthusiasm

Peacekeeping forces e.g. UN Operation in the Congo (ONUC) 1960-1964 Since end of 1980s number of peacekeeping operation and observer missions has increased e.g. UNPROFOR control of UN protected areas (occupied by Serbia) in Croatia didnt prevent Srebrenica tragedy of 1995 Also enforcement operation under authorization of SC e.g. military action taken against Iraq in 1990, to cooperate with government of Kuwait to uphold resolution 660 restoration of international peace and security in the region E.g. Rwanda 1994 enforcement action authorized by SC mainly by France for 2 month period then UN force took over o Other sanctions Mainly under commodity agreements reduction of a states next years quota European Union; developments for action under Art 228 EC Bonifaci/Francovich judgment Brasserie du Pecheur/Factortame Enforcement within the national legal order o Enforcement through national parliaments Powers of parliaments vary greatly from state to state Certain IOs use national parliaments to by-pass uncooperative governments e.g. ILO Art 19 o Enforcement through national courts o Should national court apply rules of international law? Monist and dualist theories (1522-1537) A national courts decisions may be more effective than any international enforcement measures so IOs try to promote enforcement of rules in national courts efforts are made to draw attention to national court decisions applying IL Remember no supervisor more alert than an interested individual especially when permitted to bring case to court at domestic level

Dualist no other legislative authority can make laws for that state and no international agreement shall be part of domestic law of the state except as may be determined by the parliament e.g. Irish constitution Monist treaties become the law of the land immediately upon ratification E.g. Netherlands constitution states that international agreements and decisions of IOs shall have binding effect in national law if their contents allow general application (selfexecuting provisions). National laws, either prior or subsequent to them, may not be applied in so far as they are incompatible with such international rules In practice neither of the two systems is applied in its pure form so too simple to assume that a monist system is per se a guarantee of domestic implementation of treaties Dualist systems transformation required either by general or specific methods. Since the international rules are incorporated in the national legal order by ordinary laws, they cannot have priority over subsequent legislation 3 rules which militate against obliging national courts to apply rules of international law o 1. National judges are appointed within national legal system and belong to that system should not apply legal rules from outside system however difference in origin should not mean differences in legal force of methods of application o 2. National courts of one state may apply rules in different manner from another states

o 3. national courts differ so much state to state that they are liable to decide the same question in totally different way however main concern of IO is to ensure that their rules are applied o different in EU where a uniform interpretation is essential for many rules of Community Law o ECJ supported monist theory in Costa-ENEL case (1535) when it rejected the dualist theory with respect to the relationship between Community Law and national law Application of Constitutional Provisions Sometimes constitutional provisions of IO cannot be applied by national courts question that must be decided by the international community Some are suitable for application by national courts e.g. European Communities, IMF, some provisions of GATT Application of International Decisions The application of treaty provisions not too difficult Secondary law of IO poses more problems E.g. EC direct application, but other IOs decisions not SC decisions under Chap VII o Initiative for decisions of national courts When is an interested party competent to bring an international case before a national court? If state fails to fulfill some international obligations national courts do not admit such cases. N.B. EC an exception When is an international rule self-executing or directly applicable to the extent that an interested individual may invoke it? ECJ has accepted that individuals have right to invoke before national courts, all rules of Community Law which produce direct effects in legal relations between the member states and the persons subject to their laws Sanctions against individuals

o o

Most legal rules of IOs addressed to MS thus they can only be violated by the members and sanctions applied directly only against the members Legal rules of IOs can be addressed to individuals or individual enterprises within the MS these individuals may then infringe the rules, creating the necessity of sanctions being imposed Punishment by national authorities is only an indirect sanction, the application of which depends on cooperation of the relevant national authorities Sanctions imposed on individuals directly are more effective and more comprehensive than those imposed indirectly Possible sanctions by IO against individuals Publicity, warning, withdrawal of support of the organization, withdrawal of support by all members of the organization and fines Most important is levying of fines penal measure e.g. EC fines imposed by European Commission

Exam Session
Analyse: Pick out legal issues Ensure that you give legal advice, not political advice/opinion Always indicate the source of the legal advice No need for intro and conclusion: just answer the question Technical questions Ability to request AOs under 96(2) o UNGA gives a general authorisation o All organs (except Secretariat would be a massive increase in his powers) (eg. Trusteeship Council, ECOSOC) can request AO from the ICJ o O/s organs: Most, but not all specialised agencies (eg. not the UPU) Also, OPCW, IAEA Should EU law be included in study of IOs? o See Chapter 1 o Some people say EU law has become too specialised o Virally (writing in 1970s): not about cooperation, but about integration (ie. becoming one unit) and such organisations should be distinguished, because the law will be different. Blokker disagrees. In 1992, specifically rejected idea of a federation. Now, reference to ever closer Union NB. Often need to look at the constituent instrument of the IO to determine the correct answer, eg. on the issue of abstentions in decision-making Are privileges and immunities customary? o Basic privileges and immunities, probably. Not totally agreed. National courts have said there are basic immunities: Immunity from jurisdiction: IO as an entity Maybe also for employees (diplomatic immunity is customary) Inviolability of premises Tax privileges more controversial o Need a provision tripartite regulation 2009 Exam

Question 1: o Public IO? International agreement (basically a treaty) between 2 or more states (+) Creating a new legal person under international law (?) Organs with a will of their own secretariat? o Legal Status? No Distinction between secretariat and union o Privileges and Immunities? Need more too general Need HQA with Spain and multilateral agreement for people when o/s Spain Question 2: o Chapter 7 o Half the points for (a) Not for budgetary authority (UNGA) to take political decision again Effect of Awards (1954) o Half the points for (b) No UNGAs Resolution re budget is binding internally Then, discuss Certain Expenses: first of all for organ itself to determine jurisdiction/legality Question 3: o Chapter 2 147 o No expulsion clause in OAS is it lawful o Therefore, is it like admission as a new member? It is still a member no need to readmit. No new legal act needed o Dont need to mention arrears etc. Question 4: o Discuss legal personality Chapter 11 Decide whether it includes international legal personality Why is it a key issue? Rejected to have explicit mention in 1997 ToA

In 2001, began to conclude treaties, w/o a TEC basis No objection before ECJ perhaps constituted practice Codification of practice o Declaration: Political language no effect on competence and doctrine of attribution Doesnt talk about/exclude implied powers Personality doesnt tell you anything about competences