The law of international
institutions
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a few words about the subject…
• Two streams of scholarship
• ’A common law of IO’s’
• IO’s are always sui generis
Brief history
• Concert of Europe (Congress of Vienna)
• Hague system (peace conferences 1899
and 1907)
• international public unions (ITU, UPU)
• League of Nations
• United Nations
Types of international organizations
• IGO’s
• NGO’s
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Global/regional (UN/EU)
UN programmes (UNEP, UNDP)
International courts
’hybrids’; COPs, IUCN, ICRC,
CSCE/OSCE…
An example; MEA COPs
• Brunnée: ’COPs […] represents hybrids between
issue-specific diplomatic conferences and the
permanent plenary bodies of international
organizations; they exercise their functions at
the interface of the law of treaties and the law of
international organizations.’, Leiden J. Int’l L.
(2002)
• Churchill & Ulfstein: ’Autonomous Institutional
Arrangements’, Am. J. Int’l L. (2000)
Definitions
• Art. 2 of VCLTSIO
• Art. 2 of ILC draft articles: “. . . the term
‘international organization’ refers to an
organization established by treaty or other
instrument governed by international law
and possessing its own international legal
personality. International organizations
may include members, in addition to
States, other entities”.
Definitions
• Schermers & Blokker: ’forms of
cooperation founded on an international
agreement creating at least one organ with
a will of its own, established under
international law’.
Legal issues common to all IO’s
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International legal personality
Interpretation of constituent treaties
Powers (including treaty-making)
Responsibility
Priviliges and immunities
(more) legal issues common to all IO’s
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Control of legality
Decision-making process
Membership
Dissolution/succession
Delimitation of competences
Amendments
Are IO’s bound by human rights law?
Reform of IO’s
International legal personality
• Reparation for injuries case
• ”. . . It is a subject of international law and
capable of possessing international rights
and duties. . .” (Rep. Case 179)
• Doctrine of implied powers
Consequences of international legal
personality
• (1) distinguishes collective entity from the
members
• (2) entitles the organization to bring an
international claim
• (3) the organization is responsible for its
own acts (International Tin Council
litigation)
Objective international
personality
• . . . ”fifty states, representing the vast
majority of the members of the
international community, had the power, in
conformity with international law, to bring
into being an entity possessing objective
international personality, and not merely
personality recognized by them alone . . .
(Rep. Case 185)
Doctrine of implied powers
• ”the rights and duties of an entity such as
the Organisation must depend upon its
purposees and functions as specified or
implied in its constituent documents and
developed in practice” (Rep. Case 180)
• Beware of circular arguments!
• Functional test
’Circularity’
• If a general treaty-making power is
deduced from the very fact of personality,
even though personality itself is deduced
from a specific treaty-making power.
• The proper test is the functions and
powers of the organization
Treaty-making powers
• ILC: ”. . . All entities having treaty-making
capacity necessarily (have) international
personality. On the other hand it (does)
not follow that all international persons
(have) treaty-making capacity”
• IO’s do not generally have law-making
powers (but see e.g. art. 25 UN Charter)
The will of the founders
(subjective/inductive), ’organizationhood’
(objective)or ’presumptive personality’?
(’mystery’ wich approach ICJ use in Rep.
Case)
’Presumptive personality’
• As soon as an organization performs acts
which can only be explained on the basis
of international legal personality, such an
organization will be presumed to be in
possession of international legal
personality.
Is ’personality’ a misleading metaphor?
• Bederman prefers ’communities’ (”The
Souls of International Organizations”,
Va.J.Int’l.L., (1996):275)
Control of legality
• What is the effect of a decision that is
beyond the powers (ultra vires) of the
organ or the organisation?
• ”Is there room for judicial control of
decisions of the political organs of the UN”
(Akande, 1997, ICLQ 46:309)?
• Certain Expenses case – ultra vires
decisions are a nullity
Privileges and immunities
• Customary international law requires
states to grant privileges and immunities to
IO’s
• Art. (104) and 105 of UN Charter
• Functional
Privileges and immunities
• immunity from jurisdiction
• immunity from execution
• inviolability of premises, property and
archives
• currency and fiscal privileges
• freedom of communication
International responsibility
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ILC draft articles (DARIO)
ILA Committee on Accountability
International Tin Council cases
ECHR Behrami/Saramati cases
”International Organizations:Then and Now”,
Am. J. Int’l L. (2006): 324-347
• According to Alvarez IO’s have
accomplished more than their creators
anticipated;
• Transformation of sources of law/content;
• New law-making actors;
• Changed our understanding of what
international law is and what is means to
”comply” with rules
Rules for the World, Barnett &
Finnemore
• Barnett & Finnemore use organisational
theory to understand IO’s (Int. Org., 1999,
53(4):699-732);
• Sarfaty, ”Why Culture Matters in
International Institutions . . .”, Am. J. Int’l L,
(2009): 647-683;
• Emergence of Global Administrative Law
(www.iilj.org).
A marxist or TWAIL perspective
• Chimni, ”International Institutions Today”,
EJIL (2004):1-37.
The UN system
• Principal organs (art. 7); General
Assembly (chapter IV); Security Council
(chapter V); ECOSOC (chapter X); ICJ
(chapter XIV); Secretariat (chapter XV);
Trusteeship Council (chapter XIII)
• Specialized agencies
• Institutional reform