Palacky University Olomouc
Faculty of Law
Law of International
Organisations
-International Organizations and the Law
of Treaties 19.04.2011
Support of the foreign language profile of law tuition at the Faculty of Law in Olomouc CZ.1.07/2.2.00/15.0288
Today´s program
The 1986 VCLTSIO :
...
„Considering the fundamental role of treaties in the history of
international relations,
Recognizing the consensual nature of treaties and their everincreasing importance as a source of international law, ...“
• Exchange of Letters between the European Union and the
Government of Kenya on the conditions and modalities for the
transfer of persons suspected of having committed acts of
piracy and detained by the European Union-led naval force
(EUNAVFOR), and seized property in the possession of
EUNAVFOR, from EUNAVFOR to Kenya and for their
treatment after such transfer
• Treaty making by IGOs
• Law of Treaties
– Issues concerning constituent documents of IGOs
– Reservations / Revision / Withdrawal and termination ...
Do IGOs have the capacity to conclude
treaties?
• Yes, however,
• If no explicit competence in constituent document,
where does this capacity comes from?
– Capacity vs. Competence
– Capacity
• = abstract, general capability of sth.
• Capacity derives from general IL
– Competence
• = concrete / specific
• Competence (or power) derives from the rules of the
organization (constituent documents)
– Practice
• Capacity from general IL / competence to conclude specific
treaties derives from constituent documents
• Legal capacities/powers of IGOs?
ICJ (1986): Legality of the Use by a State of Nuclear Weapons in
Armed Conflict, Advisory Opinion. Preliminary objections:
„The Court need hardly point out that international organizations are
subjects of international law which do not, unlike States, possess a
general competence. International organizations are governed by the
"principle of speciality", that is to say, they are invested by the States
which create them with powers, the limits of which are a function of
the common interests whose promotion those States entrust to them.“
• Legal capacities/powers limited by:
– Principle of speciality and
– Principle of conferred explicit / implicit (implied powers)
powers
– No „Kompetenz-Kompetenz“
ICJ Reparations for Injuries Case (at 180):
„… the rights and duties of an entity such as the
Organization must depend upon its purposes and
functions as specified or implied in its constituent
documents…“
Two ways:
1. Explicitly conferred powers
–
–
Stated in the founding (constituent) agreement
establishing the IGO
BUT: Powers are not limited to what conferred
by constituent treaty, but extend to what
necessary to perform functions effectively
Implicitly conferred powers
2.
–
–
–
Derived from the object and purpose of the IO as stated
in the founding document
„Implied powers doctrine“
e.g. UN (Reparations for Injuries, ICJ 1949)
The 1986 Vienna Convention
•
•
•
Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations
(VCLTSIO, done at Vienna on 21 March 1986)
Prepared by the ILC
Not entered into force yet
–
–
Why is then VCLTSIO relevant?
Many of its rules are based on the principles governing law of treaties in generall (as
mirrored in the Vienna Convention on the Law of Treaties 1969)
Article 6
Capacity of international organizations to conclude treaties
The capacity of an international organization to conclude treaties is
governed by the rules of that organization.
•
Some IGOs do not have treaty making powers!
– Benelux
Concrete examples?
• few explicit provision on treaty-making
competence
• United Nations Charter:
– Art. 43
– Art. 57 and 63
– Art. 105
• European Union
– Art. 216-219 TFEU / Art. 37 TEU
– Extensive practice since the Amsterdam
Treaty
Art. 43 UN Charter
1. All Members of the United Nations, in order to contribute to the
maintenance of international peace and security, undertake to
make available to the Security Council, on its call and in
accordance with a special agreement or agreements, armed
forces, assistance, and facilities, including rights of passage,
necessary for the purpose of maintaining international peace
and security.
2. ....
3. The agreement or agreements shall be negotiated as soon as
possible on the initiative of the Security Council. They shall be
concluded between the Security Council and Members or
between the Security Council and groups of Members and
shall be subject to ratification by the signatory states in
accordance with their respective constitutional processes.
Article 63 UN Charter
1.
The Economic and Social Council may enter into
agreements with any of the agencies referred to in
Article 57, defining the terms on which the agency
concerned shall be brought into relationship with
the United Nations. Such agreements shall be
subject to approval by the General Assembly.
EU
Article 37
(ex Article 24 TEU)
The Union may conclude agreements with one or more States or
international organisations in areas covered by this Chapter.
TITLE V
INTERNATIONAL AGREEMENTS
Article 216 TFEU
1. The Union may conclude an agreement with one or more third
countries or international organisations where the Treaties so provide
or where the conclusion of an agreement is necessary in order to
achieve, within the framework of the Union's policies, one of the
objectives referred to in the Treaties, or is provided for in a legally
binding Union act or is likely to affect common rules or alter their
scope.
2. Agreements concluded by the Union are binding upon the institutions
of the Union and on its Member States.
Who is bound?
• Question of competence
• IGOs = cooperation form of States
– Who is bound by a treaty concluded by
IOGs?
• IGOs itself only?
• Member States?
• IGO and the Member States?
Art. 216(2) TFEU
„Agreements concluded by the Union are binding upon the
institutions of the Union and on its Member States.“
Mixed agreements
• Both IGO and its MS become parties to
the treaty
• Reason: sometimes the topic of the
treaty falls partly within the powers of
the IGO and partly the MSs
• Example: EU and fishery
• Problem: „incomplete mixed
agreements“
– Some MS of IGO become parties to the
treaty, some not
Agreements IGO-IGO
• Can an IGO become a member of
another IGO?
– E.g. EU member in WTO / FAO / the
EBRD
• Is this possible under the rules of the
„receiving“ IGO?
– EU and ECHR