1.

Introduction: Organizing an international order…

International organizations are created on the basis of interests and concerns which transcend
interstate borders

 international membership, scope or presence reducing conflict,

 Goals: regulate activities with an international element enhancing cooperation
 Issues:
o to provide for human security
o to facilitate social development
o To protect and advance human rights etc.
 The sovereign state remains the key organizing principle of the global society
 The (nation-)state is considered the normal political unit

Types of international organizations

 By membership
o States: Intergovernmental organizations (IGOs)
 Global (UN, WTO)
 Regional (EU, NATO)
 Investors: Transnational/multinational corporations (TNCs/MNCs)

 Individuals:
o Legitimate: Civil society / Non-governmental organizations (CSOs/NGOs)
o Illegitimate (terrorist groups, organized crime structures)
 By focus of activity / functions
o international security, trade and investment, economic development, human rights,
social problems, protection of the environment, public health, nutrition,
telecommunication, etc.
o universal (all of the above) – the United Nations system

INGOs

 nonprofit, private organizations that engage in a variety of international activities

 alternative names: civil society organizations (CSOs), independent sector, volunteer sector,
grassroots organizations, transnational social movement organizations, private voluntary
organizations, selfhelp organizations, non-state actors
 Financing: mostly membership dues, charitable contributions and private sourcing
 E.g. Amnesty International, Greenpeace, International Committee of the Red Cross, etc

INGOs’ roles in world politics

 Information gathering with people on the ground, interaction with other NGOs, IGOs and
MNCs.
 Private interactions involving various transactions to bring together groups and individuals.
 Participate in international politics by defining goals, providing information, and giving expert
advice
 Pressure governments and IGOs through direct and indirect lobbying INGOs are instrumental in
setting international norms and executing international policy
Multi-/transnational corporations

 for-profit firms that have subsidiaries in two or more countries and engage in transnational
production activities involving movement of goods and services across national boundaries
o Agriculture and extractive industries, including gas and oil explorations
o Financial services: multinational banks, brokers and insurance companies
o Manufacture of goods
o Food chains, etc.

 Some large multilateral corporations, given their large economic influence as well as their
extensive financial resources, can have a powerful influence on local economies as well as the
world economy and play an important role in international relations and globalization.
 In addition to efforts by multinational corporations to affect
 governments, there is much government action intended to affect corporate behavior. The
threat of nationalization (forcing a company to sell its local assets to the government or to other
local nationals) or changes in local business laws and regulations can limit a MNC's power.

IGOs (definition)

1. formal institutions created primarily between states (referred to as member states), or of other
intergovernmental organization(s)

2. established by an international treaty

3. have at least one organ with a distinct will of its own

 subject to international law

 permanent structure

Power relations

 The role of international organizations in world politics and the scope of their activities has
greatly increased.
 The global society is shaped by the structures of power in the same way as are national
societies:
o those possessing more power will have more say in policy making

 IGOs are dominated by the most powerful states

 IGOs have less power than MNCs
 INGOs have minimum impact on IGOs

History of IGOs 1815:

 1815: Central Commission for the Navigation of the Rhine (followed by other river
commissions)
 1865: International Telegraph Union(now UN specialized agencies)
 1874: Universal Postal Union(now UN specialized agencies)
 The Concert of Europe (1815-1914)
o A forum for international collaboration on European security and commerce.
 o The balance of power that existed in Europe from the fall of Napoleon to the
outbreak of WWI.
o The Concert would meet from time to time in an International Conference or
Congress (such as the Congress of Vienna in 1814-15), in order to plan a solution
by mutual agreement, whenever some problem arose that threatened peace
between European nations.

The League of Nations (1920-1939/46)

 The first international organization whose principal mission was to maintain world peace
o preventing wars through collective security and disarmament
o settling international disputes through negotiation and arbitration
o protection of minorities
 US President Woodrow Wilson considered its architect, established under the Treaty of
Versailles after WWI.
 Failure: politically challenged by Japan-China conflict in Manchuria (1931) and the Italy-
Ethiopia conflict (1935). The outbreak of WWII ended the League’s history.
 UN embraces most of the League’s principles and structures.

(The International Labour Organization was also established at the 1919 Peace Conference.)

The United Nations

 The name "United Nations", coined by US President Roosevelt, was first used in the Declaration
by United Nations of 1 January 1942, during WWII, when representatives of 26 nations pledged
their Governments to continue fighting together against the Axis Powers.
 The Charter of the United Nations was signed on 26 June 1945 in San Francisco by the
representatives of 50 countries.
o Poland, which was not represented at the Conference, signed it later and
became one of the original 51 Member States.
 The United Nations officially came into existence on 24 October 1945, when the Charter had
been ratified by a majority of signatories.
 Designed to be center of multilateral diplomacy in postwar

The United Nations

 Purposes:
o restore peace and maintain security
o establish friendly relations among nations
o address economic, social, cultural and humanitarian problems
o promote respect for universal human rights

 Universal membership, currently up to 193 countries (all recognized states in the world)
 Headquarters in New York.
  6 official languages: Arabic, Chinese, English, French, Russian and Spanish.
 5(6) principle organs, several agencies and autonomous organizations = the UN family
of IGOs.

Main organs of the UN 1

1.General Assembly

othe main deliberative, policymaking and representative organ of the UN

oAll Member States are represented.
oDecisions on important questions, such as those on peace and security, admission of new
members and budgetary matters, require a 2/3 majority of the General Assembly.
2. Security Council
o primary responsibility for the maintenance of international peace and security
o 15 Members (5 permanent and 10 non-permanent) – each has 1 vote
o All Member States are obligated to comply with Council decisions.

3. Secretariat – led by the Secretary-General

4. Economic and Social Council

5. International Court of Justice: principal judicial organ of the UN, in Hague

6. Trusteeship Council – defunct

The growth of IGOs

 Rapid growth in the number of all types of IGOs during the 20th century
 Qualitative growth as well
o Roles of IGOs are expanding and taking on new global issues and functions (e.g.
International Mobile Satellite Organization, IMSO
o Theories of IGOs’ growth
o Functionalism
o “Bottom-up” evolutionary approach
o Begins with limited, pragmatic cooperation on narrow, non-political issues that
leads to broader and higher levels of cooperation later on
o Neofunctionalism
o “Top-down” approach
o Need to establish independent and powerful IGOs to address current political issues

The reasons for growth of IGOs

3. Increased international contact

4. Increased global interdependence
5. Expansion of transnational problems
6. Failure of state-centered system to provide security
7. Efforts of small states to gain strength through joint action
8. Successful role models

International vs. supranational organizations?

 World government?

 Far-reaching alternative facing many criticisms concerning its adverse effects on national
sovereignty, cultural diversity, and political experimentation.
 Concern about the ability of world government to preserve and extend democracy in
countries around the world.
 Doubts about the problem-solving effectiveness and unprecedented concentration of power
required to enforce international law and address the world's daunting economic and social
problems.

International vs. supranational organizations?

Regional government

o Task of overcoming nationalism and bringing heterogeneous peoples together is easier than
with a global government
o Allows for greater cultural diversity and political experimentation than global government

European Union is the only truly supranational IGO:

o decisions which bind the member-states can be taken by majority vote

o EU law has supremacy over conflicting domestic law
o much of EU law may be directly effective in the legal orders of the member-states

Roles of IGOs

1. Interactive arena

1. nations pursue self-interest

2. using an IGO makes it politically easier to take action
3. IGO becomes focus of struggle and not forum for cooperation
4. reduced support for IGOs if they do not promote national interests and/or goals
5. theory: intergovernmentalism

2.Center of cooperation

1 Promote and facilitate cooperation on specific issues, often non-political

2. Seek to build trust and solve social and economic issues that transcend national borders
Why would states cooperate?
3. (neo)realism: for the self-interest of states
a. regime theory: co-operation can yield greater net results than going it alone
4. (neo)liberalism (functionalism, idealism): out of altruism

2. Institutional structures

▶Most IGOs have various organs to perform various functions and keep each other in check

▶ EU – principle of institutional balance; UN – Assembly vs. Security Council

▶Organs performs tasks in the name of the organization

▶Organs usually lack a separate legal personality

▶Issues to be discussed:

▶ States can create IGOs. Can IGOs themselves create other organs, and if so, under
what conditions?

▶ What exactly is the position of member-states of the IGO: are they to be considered
not just as creators of the IGO, but also as its organs?

▶ Is there a hierarchy between the organs of IGOs?

Organs

1. Plenary body
2. Executive body
3. Administrative body
4. Judicial body
5. Parliamentary body

Regular organs

 Plenary body

▶ UN General Assembly, Council of the EU, Council of Ministers (CoE), North

Atlantic Council (NATO), General Conference (ILO), etc.

▶ where all members meet at more or less regular intervals

▶ usually, the persons composing the plenary represent their government (exception: ILO - half is
representatives of employers and employees)

▶ main task: to set standards common to all, at least on the internal functioning of the organization
(but cf. the Council of the EU)

 Executive body

▶ Security Council (UN), Commission (EU), Governing Body (ILO), Military

Committee (NATO), etc.

▶ meets and may take decisions on shorter notice

▶ some have the power to make binding decisions (e.g. UN Security Council), others are engaged in
preparatory and executive activities (cf. EU Commission)

▶ principle of representation is not absolute

 Administrative body (Secretariat)

▶ International civil service must be neutral and impartial, working only for the interests of the
organization as a whole

▶ „In the performance of their duties the Secretary-General and the staff shall not seek
or receive instructions from any government or from any other authority external to the
Organization. They shall refrain from any action which might reflect on their position as
international officials responsible only to the Organization.” (UN Charter Art. 100. para. 1)

▶ Staff hired on the basis of „the necessity of securing the highest standards of
efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting
staff on as wide a geographical basis as possible.” (Art. 101. para. 3.)

▶ This does not mean they do not have a political role.

▶ UN Secretary-General may bring problems to the attention of the Security Council

(Article 99)

▶ He also often mediates disputes between the Member States

Other organs

Judicial bodies

1. to solve disputes between member states (cf. CJEU, ICJ)

2. between the IGO and its staff (cf. EU Civil Service Tribunal 2005-2016, UNAT)

3. Between organs and member states (CJEU)

4. Between organs of the same IGO (CJEU)

5. point of reference for domestic courts (cf. preliminary ruling procedure of the CJEU)

▶ independent judges are elected

▶ „regardless of their nationality” – e.g. ICJ, but to represent the main forms of

civilization + the principal legal systems of the world

▶ ↔ CJEU, ECtHR: one judge from each Member State

Parliamentary body

▶ Parliamentary Assembly of the CoE (PACE), European Parliament (EU), NATO Parliamentary Assembly
(but: based on agreement between participating parliaments à not an official organ of NATO!), etc.

▶ usually purely advisory role

▶ except: European Parliament has some real powers

▶ representation of member states: composed of members elected by and from the national
parliaments of the MSs

▶ except European Parliament à directly elected by EU citizens, represents the peoples of

Europe

Committees

Functions

1. help the organs in policy- and decision-making: experts

à „take politics out of politics”

2. represent various interest groups in the decision-making process:

advocates

3. make sure that those who take decisions can be held accountable: watchdogs

Problems

▶ not to disturb the system of institutional checks and balances

▶ democracy and transparency: where decision-making takes place in committees, far from the
public eye, control is difficult to realize

▶ composition: which interest groups are represented and can exercise

some influence on decision-making?

Organs of the UN and the EU

UN Charter, Art. 7: „There are established as principal organs of the United Nations: a General
Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International
Court of Justice and a Secretariat.”

▶ par. 2 allows for the establishment of such subsidiary organs ‘as may be found
necessary’

TEU, Art. 13: „The Union shall have an institutional framework which shall aim to promote its
values, advance its objectives, serve its interests, those of its citizens and those of the Member States,
and ensure the consistency, effectiveness and continuity of its policies and actions.”

▶ Institutions: European Council, the Council of Ministers, the Commission, European

Parliament, Court of Justice of the EU, European Central Bank, Court of Auditors (=7) + several
subsidiary and auxiliary organs

Creating organs

1. standard method: by means of (amending) the constituent treaty (state

 sovereignty!)

2. it is generally accepted that organs may create subsidiary organs

▶ UN Charter, Art. 7. para 2: „Such subsidiary organs as may be found necessary may be
established in accordance with the present Charter.”

▶ a specific power granted to the General Assembly (Art. 22), the Security Council (Art. 29) and
the ECOSOC (Art. 68) à such subsidiary organs as are deemed necessary for the exercise of their
respective functions

Effect of awards of compensation made by the UN Administrative Tribunal (ICJ, 1954)

 UNAT (1950-2009): established by the General Assembly to hear disputes between UN

staff and the UN
 began to issue awards of compensation to staff members whose complaints had been
found justified
 Secretary General asked the UNGA to reserve financial resources in the budget
 Some member states objected: UNGA had no power to create UNAT in
 the first place + UNAT had no power to issue awards of compensation
 UNGA’s request for advisory opinion: Does the General Assembly have the right to
refuse to give effect to an award of compensation made by the Tribunal?

 ICJ: what did the UNGA intend to do when it created the UNAT?

▶Statute of the UNAT: „Tribunal”, „judgment”, „final and without appeal”

▶the Assembly intended to create a judicial body, not just an advisory committee. à Its
decisions are res judicata, having binding force between the parties to the dispute.

 Who are the parties?

▶staff members vs. UN, represented by the Secretary-General

▶since the UN is bound by judgments of UNAT, so too are the organs of the UN,

such as the General Assembly

 While the power to create UNAT was not specified in the UN Charter, it could be
implied from the Charter ‘by necessary intendment’ (cf. doctrine of implied powers)

▶The expressed aim of the UN Charter is to promote freedom and justice for individuals
à it would hardly be consistent with this aim if the UN should not afford its own staff judicial
remedies to settle employment disputes

Limits?The Tadic case

▶ What are the limits to the powers of an organ to establish subsidiary organs? à Prosecutor v. Dusko
Tadic (Appeal Chamber of ICTY, 1995)

▶ Did the Security Council have the power to establish the International Criminal Tribunal for the
Former Yugoslavia, or it acted ultra vires?
 ▶ Art. 39, UN Charter: the Security Council has the power to determine whether there
is a breach of the peace, threat to the peace, or an act of aggression. This power is a very wide
one.

▶Art. 41: „the Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions” à non- exhaustive list, may
include setting up a Tribunal, as it „would contribute to the restoration and maintenance of
peace”

▶Basic principle: in the absence of express prohibitions to create subsidiary organs, existing organs
must be deemed allowed to create sub-organs within the limits set by their constituent documents.

Inter-relationship: hierarchy or not?

Can organs of IGOs control each other, and if so, under what conditions?

▶The ECOSOC and the Trusteeship Council are subordinate to the General Assembly (cf. UN Charter,
Art. 66 & 87).

▶With the Secretary-General, the question of hierarchy hardly presents itself; his powers in most areas
are complementary.

▶General Assembly, Security Council, ICJ à ???

▶ 1962 Certain Expenses case (GA peace-keeping missions): Assembly’s power to deal
with peace and security is complementary à cannot take binding decisions (cannot force
member-states to send troops) + cannot act under Chapter VII of the Charter (enforcement
actions)

▶ But the Court avoided the decision on the question of hierarchy: „each

organ must, in the first place at least, determine its own jurisdiction”

The position of member-states

▶Much of the implementation of decisions of IGOs rests with the MSs

▶ the Security Council may authorize armed action, but does not have its own troops

▶ EU sets tariffs at its external boundaries, but does not have its own customs officers

▶Member-states are creators as well as organs of the

organization???

▶ In many IGOs they are in part subordinate to the organization: binding decisions can
be made even against the wishes of one or more members; duties of co-operation; duty of
community solidarity
▶UN Charter, Art. 2, paras. 2 & 5:

UN members shall „fulfil in good faith the obligations assumed by them”

+ „give the United Nations every assistance in any action it takes”

▶TEU, Art. 4. para. 3:

Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which flow from the Treaties. Member States shall take
any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the
achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment
of the Union’s objectives.

Issues of membership

▶Usually, the constituent treaties of IGOs control who can join the organization, under what conditions,
and following which procedure.

▶Often a distinction is made between original members and those who join later.

▶ UN Charter, Art. 3: original members are those who either took part in the negotiations of
the Charter and signed and ratified it, or had previously signed the 1942 Declaration by United Nations
and subsequently signed and ratified the Charter.

▶ Rarely has legal significance

▶ exceptions: OPEC, Antarctic system: the unanimous consent of original

members is required for admission of new members

▶ issue of double standards related to the Copenhagen criteria (EU)

Membership of the UN

▶„Membership in the United Nations 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.” (UN Charter Art. 4, para. 1)

▶State: territory, population, effective government, and the capacity to

enter into international relations

▶Peace-loving: presently does not have much weight; on the contrary, it is often thought that the best
way to ensure a peace-loving attitude is to incorporate a potentially aggressive state in the UN

▶Accept the obligations of the Charter

▶reservations, while not explicitly prohibited, are difficult to envisage

▶Able and willing to carry out the obligations of the Charter

 ▶What about neutral states and those that are constitutionally not allowed to engage in
military activities? ↔ system of collective security?

▶Political nature of admission: what matters is the judgment of the UN

▶cf. First Admissions case (ICJ, 1948)

▶„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.” (UN Charter Art. 4, para. 2)

▶the Second Admissions opinion (ICJ, 1950)

▶ General Assembly: Security Council is only given the power to recommend

à GA can admit a member if the Council casts a negative vote

▶ ICJ: No! Recommendation is a ‘condition precedent’, neither organ can decide on its own
about admission.

▶ Still: Security Council’s permanent members can prevent admission by using their veto rights.

Memebership of the EU

▶TEU, Art. 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.”

▶ Art. 2: respect for human dignity, freedom, democracy, equality, the rule of law and respect
for human rights, including the rights of persons belonging to minorities

▶ to be decided unanimously by the Council, having consulted the Commission and having
received the assent of the European Parliament

▶ an agreement between the Member States and the applicant State à

submitted for ratification by all the contracting States

▶ ‘Copenhagen criteria’ (1993): free-market economy, stable democracy, rule of

law, and the acceptance of all EU legislation

▶ the issue of double standards in minority protection

Other form of membership

▶associate membership: limited rights, possibly leading up to full membership at a later date

▶ usually, it entails that nationals of the associate member cannot hold office

within the organization, and the associate member has no voting rights

▶ for entities (territories) which are not themselves responsible for the conduct of their
international relations (e.g. FAO, WHO, UNESCO)

▶partial membership: a state is a full member of some organs without being a member of the parent
organization itself (e.g. formerly Switzerland to UN)
▶ observer status: starting point for full membership, or entities who cannot become members for they
are not states (State of Palestine, Holy See to UN)

▶ sometimes IGOs themselves have observer status with other IGOs (e.g. EU to UN)

Representation

Which government is supposed to represent a state within an IGO?

▶Constituent treaties do not address the issue

▶In 1971, the representative of Taiwan was dismissed from the UN Security Council and the General
Assembly, instead representatives from the mainland were allowed to represent China.

▶During most of the 70s and 80s, the credentials of the representatives of South Africa were not
accepted by the UN General Assembly.

▶ Credentials are supposed to certify that Mr/Ms X rightfully represents the government of the
state – verification of credentials is not supposed to amount to an analysis of the policies of the
government concerned.

▶ May be a reasonable political solution between letting a state fully co-

operate, or expelling it from the organization altogether.

Terminations of membership

1. Expulsion

▶ UN Charter Art. 6: the General Assembly, upon recommendation of the Security Council, may
expel a member if it „has persistently violated the Principles” of the Charter

▶ IMF: „compulsary withdrawal” (Czechoslovakia, 1954)

2. Dissolution of the organization (e.g. League of Nations)

3. Withdrawal: certain period of notice + all obligations fulfilled (see, Indonesia from UN 1965)

4. Amendment of the constituent treaty, if the party doesn’t accept it

5. State ceases to exist see next slide on state succession

▶Suspension of rights and privileges of membership ≠ termination!

▶usually relates to voting rights

▶UN Charter Art. 5: members against whom preventive or enforcement action is being
taken; Art. 19: who does not pay its contributions

▶TEU Art. 7: serious and persistent breach of the values referred to in Art. 2

State succession in IGO membership

▶What will happen to the obligations of the predecessor states?

 ▶principle of continuity vs. clean slate

▶Vienna Convention on Succession of States in respect of Treaties (1978/96)

▶apply to IGOs „without prejudice to any relevant rules of the organization”

▶Problem: few organizations have their own rules on the topic

▶Situation depends on the form of state succession

 Merger: new state takes over (although the territorial scope of the obligations would not
necessarily and automatically alter), IGO memberships succeed (e.g. Yemen)

 Accession: former treaties of the acceding state are not succeeded, except IGO memberships
(e.g. GDR)

X Dissolution: former treaties are succeeded to all new states, except IGO memberships – not
automatically, even if one of the new states claims the identity of the predecessor state (e.g. USSR,
Czechoslovakia, Yugoslavia)

X Secession: same as dissolution (e.g. Bangladesh, Montenegro)

▶While membership itself is often regarded as personal, commitments entered into under the
organization’s auspices need not be!

The legal position of international organizations

▶Legal person = a legal entity having rights and obligations under a certain legal system

▶Domestic (vs. International) legal personality:

Constitutions of many IGOs provide that the organization should have personality in domestic
law to enable it to:

▶ Contract for goods or services

▶ Acquire or dispose of property

▶ Institute legal proceedings in local courts

▶ Have the legal capacity to excercise its functions

Domestic legal personality

▶ UN Charter Art. 104: „The Organization 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 fulfillment of its purposes.”

▶ Functional necessity test

▶ TFEU Art. 335: In each of the Member States, the Union shall enjoy the

most extensive legal capacity accorded to legal persons under their laws
 ▶ it may, in particular, acquire or dispose of movable and immovable property and may be a
party to legal proceedings

▶ to this end, the EU shall be represented by the Commission

▶ the EU shall be represented by each of the institutions, by virtue of their administrative

autonomy, in matters relating to their respective operation

▶Domestic legal personality of an IGO may also extend to its organs and

subsidiary bodies.

International legal personality

▶Being capable of independently bearing rights and obligations under international law =
subject of international law

▶Originally: only states

▶From the mid-20th century: inter-governmental organizations, individuals, other entities

▶No standard set of rights and obligations

▶ “The subjects of law in any legal system are not necessarily identical in their nature or
in the extent of their rights…” (Reparation for Injuries Suffered in the Service of the United
Nations – Advisory Opinion of the International Court of Justice, 11 April 1949, p. 178.)

Indicators of international legal personality

How to decide whether an organization has legal personality

under international law?

1. Right to enter into international treaties (ius tractatuum)

2. Right to send and receive legations (ius missionis)

3. Right to bring and receive international claims (ius standi)

4. (Privileges and immunities)

ad 1) Ius tractatuum

Where does treaty-making capacity come from?

▶ Directly from public international law? à unlimited

▶ From the constituent instrument of the given organization? à limited

▶1986 Vienna Convention on the Law of Treaties Concluded with or between International
Organizations
 ▶ „international organizations possess the capacity to conclude treaties which is necessary for
the exercise of their functions and the fulfillment of their purposes”

▶ „the capacity of international organizations to conclude treaties is governed by the rules of

that organization” including „the constituent instruments, decisions and resolutions adopted in
accordance with them and established practice of the organization”

ad 2) Ius missionis

▶The right to send and receive legations

▶A number of IGOs have permanent missions with states and vice versa

▶IGOs also have missions (representations) with one another

▶ E.g.: 164 states and 40 non-state entities have diplomats accredited to the EU

– most states combine their EU accreditation with being their state’s ambassador to Belgium

▶1975 Vienna Convention on the Representation of States in their Relations with International
Organizations of a Universal Character

▶ Awaits its entry into force (34/35 ratifications)

ad 3) Ius standi

▶ „The capacity to resort to the customary methods recognized by international law for the
establishment, the presentation and the settlement of claims”

▶ negotiation, protest, request for an enquiry, request for submission to an arbitral tribunal

▶ IGOs cannot be parties in cases before the ICJ!

▶„It cannot be doubted that the [UN] has the capacity to bring an international claim against one of its
Members” … „It is clear that the [UN] has the capacity to bring a claim for this damage.” (ICJ,
Bernadotte-case, p. 180)

▶ ICJ fails to indicate the specific source of this right à it seems that the right to bring claims is
inherent in being an IGO (or just the UN?)

Reparation for Injuries (Bernadotte) case

Factual background

▶Tragic incidents directed against UN personnel in Palestine à culminated in the assassination, on 17

September 1948, of Count Folke Bernadotte of Sweden, the UN mediator in the Palestine conflict, and
of Colonel André Sérot, a French UN observer.

▶Murders were attributed to a group of Israeli extremists (the Stern Group) whose members had so far
failed to be arrested and prosecuted by the Israeli authorities.
▶The assassination took place after Israel declared independence on 14 May 1948 but before it was
admitted to the UN on 11 May 1949.

Reparation for Injuries (Bernadotte) case

Questions raised by UNGA

1.In the event of an agent of the United Nations in the performance of his duties suffering injury in
circumstances involving the responsibility of a State, has the United Nations, as an Organization, the
capacity to bring an international claim against the responsible de jure or de facto government with a
view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to
the victim or to persons entitled through him? (Yes)

2.In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled
with such rights as may be possessed by the State of which the victim is a national? (by basing the
claim upon a breach of an obligation due to itself (obligation of protection)

Source of international legal personality

1.Will theory

▶It is the will of the founders of the IGO which decides on the organization’s legal personality.

▶ International law is thought to be based on the freely expressed consent of states à

same should apply to IGOs

▶Problem: relatively few constituent treaties provide explicitly for the international legal
personality of organizations

▶ TEU Art. 47: „The Union shall have legal personality.”

2. Objective theory

▶ Legal personality of IGOs follows the same pattern as that of states: an entity meets the
requirements that international law attaches to its establishment à possesses international legal
personality

▶ Follows from acquisition of „organizationhood” (àdefiniton of IGOs!)

▶ Problems:

▶ Neglects the intentions of founders

▶ Distinct will of its own à decisions by majority OK, but unanimous decisions are easily
traced back to the member-states

3. Presumptive personality theory

▶ Pragmatic approach: IGO performs acts which can only be explained on the basis of
international legal personality à IGO will be presumed to have international legal personality unless and
until the opposite can be shown
 ▶ „[F]ifty 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...” (ICJ, Bernadotte case, p. 185)

▶ UN Charter itself is silent on the issue.

▶ What about the few explicit provisions granting int. legal personality?

The irony is..

▶International legal personality is a normatively empty and essentially descriptive concept

▶ Neither rights nor obligations flow automatically from a grant of personality.

▶ e.g. the EU performed international acts before the Lisbon Treaty

▶Some argue that the very metaphor of personality is misleading

▶ It denies IGOs’ fundamental nature as communities

5. The foundations for powers of international organizations

▶IGOs can only work on the basis of their legal powers à once they act beyond those powers (=
ultra vires), their acts may be declared invalid

▶Where do IGOs derive their powers from?

▶ Conceptual works are scarce

▶ Authors mainly discuss the powers of specific IGOs

▶ But: plenty of court cases!

▶First cases dealing with IGOs: advisory opinions of the Permanent

Court of International Justice (PCIJ) given to ILO

PCIJ and ILO-the beginnings

▶1922 (1): Do the ILO’s powers extend to regulation of the conditions of labour in the agricultural
sector?

▶ The PCIJ, unaware of the principled significance of the request, simply stated that the
question of the proper scope of the powers of IGOs is merely a matter of interpretation of the terms of
the Treaty:

’the question in every case must resolve itself into what the terms of the Treaty actually mean’

▶1922 (2): Competence of the ILO to Examine Proposals for the

Organisation and Development of Methods of Agricultural Production

 ▶ The scope of powers must ‘depend entirely upon the construction to be given to the same
treaty provisions from which, and from which alone, that Organisation derives its powers’.

PCIJ and ILO continued

▶1926 (3): Competence of the ILO to Regulate, Incidentally, the Personal Work of the Employer

▶ It is not up to the Court to be engaged in theoretical discussions:

„In the present instance, without regard to the question whether the functions entrusted to the
International Labour Organization are or are not in the nature of delegated powers, the province of the
Court is to ascertain what it was the Contracting Parties agreed to. The Court, in interpreting [provisions
of the founding treaty], is called upon to perform a judicial function, and, taking the question actually
before it in connection with the terms of the Treaty, there appears to be no room for the discussion and
application of political principles or social theories…”

▶First cases dealing with IGOs: PCIJ was not yet fully aware of IGOs’ special nature; tried to answer
questions relating to their operation simply by looking at the constituent documents as everyday
treaties; no doctrine emerged

The doctrine of attributed powers

▶Change: PCIJ realized that organizational documents go beyond the mere contractual + to answer
every request for an advisory opinion by simply pointing to interpretation would, eventually, create
uncertainty

▶Jurisdiction of the European Commission of the Danube between Galatz and Braila (PCIJ, 1927):

▶ „As the European Commission is not a State, but an international institution with a special
purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the
fulfillment of that purpose, but it has power to exercise these functions to their full extent, in so far as
the Statute does not impose restrictions upon it.”

▶ principle of speciality / attribution / delegation

▶ IGOs can only work on the basis of powers specifically attributed to them by MSs.

▶ Fits nicely into the prevailing positivist thinking in international law:

▶ As a matter of principle, restrictions on sovereign freedoms are not easily to be presumed.

Instead, the rules of international law emanate from the free will of sovereign states.

▶ If rules cannot be thrust upon states against their will, then IGOs too must

function in accordance with the will of the member-states.

▶TEU Art. 5 (2): „the Union shall act only within the limits of the competences conferred upon it by the
Member States in the Treaties to attain the objectives set out therein”

▶ TEU Art. 13 (2): „Each institution shall act within the limits of the powers

conferred on it in the Treaties.”

 Problems with the principle of attribution

▶Theoretical problem: if the notion of attribution is taken to its extreme, then organizations are little
more than the mouthpieces of their member-states à their very raison d’être comes into question

▶ If an organization’s powers are limited to those powers explicitly granted, then the
organization remains merely a vehicle for its members rather than an entity with a distinct will of its
own.

▶Practical problem: IGOs are held to be dynamic and living creatures, in constant development à their
founding fathers cannot completely predict the future

▶ The constituent documents of organizations necessarily come with gaps.

▶Solution: organizations must be allowed some flexibility à certain powers which, while not expressly
granted, are granted by implication?

The doctrine of implied powers

▶Most statesmen and scholars accept the existence of implied powers

▶Debates about the justification of specific implied powers

▶A possible source of implied powers is a rule of interpretation: treaty rules must be interpreted in
such a way as to guarantee their fullest effect (’effet utile’)

▶PCIJ Advisory Opinion on Interpretation of the Greco-Turkish Agreement (1928)

▶ECJ Fédéchar case (1954): „the rules laid down by an international treaty or a law presuppose
the rules without which that treaty or law would have no meaning or could not be reasonably and
usefully applied”

▶Judge Hackworth dissenting opinion to the Bernadotte case (1949): „Implied powers flow from
a grant of express powers, and are limited to those that are necessary to the exercise of powers
expressly granted.”

▶The majority in Bernadotte used a wider version of the implied powers doctrine: relating the power to
be implied not to an express provision, but rather to the functions and objectives of the IGO concerned:

▶ „the Organisation [=UN] must be deemed to have those powers which, though not expressly
provided in the Charter, are conferred upon it by necessary implication as being essential to the
performance of its duties” à too flexible criterion, but still prevails

▶ICJ: Effect of Awards of Compensation Made by the UN Administrative Tribunal – advisory opinion
(1954)

▶ „the power of the General Assembly to create an administrative tribunal arose ‘by necessary
intendment’ out of the United Nations Charter”
 ▶ „the power to establish a tribunal, to do justice as between the Organization and the staff
members, was essential to ensure the efficient working of the Secretariat, and to give effect to the
paramount consideration of securing the highest standards of efficiency, competence and integrity’

▶ not just the well-being of the organization but also that of its individual organs must be taken into
consideration à is there an end to the powers that can be implied???

Pros and cons of the two doctrines

Attributed powers: sovereignty – a bad word or an empowering word? greater democracy and
legitimacy

Implied powers: instrumentalist – law is made for a purpose stronger international governance

Reconciling the two doctrines

▶ Attribution: manifest will of the founders (what you see is what you get)

↔ implication: founders cannot be omniscient

▶ Had the founders only thought of it…

▶ Ultimately, both reasoning go back to the intentions of the drafters: implied powers usually
said to have arisen ‘by necessary intendment’

▶ Solution: to limit the applicability of the doctrine of implied powers

▶ cf. Judge Hackworth’s dissenting opinion: there has to be an explicit power from which the
implied power could be implied – mere ‘necessity’ of some power is insufficient

▶TFEU Art. 352: „If action by the Union should prove necessary… to attain one of the objectives set out
in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting
unanimously on a proposal from the Commission and after obtaining the consent of the European
Parliament, shall adopt the appropriate measures.”

The doctrine of inherent powers

▶ IGOs, once established, possess inherent powers to perform all those acts

which they need to perform to attain their aims

▶ not due to any specific source of organizational power

▶ but simply because they inhere in organizationhood

▶ as long as acts are not prohibited in the organization’s constituent documents, they must be
deemed legally valid

▶ Reasoning: the search for a basis of implication is often cumbersome, rarely completely
convincing and, in fact, not even necessary

▶ Popular in EU law, but not wide-spread in international law

Doctrine of inherent powers

▶ Advantages

▶ functional

▶ makes legal control easier: 1. the act must aim to achieve the

organization’s purpose, 2. it cannot be expressly prohibited

▶ Drawbacks

▶ Possibly goes against the will of the founders

▶ Incoherent by its insistence that a power is inherent as long as it is not expressly prohibited
by the drafters: if the very notion of an inherent power is taken seriously, then whether the drafters
prohibit the activity is irrelevant.

▶ A power that is inherent in organizationhood cannot be cast aside by founders à if it

can be, then it is not, in any meaningful sense of the word, ‘inherent’

Attributed powers revitalized

▶ECJ: Tobacco Directive case (2009)

▶Probably the first case when the ECJ found that the EU lacked altogether the power to engage
in a certain activity (banning the advertising of tobacco products)

▶EU’s powers are limited to those specifically conferred on it à While the Community does
have the power to legislate on specific issues related to Europe’s internal market, this does not mean it
has been given a general, possibly unlimited, power to regulate the internal market.

▶ICJ: WHO Nuclear Weapons case (1996)

▶WHO’s constitution did not grant the WHO the power to address issues concerning the
legality of weapons systems.

▶„The competence of the WHO to deal with [health effects] is not dependent on the legality of
the acts that caused them.”

▶More well-established IGOs have reached the limits, at least for the time

being, of what they can actually engage in

6.The founding teratied of IGOs

▶Constituent documents of IGOs are not ordinary treaties even when concluded between
representatives of States.

▶they establish an organization à „organic-constitutive element” à separate status, special rules

▶usually concluded for an indefinite period

▶may only be amended/terminated by the organization’s pertinent organs

 ▶often interpreted in light of the organization’s goals

▶Law: 1969 Vienna Convention on the Law of Treaties (VCLT) + 1986 Vienna Convention on the Law of
Treaties between States and International Organizations or between International Organizations

▶the 1969 Vienna Convention generally applies to constituent treaties of IGOs (and treaties
adopted by IGOs)

▶relevant rules of IGOs may depart from the law of treaties (cf. Art. 5 VCLT)

Specifilties of treaties constituting international organizations

1. Membership

▶ Accession of new members is not merely a unilateral act by the aspiring new member, but most often
entails a positive decision to allow that state to become a member by an organ of the IGO concerned.

▶ Accession treaty itself will be governed by the general law of treaties.

2. Reservations

3. Amendment (revision)

4. Withdrawal/ termination

5. Interpretation

Reservations to „ordinary” treaties

▶Reservation = a unilateral statement made by a State, when signing or ratifying a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to
that State

▶VCLT: When a treaty provides that no reservations are permissible, or only specified reservations are
permissible, then the matter will be governed by those provisions.

▶What if the treaty is silent on the issue?

▶Advisory Opinion on Reservations to the Genocide Convention (ICJ 1951): states may make
reservations unless these are incompatible with the object and purpose of the treaty concerned (‘object
and purpose’ test)

▶Who shall determine this?

▶each individual treaty partner (see: the institution of objection)

▶in some cases treaty organs appropriated this authority (e.g. European

Court of Human Rights in relation to ECHR) à no general acceptance

Reservations to constituent treaties

▶Vienna Convention Art. 20, para. 3: „When a treaty is a constituent instrument of an international
organization and unless it otherwise provides, a reservation requires the acceptance of the competent
organ of that organization.”
 ▶ the organ competent to address issues relating to reservations is the one competent to
decide on admission

▶International Law Commission: the integrity of the constituting instrument of an IGO is a

consideration which outweighs other considerations

▶ Indeed, few constituent treaties have ever met with reservations.

▶ Instead states use declarative interpretation (e.g. Iran to the Chemical Weapons Convention)
or

▶ opting-out clauses (e.g. formerly the UK from the EU social charter)

Amendment of „ordinary” treaties

VCLT, Article 40

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed
by the following paragraphs.

2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all
the contracting States, each one of which shall have the right to take part in:

(a) the decision as to the action to be taken in regard to such proposal;

(b) the negotiation and conclusion of any

agreement for the amendment of the treaty.

3. Every State entitled to become a party to the treaty shall also be entitled to become a party to
the treaty as amended.

4. The amending agreement does not bind

any State already a party to the treaty

which does not become a party to the amending agreement; article 30, paragraph 4(b), applies in
relation to such State. (à relations between parties are governed by the version which both have
accepted)

Amendment of constituent treaties

▶Do amendments need to be accepted by all members of the IGO, or by a certain majority?

▶If only by a majority, will the outvoted minority also be bound?

▶TEU Art. 48: amendments are to be discussed at intergovernmental conferences especially convened
+ shall enter into force after being ratified by all member states à unanimity

▶ Works well for IGOs of limited membership

▶What happens in the case of IGOs with universal membership?

 ▶ UN Charter Art. 108: amendments to the Charter must be adopted by 2/3 of the members of
the General Assembly + ratified by 2/3 of the member-states, including the permanent members of the
Security Council à bind all members of the UN, even those who have not accepted the amendments

▶ That amendments bind all members makes the UN Charter relatively

special. ↔ Constituent documents usually provide:

1. those states who do not accept an amendment cease to be members of the organization (e.g.
League of Nations)

2. amendments may become effective upon acceptance by a certain qualified majority (usually
two-thirds), but without specifying what will happen to the states who do not accept a
particular amendment (e.g. ILO, UNESCO)

3. amendments will only bind those states that have accepted them

(e.g. FAO, WMO)

Withdrawal and termination – „ordinary” treaties

▶VCLT, Art. 54:

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

(b) by consent of all the parties

▶VCLT, Art. 56:

1. A treaty which contains no provision regarding its termination and which

does not provide for withdrawal is not subject to withdrawal unless:

(a) it is established that the parties intended to admit the possibility of withdrawal; or

(b) a right of withdrawal may be implied by the nature of the treaty.*

2. A party shall give not less than twelve months' notice of its intention to

withdraw from a treaty under paragraph 1.

* e.g. treaties of alliance

Withdrawal and termination- constituent treaties

▶ Members forced to stay in an IGO may sabotage its functioning by refusing to implement decisions or
by implementing them incorrectly.

▶ Covenant of the League of Nations

▶Art. 1. par. 3: „Any Member of the League may, after two years' notice of its intention so to
do, withdraw from the League, provided that all its international obligations and all its obligations
under this Covenant shall have been fulfilled at the time of its withdrawal.”
▶UN Charter: finally no withdrawal provision was included

▶but possible, see the case of Indonesia in 1965

▶customary in nature, clausula rebus sic stantibus, follows from the sovereignty of states

The EU and the Brexit

▶TEU Art. 50 (1) Any Member State may decide to withdraw from the Union in accordance with its
own constitutional requirements.

▶(2) A Member State which decides to withdraw shall notify the European Council of its intention…
[An agreement] shall be concluded on behalf of the Union by the Council, acting by a qualified
majority, after obtaining the consent of the European Parliament.

Interpretation of „ordinary” treaties

Methods of interpretation: VCLT, Arts. 31-32.

▶A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose. à textual (grammatical),
and teleological interpretation

▶In addition to the text (including its preamble and annexes), related agreements of the parties,
related rules of international law and subsequent practice between the parties must be taken into
account. à contextual (logical), systemic and practical interpretation

▶the preparatory works of the treaty (historical)

Interpretation of constituent treaties

▶If an IGO has its own rules of interpretation, then those will take precedence over the Vienna
Convention.

▶International courts tend to interpret constituent documents with a view to the goals for which the
IGO concerned was created.

▶ implied powers doctrine is based on teleological interpretation

▶ cf. case-law of ECJ (Van Gend & Loos,

Costa v. ENEL, etc.)

BUT where the text of a treaty is sufficiently clear, interpreting bodies do not usually look further

▶c.f. Advisory opinion on the Constitution of the IMO’s Maritime Safety Committee (ICJ, 1960)

▶the Committee consists of 14 members having an important interest in maritime safety, “of which
not less than eight shall be the largest ship-owning nations”.

Who has the power to interpret?

▶Ordinary treaties: each party is, in first instance, responsible for its own interpretation of the treaty
▶IGOs: general principle is that each organ is responsible for interpreting the constituent treaty

▶the balance of power shifts away from member-states to organs à

member-states will have to conform to interpretations offered by organs

▶Special status of UN: many treaties are concluded under its auspices

▶even if the UN itself is not a party to such treaties, it may nevertheless assume

a role in the process of interpretation, or request an authoritative interpretation from the ICJ (à
advisory opinion)

▶Which organ? à there is no hierarchy (cf. 1962 Certain expenses case: „each organ must, in the
first place at least, determine its own jurisdiction”)

▶EU: primary role of the Court of Justice (CJEU)

▶other institutions do not have the power to render an authoritative interpretation of the
TEU&TFEU, their interpretations remain subject to review by the Court