Knowledge of Global Organization, Regulation, Administration and Enforcement GORAE - WEEK 3 PDF

2023-2024 David den Dunnen [email protected] International Bachelor of...

2023-2024 David den Dunnen [email protected] International Bachelor of Law Programme Knowledge of Global Organization, Regulation, Administration and Enforcement Lecture #3: International Organizations’ Membership, Powers and Decision-making Procedures  Agenda 1. Membership in an International Organization (IO) 2. Powers of IOs 3. Decision-making in IOs 2 IO Membership, Powers, Decision-making  Questions about the law governing international organizations? IO Membership, Powers, Decision-making 3  1. Membership in an IO N.B. only full membership of states will be discussed − Workshop: Taiwan’s position at the United Nations 4 IO Membership, Powers, Decision-making  1. Membership in an IO Joining the club – acquisition of membership The constituent instrument provides: − Who can join the IO − Under what conditions − Following which procedure 5 IO Membership, Powers, Decision-making  1. Membership in an IO 2 types of Member States (MSs): − Founders − States acceding to the IO As such there is no legal distinction, although acceding states are subject to the admission criteria set by the founders… 6 IO Membership, Powers, Decision-making  1. Membership in an IO If a state becomes member, it will enjoy − Full rights o Voting; privileges and immunities… − Full duties o Financial contributions; adherence to IO’s rules and decisions… 7 IO Membership, Powers, Decision-making  1. Membership in an IO Development of UN membership: https://www.un.org/en/about- us/growth-in-un-membership IO Membership, Powers, Decision-making 8  1. Membership in an IO Accession → constituent instrument − United Nations: art. 4 Charter (UNC) o Para 2: General Assembly (UNGA) decides  Decision-making: art. 18 (2) UNC: 2/3rd majority o Para 2: on recommendation of the Security Council (UNSC)  Decision-making: art. 27 (3) UNC: veto applies! o What if the UNSC does not recommend? Can UNGA admit state?  No: decision-making on accession is a balance between UNGA and UNSC: UNGA may not bypass UNSC ICJ ‘Second Admissions’ Adv. Op. (1950) 9 IO Membership, Powers, Decision-making  1. Membership in an IO − Art. 4 (1) UNC lists: o Cumulative conditions o Shortly after establishment of UN, Cold War started  States from one alliance were prevented from joining UN due to P5 veto from the other alliance  So states were recommended for membership in ‘package deal’ o What did ICJ advise in ‘First Admissions’ Adv. Op. (1948)? Art. 4 (1) UNC lists exhaustive conditions  No conditions may be added 10 IO Membership, Powers, Decision-making  1. Membership in an IO o U.S. and USSR did not take ICJ’s advice  They struck a deal in 1955: en bloc admission of 16 states…! o Conclusion: though governed by law, admission of a new member is a highly political act 11 IO Membership, Powers, Decision-making  1. Membership in an IO When things don’t run smoothly… Option: suspension of membership rights − Temporary measure − Does not free MS from its obligations! − UN o Art. 5 UNC o Art. 19 UNC 12 IO Membership, Powers, Decision-making IO Membership, Powers, Decision-making 2. Powers of IOs Could the World Health Organization ban all smoking in the world? − That’s a question as to the WHO’s powers ICJ ‘Reparations’ Adv. Op. (1949): IO’s international legal personality is inferred from its powers, purposes and practice 13  [T]he Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. ICJ, ‘Reparations’ Adv. Op. (1949) 14 IO Membership, Powers, Decision-making  2. Powers of IOs There’s link with the founders’ intentions - States created the UN through a treaty as a separate legal person, possessing a ‘will’ distinct from them - Legal personality is indispensable for the UN to achieve its purposes: an IO needs to serve the members’ common interests, and ‘the greater good.’ This cannot be achieved by UN being a mere extension of state(s) - So IO’s legal personality has to come with certain capacity, or powers ICJ reasoning criticized as circular reasoning IO needs its own powers in order to operate, to carry out its functions, and to attain its purposes 15 IO Membership, Powers, Decision-making  2. Powers of IOs Attributed powers Powers granted by the MSs to the IO − The will of the IO is directly derivative from that of its MSs IOs are unlike states that have general competence. IOs are only competent to act as far as powers have been attributed to them 16 IO Membership, Powers, Decision-making  2. Powers of IOs Powers of IO are limited to whatever is necessary to perform the functions as defined by its founders in its constituent instrument (‘functional necessity’). IO’s powers stretch far enough to include all acts indispensable for the performance of its functions ICJ ‘WHO Nuclear Weapons’ Adv. Op. (1996) − IOs are governed by the principle of speciality: 17 IO Membership, Powers, Decision-making  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. ICJ ‘WHO Nuclear Weapons’ Adv. Op. (1996) 18 IO Membership, Powers, Decision-making  2. Powers of IOs As the MSs determine the powers of the IO, IO does not have ‘compétence de la compétence’ (‘Kompetenz- Kompetenz’): they are not competent to determine their own powers Will of founders provides for the IO’s 1. Express powers, and 2. Implied powers 19 IO Membership, Powers, Decision-making  2. Powers of IOs 1. Express powers are those explicitly provided in the IO’s constituent instrument − UN? 20 IO Membership, Powers, Decision-making  2. Powers of IOs 2. Implied powers: powers the IO has without them being expressly provided for in the constituent instrument − Why would (or should) an IO have such powers? o Constituent instrument cannot possibly exhaustively list all powers IO will have for the duration of its existence o Developments over time require IO to take action not foreseen by its founders − So IO has certain implied powers because it needs them in order to carry out its tasks 21 IO Membership, Powers, Decision-making  Under international law, the Organization 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. ICJ, ‘Reparations’ Adv. Op. (1949) 22 IO Membership, Powers, Decision-making  2. Powers of IOs Implied powers were confirmed by ICJ’s ‘Effect of Awards’ Adv. Op. (1954) Implied powers are implied in the IO’s constituent instrument Implied powers are to give effect to what founders agreed to by establishing the IO and becoming MSs of it − The interpretation of what is ‘necessary’ to achieve IO’s functions may differ. So IO’s judicial organ often plays important role in determining it Implied powers are not permitted to change/adjust constituent instrument or add obligations to IO or its MSs 23 IO Membership, Powers, Decision-making  2. Powers of IOs Is ICJ empowered to judicially review UN Security Council acts? − ICJ ‘Lockerbie’ (Libya vs U.S.) case (order for provisional measures, 1992) (week #5) 24 IO Membership, Powers, Decision-making  2. Powers of IOs Delegated powers Powers IOs or their principal organs grant to subsidiary organs − Delegated powers have no direct link to will of IO’s MSs It is generally permitted for an IO to create subsidiary organs to which it may delegate part of its functions 25 IO Membership, Powers, Decision-making  2. Powers of IOs Restrictions: Such new organs cannot increase the obligations of the IO or its MSs An IO cannot delegate more powers than it has itself Nor can IO delegate away its responsibility for actions of subsidiary organ for delegated powers Subsidiary organs themselves are typically not permitted to create subsidiary organs to them In general, delegation may be retracted and subsidiary organs be dissolved by IO that established them 26 IO Membership, Powers, Decision-making  2. Powers of IOs Inherent powers Would IOs have ‘inherent powers’? ‘Reparations’ took it beyond the Permanent Court of International Justice’s (League of Nations) position: IOs don’t only have powers implied by the constituent instrument as expression of the founders’ will 27 IO Membership, Powers, Decision-making  2. Powers of IOs IOs also have powers ‘by their very nature,’ as they are essential to the performance of their duties. ‘Reparations’: the nature of subjects of law depends on the needs of the community Still, throughout ‘Reparations’ the ICJ related powers back to what the UNC intends: “… the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter” So the connection to the founders’ will isn’t severed, as implied powers arise only by necessary implication in the constituent instrument 28 IO Membership, Powers, Decision-making  2. Powers of IOs Klabbers: there is a thin line between an IO’s inherent powers and mission creep ICJ’s ‘Certain Expenses’ Adv. Op. (1962) shows more clearly that the UN has the capacity to exercise significant powers that are not directly dependent on the intent of its founders, but are accorded to it as independent international legal person − Some argue that as long as the UNC does not prohibit certain functions, UN has these powers ‘WHO Nuclear Weapons’ contrasts the broader functions and powers of the GA with the narrower ones of the WHO, hence the principle of speciality − ‘WHO Nuclear Weapons’ was criticized for ICJ’s narrow interpretation of WHO’s implied powers 29 IO Membership, Powers, Decision-making  2. Powers of IOs The legality of IO actions, and ‘ultra vires’ Each UN body interprets such parts of the UNC as are applicable to its functions: ‘auto-interpretation’ There is a presumption of legality and validity of IOs’ acts 30 IO Membership, Powers, Decision-making  When the organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the organization. ICJ ‘Certain Expenses’ Adv. Op. (1962) 31 IO Membership, Powers, Decision-making  2. Powers of IOs When the competence of the IO or its body is challenged, the IO or body itself decides whether the challenge has merit − Typically the IO’s legal office/adviser is consulted and advises on this − In case of doubt or of conflicting opinions between bodies, advisory opinion may be requested from ICJ But ICJ has no right of judicial review and may not declare act of organs ultra vires 32 IO Membership, Powers, Decision-making  2. Powers of IOs One could argue that Court of Justice of European Union’s (CJEU) ‘Kadi’ decisions are in effect indirect judicial review of an act of the UNSC Like UNSC, UNGA has been involved in lawmaking, a power not expressly provided in the UNC 33 IO Membership, Powers, Decision-making 2. Powers of IOs An act/decision by the IO that exceeds or infringes the IO’s powers is ‘ultra vires’ − Ultra vires is a question of: is this act valid? Or does it exceed the powers of the IO? − It is internal question for IO So acts adopted ultra vires are not identical to acts in violation of international law − That is a matter of the IO’s responsibility to another party → external matter for IO (week #4) IO Membership, Powers, Decision-making 34  2. Powers of IOs Also distinguish the question whether an IO act is valid from the act’s legal effect, i.e. binding or not binding − External matter Members of the IO or organ are permitted to raise the objection of ultra vires; non-members cannot − Latter can only raise responsibility Who decides whether an act is ultra vires? The IO or organ that acted itself − Some IOs have a court for that o E.g. CJEU 35 IO Membership, Powers, Decision-making  2. Powers of IOs Ultra vires is not applicable to defects that are ‘not essential’ The consequence of establishing an act as being ultra vires is that the act can be annulled, meaning it can be considered to have never existed − For further research on UN’s powers, check out ICJ’s ‘Kosovo’ Adv. Op. (2010) 36 IO Membership, Powers, Decision-making  3. Decision-making in IOs Based on the IO’s constituent instrument, each organ typically has its own rules of procedure Different IOs have different ways votes are allocated or weighted. Not all IOs operate on the basis of the principle ‘one state one vote’ − E.g. International Monetary Fund (IMF) 37 IO Membership, Powers, Decision-making 3. Decision- making in IOs Types of decision-making processes: 1. Decision-making by consensus: no vote, but consultations until general agreement is reached. Decision is taken by ‘acclama- tion’ − Typical at several IOs − Why is consensus attractive? IO Membership, Powers, Decision-making 38 3. Decision-making in IOs 2. Decision-making by unanimity: voting procedure where decision is only adopted if all (present and voting) vote in favour − Advantages − Disadvantages IO Membership, Powers, Decision-making 39 IO Membership, Powers, Decision-making 3. Decision-making in IOs Decision-making by majority − Simple majority: 50% + 1 MS needs to vote in favour for decision to be adopted − Qualified majority 40  Workshop IO membership and decision-making − Case: admission of a new member to the UN − Case study: the Chinese UN membership and the position of Taiwan IO powers − Case study: ‘Certain Expenses’ 41 IO Membership, Powers, Decision-making