International Organisations PDF

.FUNDAMENTALS…………………………………………………………………………………………….ORIGINS AND HISTORY OF IOS…………………………………………………………………………. Over the last century, IOs have become central actors of international law. They are very important forms of states or regions, and most states try to resolve issues that aren’t limited to the domestic domain. Monitoring state compliance with some sort of obligations of international law is the main reason why those institutions are active: nowadays what we call public international law isn’t a law, but it’s all those obligations, duties and entitlements established by IOs. It’s less and less frequent that two states gather at a diplomatic conference and decide how to resolve an issue. They would usually have very specialised issues they will tackle within the framework of an organisation that is specialised in resolving those issues. IOs are specialised bodies that exist over a longer time. These institutions, to be effective, usually are autonomous: they’re independent from the members they have. This type of body has always existed in the history of mankind in one way or another, and at least in recent decades, there seems to be a trend for states or political entities to establish those. An arrangement that is usually thought to be the first one of its kind is an alliance between Greek cities to defend the sanctuary of Delphi: this corporation had its army to defend Delphi, and they also acted as arbitrators/judges, when there were disputes between the members. Related to that there’s the concept of an alliance, usually military: if one of alliance members is attacked, this is deemed to be an attack against all of them, so this should deter third parties from attacking any member of that alliance (e.g. NATO). There was this type of alliance in Italy, in the region of Tuscany, before Christ, before the Romans appeared, there were the Etruscans. There’s also the same concept in northern Germany and the Baltic Sea: it’s an alliance of merchants, the Hanse, that’s turned gradually into a military alliance and abolition of cities that were part of that alliance. Then, there was the Former Swiss Confederation. The 1648, Peace of Westphalia, is the first landmark date in international legal history because that is considered to be the birth of international law, because of when two wars were settled, one between the Dutch and the French. During that congress which took part in two cities on religion (the new protestant states didn’t want to be in the same room as the Catholic states), they had to have a messenger between the two cities, Müstow and Osnabrück, to then reach an agreement. This conference brought with it a new tradition of holding diplomatic conferences. Another landmark is 1815, which was when the Vienna Congress was concluded after the Napoleonic Wars: Europe had to be reorganised because Napoleon dissolved a lot of large state structures like the Holy Roman Empire withdrew the borders and put his family and close friends as well as all over Europe, so that has to be wiped out. Then, all important European states decided that the final act of the Vienna Congress had in mind that Europe should remain pacified, and it’s usually regarded as the beginning of international cooperation. Two principles derive or two institutions that derive from Congress: Holy Alliance – It’s an initiative of the Russian Tsar Alexander I to promote Christianity and the form of monarchy in Europe, and this was mostly defended by some sort of association of the most important Christian monarchies at the time, namely Russia, Prussia, and Austria. Concert of Europe – It included big powers, namely also France and Great Britain, and there was some sort of understanding between them that they were in charge of keeping Europe pacified and without wars. They aligned a bit also their national policies and they tried to maintain a so-called balance of power between them: every time there was a small war somewhere or new colonies were discovered or annexed, they looked that none of the other powers were getting too strong. TECHNICAL COMMISSION AND ORGANISATIONS. The final act of the Vienna Congress established the first precursor of such an institution: is namely the so-called Central Commission for the Navigation on the Rhine (1815), and the participants always stay what they said neutral. It should always be possible to continue commerce on the Rhine and to make sure that this was properly put in place and monitored, they set up this commission, which was given the task to regulate how people were supposed to navigate on the Rhine. It had also the power to make formal decisions to ship owners or merchants if they didn’t comply with the regulations on how to navigate on the Rhine. It still exists today and is headquartered in Strasbourg. At another big conference in Berlin, the Danube Commission (1856), which had even more competencies: it could enact and still enact regulations and levy a fee for using the Danube watercourse, 1 administrative and judicial functions. In the 19th century, there was some new technology that should best be harmonised. So, three different unions were created: the International Telegraphic Union (1865), the Universal Postal Union (1874), and the International Copyright Union (1886). Those institutions have usually the following criteria: Based on an international treaty between States. Powers limited to a certain area of administration. An assembly of State representatives as the main decision-making body. A secretariat is a permanent organ with very limited powers, mainly confined to implementing the resolutions of the Assembly of States. Power to make recommendations but binding States only based on their consent. Usually unanimity rules, sometimes also a majority vote. They are based on an international treaty, which means a legal instrument concluded by different states and at the time, they have very limited powers. Regulations were sometimes enacted by majority vote. Decision-making and legislative powers of the river commissions. Sometimes, dependent territories and colonies had representatives in the public international unions. There was no coordination of the activities between public international unions..LEAGUE OF NATIONS……………………………………………………………………………………. After WW1 and the victims that it caused, there was a change in the understanding that war could no longer be regarded as a normal consequence of what is called the sovereignty of a state being a state and that, in addition, disputes between states before it comes to war should be settled peacefully. The so-called League of Nations (LoN) was founded in 1919, and it’s the first part of the Treaty of Dessau: it had its seat in Geneva. The Treaty of Versailles and the League of Nations put in place for the first time a new concept namely of collective security. There’s a concept in the UN that between the member states there should first be discussion before any results to violence or the military are taken and that, per se, is prohibited to resort to war: the resort to violence is only allowed if it’s sanctioned by the organisation. In addition, all members need to comply and the result of violence is out of their hands. With the League of Nations, the structures become a bit more complex: Assembly – It’s composed of the representatives of the member states. It has the power to make recommendations, but not binding decisions, entrusted with peace, war, security, and social aspects: that’s maybe due to Western arrogance because, at the time when they set up this institution, they thought that the League of Nation was the best institution ever. Usually, there was a unanimity vote and sometimes also a majority vote. Council – It’s a sort of executive board with a limited number of states. Usually, a unanimous vote is required, but there’s no binding decision. It’s the body meant to make important decisions. Secretariat – It’s just a political function. Permanent Court of International Justice – It’s not mandatory. Under the Covenant, there were different concepts: the concept of collective security, the mandatory requirement to settle disputes in a pacific way, the cool-off period of three months (this was the first attempt to outlaw the use of force), the collective guarantee of the independence of the member states, collective sanctions, and disbarment efforts. The League of Nations, contrary to those technical and administrative unions before, was the first institution that had a political purpose, including decisions on war and peace. The sanctions were based on the view of each state in whether there was a case of sanctions: no sanctions, except for those against Italy in 1935, were seriously applied. The LoN had several flaws, one of which is that it never acquired universal membership but was mostly limited to European states, some South American and some Asian states, but notoriously the US never took part in it: they didn’t want to meddle with European issues and Europe shouldn’t be concerned what is going on. The LoN was weakened because some members left (e.g. Germany left in 1933, and the Soviet Union was expelled after the Finland invasion in 1939). 2.THE UNITED NATIONS…………………………………………………………………………………….. With the League of Nations, dissolved in 1946, there was another institution that still exists, which is the International Labour Organisation (ILO) that has been taken over by the UN: at the time there were no regional organisations and there wasn’t the concept of human rights, just a bit of minority rights. Contrary to the League of Nations, the UN is a truly universal organisation, so membership is almost universal (193 member states). Those that aren’t members, it’s usually for political reasons because they aren’t acknowledged as a state (e.g. Vatican City, Western Sahara, and Palestine). The UN was created with the flaws of the League of Nations in mind. What does that mean completely? They knew that the League of Nations failed for many reasons, but one of the most important reasons was that the executive organ, now called the Security Council, wasn’t working properly. The most powerful organ of the UN is the Security Council (SC) which today is composed of 15 members, five of which are permanent and represent the so-called notorious powers. It has more powers and holds the whole institution. One important aspect that everyone after WW2 agreed to that institution and the Security Council is that the permanent members were granted a veto right: with it, the member is just blocked and, according to the UN Charter, it leads to politically unsatisfying deadlock situations, depending on which side is taken part. The Security Council needs always to be able to gather on any day of the year. Then, there’s the General Assembly (GA), which is the main policy-making organ of the organisation, and it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the UN Charter. The decisions taken by the Security Council and the General Assembly, usually require just a majority and not unanimity, but still, not all decisions are mandatory. There are other bodies like the Secretary-General (SG) and the Court of Justice (ICJ), which is mandatory to be a member. There are also special organisations concerned with food, education, international trade, or the stability of the payment system (e.g. UNESCO, FAO, ICAL, IMF, WHO, and World Bank). The UN started also a new year: gradually, the body over time takes formally more and more power and looks at things more closely. At the end of WW2, it was concerned with inter-state issues: now, the UN is more concerned with national issues (e.g. nowadays a state cannot threaten its inhabitants). After the WW2, there was also the rise of regional organisations: Arab League (1945). Organisation of American States (OAS) (1948). West European Union (1948) – It was a defence association mostly against Eastern states. Nonetheless, it was replaced by the NATO and the EU. NATO (1949). OAU (1963) and now the African Union (AU). After WW2, the Soviet Union only participated for a few years and then left its seat..COUNCIL OF EUROPE AND EUROPEAN ORGANISATIONS……………………………………….. It’s the first intergovernmental international institution in Europe with all European matters. What is excluded from it is all security-related topics: it’s an intergovernmental organisation that is geared towards only the cooperation of states. It’s important in human rights (e.g. ECtHR) and the advancement of the rule of law. The main materials used to wage war were coal and steel and some people had the idea that future wars could or could be avoided if they put the production of coal outside the hands of the national states. If the national states cannot have results directly to the production of steel and coal, this might prevent war because they don’t have the materials. So, they came up with a plan to set up an institution devoted to that goal, to set up a monitoring mechanism, a body that could overlook and was always aware of the German, French, and then also Italian or Dutch steel and coal production and could see directly if something is done with that production: this institution was the European Coal and Steel Community (1951), which was meant to merge the French and the German steel industry under the umbrella of a common administration with independent powers. This led to a new architecture of IOs: Commission (formerly known as High Authority) – It’s composed of independent people with the power to enact regulations and render decisions. 3 Council – It’s composed of representatives of the member states’ governments. It has a double function: a person is a representative of his/her state and, at the same time, he/she’s also a member of the organisation. Assembly – It’s composed of representatives of the national parliament. Independent court. This is supranationality because there’s a body that has state-like powers that can enforce its own rules and is also endowed with personality. In 1957 there was the establishment of the European Economic Community (EEC) and the European Atomic Energy Community. The process of European integration has made a great contribution, at least to the theory of IOs, i.e. it’s possible to set up institutions that have all powers and all means to enforce the obligation of the member states. Nowadays for most IOs, the competence of the institution has taken the functional approach, which means that it’s assumed that the understanding of what the institution can or cannot do needs to be interpreted over time, and that it can be to the EU. It also means that more and more competencies are moved from the national stage to the super-national structure universally. This need for integration, mostly economic integration, wasn’t limited to Western Europe. After WW2, the US came up with a plan, the Marshall Plan, how to fund and structure the rebuilding of Europe, which was at least in the first years complied with: it had as a reaction a Soviet counterpart, also economic assistance in the rebuilding of Eastern states, and as a reaction to NATO, the Soviet came together and established the Warsaw Pact, which lasted until 1991. Further European organisations are the European Free Trade Association (EFTA) (1960) for non-EEC member states, the COMECON (1949) as a socialist counterweight to the EEC, the CSCE (1975), and then the OSCE (Organisation for Security and Co-operation in Europe) (1994), which is a sort of a mini-UN. Regional organisations played an important role during the Cold War, however, there were problems within global organisations due to the blocks and the veto in the UN Security Council. The integration efforts were, foremost, on the regional level and regarding trade and economy (e.g. ASEAN, Mercosur, and ECOWAS)..GLOBAL ECONOMIC ORGANISATIONS……………………………………………………………….. During the WW2, there was the idea that war should be committed and there was also the idea that people should set up international trade rules because a failing global economy or a failing regional economy was considered, at least at that time, to be a threat. After all, it could lead to war. The two most important sets of institutions are: IMF – It’s responsible for developing national trade and stabilising exchange rates. Its other objectives: ○ To assist in removing restrictions on payments and transfers for international transactions. ○ To help states with balance-of-payment problems. ○ To facilitate the development through the imposition of policies on countries as a condition of loans, debt relief, and aid. ○ To offer loans with varying levels of conditionality, mainly to poorer states. World Bank Group – It was conceived in 1944 and established a year later. It’s a group of institutions: ○ International Bank for Reconstruction and Development (IBRD) – It’s the most important organisation of a group of financial organisations with complementary purposes. ○ International Development Association (IDA). ○ International Finance Corporation. ○ Multilateral Investment Guarantee Agency (MIGA). ○ International Centre for Settlement of Investment Disputes (ICSID) It’s an international financial institution that provides loans to developing states for capital programs, and its official goal is the reduction of poverty. Its decisions must be guided by a commitment to promote foreign investment and international trade and to facilitate capital investment. Its purposes are: ○ To assist in the reconstruction and development of territories of members by facilitating the investment of capital for productive purposes. 4 ○ To promote private foreign investment using guarantees or participations in loans and other investments made by private investors. ○ To promote the long-range balanced growth of international trade and the maintenance of equilibrium in balances of payments. During the war there were attempts to stabilise the exchange of monetary flows and at the same time, to create rules regarding international trade: this was the purpose of the so-called General Agreement on Tariffs and Trades (GATT), which was entrusted with setting up antitrust or competition rules and the protection of foreign investment. It was supposed to lead to an ITO, which was never put in place because the Havanna Charter (1948) lacked ratification, and the US Congress opposed it. The GATT (now known as WTO) is based on three assumptions: Facilitate international trade by reducing trade barriers: this is called the most favoured nation clause. Tariffs only, and reduction of tariffs; no quantitative trade restrictions: this principle comes from economic thinkers. MFN principle: trade concessions between two member States automatically apply to all member States. The GATT was only a treaty and not an IO; however, it had a rudimentary organisational structure composed of the Council, Secretary General, and Panels as part of a dispute settlement mechanism. In 1994, the World Trade Organization (WTO) was established. With the Cold War, there was a new development. After the war, the UN became super active and looked more into the state’s relations (not only interstate relations) and, at least until 2022, it worked well. The UN wasn’t able to prevent some wars between states (e.g. invasion in Afghanistan or war in Iraq). Nonetheless, the UN is the best organisation today even though there are too many expectations and not enough resources. States are aware that they need to collaborate and to have a more rational outcome. The WTO (1995) is central to international trade and has expanded powers compared to GATT: goods, services, and IP. It has a sophisticated and efficient dispute settlement. States that used to be strongly independent in the 19th century had to give up some of their priorities and gave some powers to institutions: not wise to act just on your own. Domestic measures alone are often not effective (e.g. during the 2020 pandemic). So, states have to accept those institutions as more competent or more effective to tackle issues..GENERAL PRINCIPLES…………………………………………………………………………………….DEFINITIONS………………………………………………………………………………………………... The main point is institutionalisation at the international level, even though there are different views from the angle of international law and international politics. Art. 2(a) ILC Draft Articles on the Responsibility of IOs: “International organisation means an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organisations may include as members, in addition to States, other entities”. An international treaty or another international legal instrument (e.g. resolution of an IO) is the legal basis reflecting the will to establish a permanent institution for a common purpose. States or IOs are considered members. The IO must, according to the founding legal instrument, have an autonomous will distinct from the will of its members, have autonomous decision-making procedures, and be vested with legal personality. Bodies (organs) are capable of forming the will of the IO and vested with the power to represent it internationally. Sometimes, the power to adopt norms is addressed to the members. So, an IO: Is based on sovereign equality. Has limited transfer of powers from members to their IO. Must have its own will and decision-making must be partly independent from its members. The organisation must be based on an international treaty: from this agreement/contract (explain the will of parties) the membership should be for states. All those definitions rely on the three elements that are needed to have a will formed and expressed by states to create something that has its own will and its bodies and structures and that is meant to tackle an 5 international issue. In addition, some definitions require you to have some sort of transfer of so-called sovereign rights, which is related to public policy, such as a transfer on the institution and also an equality of the member states. This is a definition that isn’t actual anymore because there are institutions where states aren’t equal: they have different powers depending on the population. Some institutions count as members only state and create a subject of international law, but that isn’t an international law and they gathered together and formed the union: they aren’t an international organisation because they are based on their national laws (e.g. The United Arab Emirates are based on their national law; the same thing as the association of the Red Cross based on Swiss Law; the IOC). There can be an agreement that people gather and set up an institution, but they can also express the will to not create an international organisation (e.g. G20 which is a sort of diplomatic conference that is held several times a year that pre-discusses a lot of public information, but its members express the way that it isn’t an international organisation; the OSCE; the Commonwealth of Nations). Those institutions are based on an international agreement, which must be based on public international law. They contribute to the advancement of international law because they establish an institution that is permanent and forces the members to observe certain rules. NGOs are institutions that lack at least one of the elements that I have enumerated before: usually they lack public international law (e.g. ICRC, the IOC). They are based on the initiative of the general public all over the world: they can get organisations, but they don’t represent the international organisation. The other requirement is the member states want something permanent, so IOs must have bodies and personality in international law: instead, NGOs aren’t subject to public international law since they are governed by the domestic law of a state..TYPES………………………………………………………………………………………………………… What type an institution is doesn’t matter, since it doesn’t confer or limit or restrict the obligations of the institution concerned. IOs are divided into three main categories: Traditional and supranational IOs. ○ Traditional IOs – The organisation has no special powers to implement what it decides. Those organisations are mainly used to coordinate activities or concerns between the member states, but they don’t have staff or courts that can enforce the decisions directly also for the membership. ○ Supranational IOs (e.g. the EU) – The differences are mostly structural: they relate to the powers of the organisation, of the decision-making within the organisation, and the relation between the organisation, the member states, and the nationals of the member states. In short, they have a close legal and political integration of the members. The idea is that since these institutions require a high level of integration, member states transfer some of their powers to the supranational organisation: these powers are exercised and administrated by its bodies. Individuals may invoke the law of the supranational organisation against the member states and their bodies and staff. The EU is the only institution that is truly a supranational organisation. However, other institutions have some supranational touch (e.g. UN SC which can enact coercive measures; WTO; AU; Mercosur; UNASUR; and CARICOM). Universal and regional IOs – They have distinguishing features such as the field of activity or the geography. ○ Universal IOs (e.g. UN, WTO, IMF, and Worldbank). ○ Regional IOs (e.g. EU, AU, OAS, and Council of Europe) – The membership is in principle only open to states belonging to a certain region. However, NATO and the OSCE are regional organisations: NATO – It has the main purpose to deter the Eastern Bloc from invading Europe, so also with respect. OSCE – It’s concerned with all European concerns except for defence. Some organisations have a very broad purpose: they can be concerned with anything, whereas other organisations are concerned with only one issue, which is usually tech. The UN, which is most likely the only universal organisation, is also concerned with technical things depending on the matter, and that can also make politics by regulating technical matters. 6 General purpose and special purpose – General, more political organisations are concerned above all with the preservation of peace and security and with other broad purposes such as human rights, the rule of law, and so on. There are administrative organisations with more technical aims for instance economy, social fields, culture, etc. The distinction is somewhat artificial, as: ○ Political organisations with a broad purpose also have powers in more technical fields (e.g. health). ○ The idea that technical fields don’t relate to politics is wrong. Theoretically, everything is of common international concern (e.g. peacekeeping, humanitarian organisations, economic organisations, finance organisations, information society, and sports organisations)..ESTABLISHMENT AND LIQUIDATION OF IOS………………………………………………………… Usually, there’s a multilateral treaty between states to establish an IO, which is governed by international law and creates an international institution with its legal order. Art. 5 VCLT: “The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation”. There's no necessity for a written agreement (e.g. Nordic Council 1952–62). The treaty will regulate purpose and function; the will to establish an IO; membership; the basic structure and bodies; decision-making (including law-making); the international legal personality and representation; and the relation to member states. The constituent instrument is elaborated and adopted as any international treaty: sometimes there’s a requirement of the participation of certain states or ratifications by a certain number of states. With the necessary ratification, there’s the establishment of the IO as an entity with having international legal personality. Then, there’s the capacity or ability to act, which is the election/nomination of the bodies able to voice the organisation’s will. Many constituent instruments don’t allow for reservation. If the treaty is silent, arts. 19-23 VCLT state a notable compatibility with the objects and purposes of the treaty and/or the IO. Art. 20(3) VCLT states that reservation requires the acceptance of the competent body of that organisation: this body is usually the one deciding on membership. The IO is based on a resolution by one or more existing IOs; however, there’s an exception regarding the creation of special courts with their international legal personality by the UN SC. Arts. 31-33 VCLT state the general rules of treaty interpretation. Art. 31(1) VCLT: “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 the light of its object and purpose”. In addition, specific rules were developed in the practice of IOs and courts. It was also considered that constituent instruments of IOs establish an institution and, thus, consider the evolutionary nature of an IO’s constitution. The general rules also apply to national law through: Textual interpretation – Ordinary meaning. Contextual interpretation. Interpretation in good faith. Technological interpretation – It should prevail over other modes of interpretation. The interpretation regarding the organisation’s goals and effectiveness, such as to make these goals possible, is the so-called effet utile doctrine, developed by the ECJ. There’s another doctrine developed by the UN SC, which is the one of implied powers, which states that not all the powers are explicitly mentioned in an IO’’s constitution, but they enable an IO to fulfil its functions effectively. Each body is responsible for the interpretation of the law of an IO: member states have no power to interpret it, since the interpretation by the IO’s bodies prevails, except for acts ultra vires. A body’s interpretation isn’t necessarily authoritative: there must be institutional balance and/or adjudication by judicial bodies. The authoritative interpretation by a body of the IO is exceptionally provided for in a constituent instrument: in such cases, the interpretation of that body is authoritative. The settlement of interpretation disputes is politically within a body applying a provision, sometimes with adjudication (e.g. in the EU), and a legal opinion (e.g. the one of the ECJ or the ICJ). Usually, IOs are established permanently: it’s very unlikely that there are rules on the dissolution of an organisation or that there are dissolutions at all. Rather exceptional is either complete dissolution (e.g. 7 WAPA, COMECON) or transfer of assets and activities to another organisation (e.g. from the League of Nations to the UN). Dissolution with the transfer of activities and/or assets to another organisation is: Replacement of an IO by another one – A is replaced by B. Absorption of an IO by another one – A is absorbed by B. The merger of IOs to establish a new IO – A and B decide to merge and form C. Separation of a body to become an independent IO. Transfer of specific functions. Separation and transfer are special cases, which don’t imply a dissolution. There are two issues: the liquidation of an IO in case of termination without succession, and the succession of an IO by another IO. Usually, the constituent instruments of IOs do not contain provisions referring to the dissolution of an organisation: an exception is the World Bank Agreement (art. VI(5)). Absent explicit regulations: Actus contrarius by the member state. Dissolution by the decision of the highest representative body. Desuetudo in case there are no more elected bodies and no activities. There’s no automatic succession and there are no clear rules: the consent-based regulations are important. There must be an agreement and/or resolutions of the bodies of the involved IOs. The acceptance by the member states can be either explicit or implicit: the acceptance by the successor organisation of the transfer of function is an implied power. Sometimes amendments to the successor IO’s constituent instrument are necessary. The League of Nations decided that it ceased to exist after it had transferred some of its functions to the UN and its assets had been taken over by it. There’s one type of organisation, however, that foresees rules that need to be respected in case of dissolution: they are the international development banks. The functions of the League of Nations were taken over by resolutions of the UN GA. Both organisations concluded the treaty regarding the remaining assets..LEGAL STATUS OF IOS…………………………………………………………………………………… According to the definition, IOs are subject to international law and possess a legal personality: they are independent of the international status of member states. In international law, IOs are partial and only have a partial personality, whilst only states can have all possible rights and duties. What is the case concerning third parties? On the international level, there’s the basis of the international legal personality, which is the will of the founders: the personality is always opposable to the founder and the member states. The UN has an objective international personality, according to the ICJ opinion “Reparation for Injuries Suffered in the Service of the United Nations” (1949). According to the principle of res inter alios acta, there’s uncertainty as to the dependence on recognition by third non-member states: states and other IOs usually don’t have any reason to deny the international legal personality of an IO; however, there’s no obligation to recognise. At the domestic level, legal personality is often regulated in special agreements such as those regulating the privileges and immunities of an IO. Without regulation, there’s a recognition necessary for an IO to enable it to discharge its functions. In non-member states, courts often refer to the conflict-of-law rules comparable to foreign corporations; usually, it’s not a problem in practice. IOs are subjects having rights and duties and have international legal personality, which may refer to the international plane and the dimension of domestic law. Legal personality in international law is the basis of the IO’s constitution: it restricts those rights and duties that an IO may have (e.g. not sovereignty). Legal personality is functionally limited to what is suitable for an IO to pursue its goals; different to States, which have unlimited legal personality. However, in practice, legal personality is broadly defined as effet utile, implied powers, and inherent powers. Legal personality includes the capacity to act. In English there is no clear distinction between legal personality/capacity in general and capacity to act in a specific case: however, these are two different concepts. An IO is only able to act if and when the bodies empowered to represent the organisation and to assume concrete rights and duties are duly staffed. Inter alia, there are two consequences of the international legal personality: the ability to enter into international legal obligations, and the international liability. 8 Treaty-making power is sometimes explicitly regulated in the IO’s constitution: the treaties concluded by IOs are called headquarters and immunities. Body vested with the treaty-making power: this is per the rules of the IO. Usually, only the IO is bound by an agreement and not the member states; however, there’s an exception, which is the mixed agreements of the EU. There’s a limit to the treaty-making power: the subject matter of the treaty must fall into the overall powers of the IO, otherwise, there’s the ultra vires act. A well-established rule is that IOs may claim rights and claim compensation for damage suffered due to wrongful acts; what about an IO’s liability for unlawful conduct? There are three rules: The constituent instruments do not contain any provisions as to the IO’s international liability. The general rule of international law is that the liability of IOs for illegal international acts is a consequence of their international legal personality. Usually, there’s no subsidiary liability of member states. The IO’s legal order, the domestic law of a state, and the international legal norms may be infringed by an IO’s conduct. The acts violating the IO’s legal order are: Very far-reaching non-contractual liability in the framework of the EU because of the impact on individuals. Often rules about the IO’s staff. Otherwise rather rare liability. Generally, liability for torts and contracts (e.g. non-performance) is a consequence of an IO’s legal personality in the domestic legal order at hand: the domestic law of the contract applies. Immunities make jurisdiction and enforcement impossible or difficult: alternatively, there are dispute-resolution mechanisms. Some agreements contain clauses with a waiver of an IO’s immunity, but usually, IOs comply with the obligation to compensate. Three acts breach international law: ILC Draft articles on the responsibility of international organisations (2011) (DARIO). International legal responsibility of IOs for wrongful acts as a generally accepted rule (art. 3 DARIO). Rules governing State responsibility apply to IOs with the necessary modifications. There are two elements to breaching international law: the breach of an international obligation (e.g. art. 4(b) DARIO) and the attribution of the breach to the IO (art. 4(a) DARIO). There’s no responsibility for lawful but harmful acts (e.g. UN peace enforcement). Is there co-responsibility or subsidiary responsibility of member States? Usually not, however, there could be an illegal act committed by an IO and a State together (art. 14 DARIO). Analogous to States, the functions of an IO require privileges and immunities of the organisation and its representatives. It’s necessary to secure the independence of the IO from member states. The IO itself and its staff/representative are entitled to protection. The legal basis for it is the IO’s constituent instrument (e.g. art. 105 UN Charter), the separate agreements on privileges and immunities, and the headquarters agreements. The obliged parties are the members of the IO as part of the membership duties and the non-members, but only based on a separate treaty/agreement. The only exception is the UN, because of its objective international legal personality. Immunity is absolute. There are two types of immunity: Absolute immunity from jurisdiction to protect an IO against any form of legal process in all its activities – National courts shouldn’t judge based on their national laws the legality of an IO’s conduct. From absolute to relative immunity? Conduct iure gestionis and iure imperii. Immunity can be waived by the IO. Immunity from execution to protect the property and the assets of an IO – It’s independent of immunity from jurisdiction. It can be waived, but only explicitly. Moreover, de facto, IOs comply with judgments. There are also some privileges: Inviolability of the premises and archives – Authorities of the host state may not enter the premises: the host state is obliged to protect the premises. However, the laws of the host state apply (e.g. criminal law etc). The premises shouldn’t become a place of asylum for criminals. There could be the inviolability of archives and other documents secures the good functioning of the IO (e.g. confidentiality, decision-making) 9 Currency and fiscal privileges (e.g. no direct taxation, freedom of transfer, custom duties) – There’s no exemption from charges for public utility services. Freedom of communication – It refers to the organisation, its staff, and the member states’ representatives. The privileges and immunities of member representatives are similar to those accorded to diplomats and consular staff. However, the functional necessity is more important and restricting the extent of the privileges and immunities (e.g. convention of 1975, but it wasn’t ratified by important host States). The features are accredited to the IO, not to a State, that there’s no formal agreement by the host State is required, and that however, agreement by the sending State, the host State, and the IO. There’s no possibility to declare a person as a persona non grata, and also persons from non-recognised States. The host state has to protect. There’s the possibility and obligation to waive immunity under certain circumstances. The privileges and immunity are also for representatives without government affiliation, such as persons invited by the IO as observers. The officials of the IO are the chief administrative officer (e.g. a Secretary-General) and other high officials, who have full diplomatic immunity. All others have immunity only for official acts: it’s up to the SG to decide whether certain conduct is official or private. They also have immunity from taxation on salaries, including the prohibition to freeze the salary. The privileges and immunities are functional in nature: there’s the obligation to waive when this doesn’t adversely affect the interests of the IO; usually, the SG decides on a waiver. They are bound by the laws of the host state, however, the persona non grata principle doesn’t apply. Usually, the privileges and immunities may also be invoked against the State of origin of the official. Other persons enjoy privileges and immunities, depending on the respective contractual framework: they are experts, members of the armed forces (usually jurisdiction of the State providing forces), and holders of judicial offices (e.g. attorneys)..MEMBERSHIP AND PARTICIPATION IN IOS………………………………………………………….. Membership is the closest connection between a national state and the organisation. Usually, there’s no difference between these types of members: they are all treated in the same way according to the rules of the organisation. There’s one organisation that treats the founding members of it differently: it’s the UN. Association means that a state takes part in the decision-making process without being a full member: it depends on the constituent treaty of the organisation to what extent an associated member can take part in the decision-making process and what legal effects the organisation can take on them (e.g. EU has a lot of associated treaties with non-member states, and NATO which has a lot of members of under the so-called Partnership for Peace). Sometimes it’s a precondition (e.g. art. 4 UN Charter) to becoming a member that states need to be familiar with how the organisation works internally. The condition to become a member depends on the organisation: sometimes membership is open to a state, but also IOs can become members of another IOs. Being a member of an IO is important for newly created states (the best thing is to become a UN member because it will be recognised as a state and all members of the UN must acknowledge the boundaries of other states). Usually, there’s no entitlement to become a member, but there are some limitations to states of a certain region (e.g. European states). Sometimes specific requirements exclude certain categories of states and/or some subjects of international law. The admission is decided by political bodies, usually the GA, sometimes based on a recommendation of the executive body (e.g. concerning the UN, based on the recommendation of the SC). Once the state is a member, it has to comply with the rules of the organisation: there’s no difference between a new member and a founding member. Members have voting rights, and the right to represent themselves in the organisation (e.g. states can request financial assistance under the IMF Agreement). Members also must observe the IO’s laws and cooperate in enforcing its decisions, and to pay membership fees and other financial obligations. What happens if a member state doesn’t comply with the obligation? In such a case, depending on the rule set out in the charter, a suspension can be applied, which could be partial. Art. 5 UN Charter: “A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council”. In the case of the IMF and World Bank, if a state doesn’t pay its membership, it has no right to financial support (e.g. art. 19 UN Charter 10 states the sanction for non-payment of the membership fee). There are also more subtle ways to suspend membership (e.g. South Africa during the apartheid regime: a majority of the GA wasn’t ok with the situation and didn’t issue the passes for the South African representatives to enter into the UN building). As a member, a state can get out of the organisation either by withdrawal or by being expelled (e.g. Brexit with the withdrawal of the UK from the EU, and Russia’s withdrawal from the CoE to pre-empt its expulsion). Many IOs regulate withdrawal/termination and others don’t (e.g. the UN). There are different conditions for the exercise of the right to withdraw, particularly complicated with financial institutions (IBRD). Art. 56 VCLT states that if there’s no provision on withdrawal, a latter is only possible if it’s established that the parties intended to admit it or if this right may be implied by the nature of the treaty. Generally, mere silence doesn’t preclude a right to withdraw from an IO. The prevailing opinion from scholars is to regard expulsion without basis in an IO’s constitution as illegal; counter opinion: expulsion as a legitimate countermeasure in case of a persistent, grave violation of membership duties (implied power). Art. 6 UN Charter: “A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organisation by the General Assembly upon the recommendation of the Security Council”. The main problem is that expelling a member means losing complete control over it: in political terms, this isn’t always desirable. However, expulsion happens rarely (e.g., Cuba was expelled from the OAS). On the 25th of February 2022, there was the suspension of Russia from membership in the CoE in reaction to its invasion of Ukraine. On the 15th of March 2022, Russia formally announced its withdrawal from the organisation, seeking to pre-empt a vote on expulsion: its membershiè was due to be terminated on the 31st of December 2022. However, a day later, the Committee of Ministers voted to expel Russia from the CoE immediately: there was no basis in the CoE’s statute. State succession in membership is a complicated topic and, usually, of a political nature. What is relevant are the IO’s rules; however, according to the VCLT, there must be continuity even though it hasn’t yet become a rule of customary international law. Rather, a certain presumption of continuity is required for multilateral agreements. As to the constitutions of IOs, the admission procedure to check compliance with the obligation and the IO’s basic rules can lead to a presumption of discontinuity. The rules of identity and continuity of states are separation of state (e.g. North Korea and South Korea), dissolution of states (e.g. Soviet Union), merger of states (e.g. Germany, which was formed by the merger of the former democratic republic of Germany and the republic of Germany), the change of territory, government, name and/or constitution (e.g. former Czech Republic, Turkey)..STRUCTURE, BODIES, AND DECISION-MAKING PROCESS OF IOS…………………………….. There’s a considerable variety of structures of IOs, which also depends on their scope (e.g. UN and IBDR). Each IO is autonomous and embodies a particular structure. The structure is state-dependent, which means that the structure and process rely on the member state and not the organisation: the state is represented in the organisation by its government. Generally, the governments have an impact: the term intergovernmental describes the nature of traditional IOs. There are also rules on the relation between the organisation and the member states but also rules between the bodies and the staff, or between the bodies and outside persons. The will of an IO is hopefully more than the simple computation of all the wills of each member state and, thus, more than the least common denominator. Usually, there are the plenary body, the executive body, and the administrative body. Among them, there’s the need to find a balance between them to be able to carry out the purposes of the organisation. Plenary body – It’s the general assembly. All members are represented and have an equal say: it usually has the function of having all states together being able to express their own will and all are given the same rights (they’re still sovereign). It’s the most representative body and, therefore, the highest body. This body is entrusted with fundamental structural decisions: it decides on the policies of the organisation, sets out its rules, and elects the office holder of other bodies. The advantage is that all members are allowed to participate: this shuts down the negotiation process. The disadvantage is that it’s too large to be efficient, thus, there was the creation of committees, which are subsidiary and auxiliary bodies, that prepare the decisions of the GA. 11 Executive body – It was created for efficiency reasons and to steer and direct the IO (e.g. UN SC, European Commission, and Executive Board of the IMF). It’s the most important non-plenary body. This body varies much between the organisations: sometimes, with it state is allowed to represent its interests (e.g. UN), but not always (e.g. European Commission). Secretariat – It’s the most important administrative body and is usually headed by the secretary general (SG), who also represents the IO externally. It’s primarily responsible for the implementation and monitoring of member states. It gives a face to an IO because it represents the IO’s interests, values, and norms: it’s also considered the civil servant of the IO. It’s usually neutral: the staff is elected based on considerations of equitable geographic representations. According to art. 99 UN Charter, the SG has also, sometimes, political functions. There are also other bodies depending on the purpose of the organisations: Non-plenary bodies (e.g. ECOSOC, and Human Rights Council). Parliaments (e.g. CoE, EU, OSCE) – The nationals of the member states don’t have a say. One way to compensate for this democratic loss is that there is a body within the organisation composed of members of the parliament for the organisation (e.g. Council of Europe). There’s a special case, the EU Parliament, in which people of the member states vote to directly send their parliamentarians there. Expert bodies (e.g. International Law Commission, and Human Rights Committee). International courts (e.g. ICJ, ECtHR, ECJ, ICTY) – They have the power to decide controversies between: ○ Members states or member states and an IO. ○ Bodies of an IO. ○ Individuals or entities and member states. ○ Individuals or entities and an IO. Sometimes, they have the power to render advisory opinions. There’s an increment in their role and their interpretation of IO’s law. An IO’s constitution (e.g. treaty) forms the legal basis for its bodies: in case new bodies are created, there must be an amendment of these treaties. Moreover, bodies can also create subsidiary bodies. Decision-making can be taken in three different ways: Unanimity – All members have to agree to make the decision effective and binding. Most organisations don’t allow unanimity, but some of them require it (e.g. the EU for the access of new members or the NATO). Unanimity is sometimes appropriate in regional organisations; globally, however, IOs couldn’t function efficiently: unanimity (e.g. NATO, CoE), quasi-unanimity (e.g. OSCE), and some organisations recognise abstention, which doesn’t mean objection against a decision. Majority – It’s usually present in global organisations. The rule is one state one vote; however, the UN SC is an exception. The majority can be: ○ Simple – It requires one more vote than half of the given vote (e.g. 51 votes out of 100). ○ Absolute – It requires more than 50% of all members, irrespective of the number of those voting. ○ Qualified (QM) – It’s the number of votes required in the Council for a decision to be adopted when issues are being debated based on art. 16 TEU and art. 238 TFEU. Under the ordinary legislative procedure, the Council acts by QM, in co-decision with the Parliament. Consensus – There are negotiations until there are no objections. There’s no formal vote, which is a common method because there are better chances for the observance and implementation of the IO’s decisions and policies by the member states. The effects of IO’s decisions depend on the IO’s constitution. They can be internal decisions (e.g. budget, elections) which are usually binding, and external decisions which represent often only recommendations and are non-binding for member states. However, the UN SC resolutions, based on Chapter VII UN Charter, are binding for all member states. Also in supranational organisations, decisions are binding..POWERS OF IOS – EXTERNAL REPRESENTATION…………………………………………………. IOs serve specific purposes and get powers to achieve these purposes. The powers of an IO depend on the regulations in an IO’s constituent instruments, including the interpretation of these regulations by the 12 IO’s bodies. Sometimes, the powers are defined broadly, sometimes rather narrowly. The starting point is the interpretation of the constituent instrument, under the VCLT, and the powers attributed to an organisation in the constituent instrument (e.g. an economic organisation may not go to war). IOs often assume powers not explicitly regulated in the constituent instrument, because explicitly attributed powers don’t suffice to enable an IO to perform properly. IOs are organism and their constitutions are living instruments; thus, a more dynamic interpretation must be given. The doctrine of implied and inherent powers was applied, in origin, in federal states by the US Supreme Court. IOs shall have those powers necessary to guarantee their effet utile: the interpretation serves to guarantee the fullest effect of an IO’s purpose. The way to fill in powers lacking in an IO’s statute is to enable the IO to reach its purpose: it derives from the specific nature of treaties establishing the IOs (constitution-like mode of interpretation). “Powers not expressed cannot be freely implied. Implied powers flow from a grant of express powers, and are limited to those that are ‘necessary’ to the exercise of powers expressly granted” (Dissenting opinion of Judge Green H. Hackworth in the Reparation Case (1949)). “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 duties” (Court’s majority opinion in the Reparation Case (1949)). Generally, powers may be implied if they can be linked to the IO’s purpose. There are tensions between the concept of attributed powers and implied powers. For what concerns attributed powers, there’s the sovereignty-oriented concept based on the founders’ will. The objections against it are that the founders of an IO cannot anticipate all developments, and sometimes an IO needs powers not expressly mentioned in its constituent instrument to perform properly. Once established, organisations possess inherent powers to perform all acts they need to perform to attain their aims because they are inherent to any organisation: as long as acts aren’t prohibited, they’re permissible under the IO’s constituent instrument. Art. 352(1) TFEU: “If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, 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. Where the Council adopts the measures in question in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament”. Acts of an IO and a body of an IO are only valid if they conform with the IO’s laws, hence, if the IO and/or the body has the necessary powers. There are power conflicts between IO’s bodies or an IO and its member states. Usually, there are no rules on how to solve such conflicts; however, there are two exceptions: Authentic interpretation by a supreme body (e.g. GA). Review by courts (e.g. ECJ in the EU) – It’s contested to which extent the ICJ may decide on power conflicts between member states. ○ “The Security Council is […] subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organisation at large, not to mention other specific limitations or those which may derive from the internal division of powers within the Organisation. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law)” (Appeals Chamber of the ICTY (Case IT-94-1-AR 72)). In the absence of any regulations, the following rules apply: Each body decides on its powers (implied powers). There’s a general presumption of the competence of international bodies ○ “[W]hen the Organisation takes action which warrants the assertion what it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such an action is not ultra vires the organisation” (Certain Expenses, ICJ Reports 1962, 168)). An exception is the ultra vires acts, which are clearly outside the scope and/or the purpose of the IO and/or body. However, sometimes it’s difficult to distinguish between implied powers and ultra vires acts. 13 Since IOs are subject to international law, they can act internationally, but who represents an IO internationally? This matter is regulated in the founding treaties, which state that the SG represents them and not the GA. The EU is a special case because representation depends on the subject matter (Commission or Council) and on some areas of EU member states. The treaty-making power is a special case of the power to act and external representation: its extent depends on the founding treaties. Art. 27(2) VCLT: “An international organisation party to a treaty may not invoke the rules of the organisation as justification for its failure to perform the treaty”..THE LAW GOVERNING THE IOS’ ACTIVITIES………………………………………………………… Arts. 31, 32, and 33 VCLT rule the treaty interpretation rules: the convention was signed in 1969, but now all states are considered bound by it since it’s now considered customary. According to an advisory opinion (1941), the organisation can claim reparation not only for the damage caused to itself but also for the damage suffered by the victims/persons entitled through him. According to an advisory opinion (1948), there’s a condition of admission of a state to membership to the UN, which has to be interpreted. A state is composed of people, territory, and power. Moreover, some states recognise countries that others don’t recognise (e.g. Palestine, Kosovo). IOs are based on international law (e.g. treaties, conventions, customary international law), but they also make law: Some of them create bodies through their charters (e.g. SC), and with these bodies, they create practice. The sources of international law are treaties, customs, and jus cogens. The main sources of an IO are: Primary law – It’s the constituent instrument/charter. There are also treaties, which can be interpreted through the doctrine: they only bind states, so whatever organisation that is based on the treaty creates rules and regulations only applicable to those who consider themselves bound by it (e.g. ICC). The primary law is part of general international law. Secondary law – The norms and rules enacted by the bodies of an IO are based on the constituent instrument, whilst resolutions and decisions are made by the IO. It’s based on the primary law, but it’s not part of the general international law. However, some rules of an IO’s can become customary international law. It should always be interpreted in the light of primary law and must conform with it. Primary and secondary law bind the IO’s bodies and the member states, but not third parties (pacta tertiis rule). The practice has become customary international law, which is a repeated practice of rules and laws by states that consider them binding. IOs are subjects of international law, thus, they must observe it, in particular, customary international law and general principles. Moreover, international law supplements or sometimes modifies an IO’s law (e.g. the UN troops are bound by the principles of humanitarian international law, and the EU, although isn’t party to the ECHR, must observe it). There’s a complex interrelation between customary international law (CIL) and the law of IOs: the CIL may modify the rules of the IO (e.g. art. 27(3) UN Charter). Some decisions and resolutions of IOs contribute to the development of general international law, in particular customary law. However, all the laws of an IO need to respect jus cogens. Art. 103 UN Charter: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. UN law takes indirect precedence over the norms of other IOs, and sometimes conflicts are difficult to resolve. The charter regulates the powers and activities of the IO, even though the scope, intensity, and extent of law-making activities vary depending on the IO, in particular, the concrete powers of an IO. All IOs regulate their internal organisation in a binding manner: many IOs enact laws binding for the member states, but only a few IOs enact laws directly applicable to individuals. There are different types of rules: Internal rules – They are rules more on the internal organisation, such as rules of procedure, budget, office, elections, status of staff members, powers of the bodies, and creation of new bodies. Moreover, they are binding. Rules directed at the member states – Making rules that bind member states is an exception. The resolutions of IOs are usually only recommendations and, sometimes, soft law. 14 Amendments to an IO’s constitution – They are usually decided by the plenary body and then ratified by member states. Sometimes, the ratification is by majority or, according to art. 108 UN Charter, another number of member states suffice. Drafting treaties within an IO – It’s a sort of soft-law making; however, ratification by member states is required. Formally, it’s not law-making by an IO. Norms directly binding individuals – Usually, norms are directed at states and require them to implement an IO’s decision, also regarding human rights; they aren’t self-executing and have no immediate effect. Exceptionally, norms are directed at individuals (e.g. the EU and certain decisions of the UN SC): this is a feature of supranationality. The IO has to respect the mandatory international law and the domaine réservé of the state (ultra vires): it means that the IO cannot regulate the domaine reservé of the state. According to art. 2(7) UN Charter, there are two views: Resolutions and decisions of an IO infringing the domaine réservé are null and void. IOs are established to internationalise certain national competencies, thus, the sovereignty of member states plays no role. Some bodies can make authoritative interpretations of treaty provisions (e.g. Executive Board of Directors of the IMF). The interpretation of the internal law of an IO has to consider the hierarchy of norms, secondary law has to be constitutionally interpreted (in light of primary law), and the interpretation has to be based on general international law and the general principles of international law..FUNDING OF IOS…………………………………………………………………………………………… The financial aspects have a central place as they are fundamental for an IO to reach its goals; however, very often, IOs lack the necessary funds to perform their task properly. In a lot of the IO’s decision-making process, the power to pursue can be hostage by the states that finance the organisation. The sources of income are: Annual contributions or membership fees – They are usually based on population and economic strength (national income). Voluntary contributions – They lead to more political influence. Special contributions for specific projects and operations. Payable services (e.g. IMF, World Bank, etc). Sales (e.g. UNICEF cards). WIPO (e.g. fees for registrations of patents, etc). Loans available on the capital markets. EU’s sources (e.g. customs duties, part of the VAT). The typical expenses are the lease of offices, salaries, costs for travel, organisation of conferences, office equipment and infrastructure, publication, communication and IT, and special projects (e.g. peace-keeping, special missions, fact-finding missions, and special envoys). Usually, the plenary body has the competency to decide the budget; however, sometimes concurring powers of the executive body (e.g. UN SC regarding the costs of measures adopted under Chapter VII)..FURTHER ASPECTS………………………………………………………………………………………. The law of an IO is usually only directed at the member states and, thus, not self-executing: it depends on the interpretation of whether a norm is self-executing. Is there a primacy of the law of an IO over national law? There’s a particular situation within the EU, and member states must implement the law of an IO. The implementation is necessary to make an IO’s law effective. The incorporation of international law into national law is very important for the implementation of the IO rules. The constituent instruments of IOs often regulate coercive measures and sanctions against member States that don’t comply with their obligations: in the absence of such regulations, the general international rules of contract law apply in a modified way, in particular the VCLT. Generally, collective measures are more efficient than measures of single States. The violation of an IO’s constitution is used as countermeasures by the IO and other member states designed to frustrate the violating member state’s benefits of membership, but the constitution remains in force. Usually, there are: 15 Non-military sanctions (e.g. cessation of payment) – It’s the mobilisation of public opinion and the suspension of membership rights according to art. 19 UN Charter. The last resort is the expulsion. Particularly important are the non-military sanctions of the UN SC. Military sanctions – They are issued by the UN SC or for self-defence. The general rule is that a state cannot use force except if it wants to defend itself or if a resolution of the Security Council has authorised it: this is the principle of the non-use force. The international civil service is comparable to the national civil service: the difference is the multinational composition and divided loyalties. The appointment is by or on behalf of the Secretary-General (the consent of the state of origin isn’t required), who is usually elected by the GA together with the Assistant SGs. usually, it’s composed of all member states and an equitable representation of the world regions. Obligations – They are regulated in staff regulation and rules. They are the duty of loyalty, independence, and confidentiality. There’s no acceptance of instruction from third parties, in particular from the state of origin. Independence of staff members – Staff members are independent from the member states and, in particular, from their state of origin. This is fundamental for the proper functioning of an IO. The applicable law for the officials is usually based on a contract: this means that national law doesn’t apply since each IO has its staff regulation. If they don’t suffice, the general principles of administrative law apply. National courts don’t give legal protection, but by staff committees, ombudsman, advisory appeal boards, appeals to the SG, and special administrative tribunals..THE UNITED NATIONS……………………………………………………………………………………...HISTORICAL DEVELOPMENT……………………………………………………………………………. From today’s perspective, all states are equal and they are free. For a legal order, that makes it difficult to establish and enforce rules: in a national legal order, some laws enforce the rules if necessary by police force. They aren’t present in a legal order where everyone is supposed to be equal and to be completely sovereign in their decisions. What is needed to have a basic state of peace and compliance is an institution that somewhat looks at the enforcement rules and, especially, rules regarding peace, war, and stability in general. One way to create a stable environment was to ally: this is a concept that was already known in antiquity by ancient Greek city-states. They allied to promote a goal (e.g. for economic reasons) or to defend the alliance (e.g. NATO). The idea is that this should have a deterrent effect on potential aggressors, so, that they don’t attack the alliance or any other thing. Nations formed a collective security arrangement, in which the participating states cooperate collectively to provide security for all by their common actions against any states within or outside the security arrangement that might challenge the existing order by using force. Such a concept is more ambitious than systems of security alliance or collective defence in that they seek to address a wide range of possible security threats and provide for dispute-settlement mechanisms: members have to give up part of their sovereignty and institutions have the power to discipline them. It was achieved by setting up an international cooperative organisation under international law that gives rise to a form of international collective governance, albeit limited in scope and effectiveness. The collective security organisation then becomes an arena for diplomacy, balance of power, and exercise of soft power: the use of hard power by states, unless legitimised by the collective security organisation, is considered illegitimate, reprehensible, and calls for remediation of some kind. To achieve peace and stability, those systems provide also mandatory dispute settlement mechanisms. Collective security requires different preconditions: Limits to sovereignty, in particular as to national defence. Legal limitations of the use of military force. The common will to identify an aggressor and to enforce, also by military means, the limitations of the use of force (collective sanctions). An adequate institutional frame, i.e. an organisation. Dispute-settlement mechanisms. Usually, such an arrangement must ban, in principle, the use of military force. Instead, states have to observe some dispute-settlement mechanisms: the organisation concerning collective security provides a certain balance of power between members themselves, institutions and the members (use of soft powers). 16 From a Western perspective, international law comes from the Peace of Westphalia (1648), in which the idea of a sovereign national state was born. States have tried to maintain peace and avoid wars, and several concepts were discussed regarding the institution which had to be set up (the idea of setting up to guarantee this principle). At the end of the 18th century, Immanuel Kant had the idea that peace should be guaranteed by an institution (since at that time states could do whatever they wanted): the civilised states observed some rules of law also in international relations. According to him, one means to get that result is to set up a government; however, he was aware that that wasn’t possible, so, he proposed to set up bodies that guarantee peace (his idea was on European and Christian states). The main trends in the 19th century, which was a sovereignty-oriented time, were rather against collective security and allowed for wars: there was social cooperation. Nonetheless, cooperation remained purely technical since no institution would have been entrusted with political powers (e.g. war and peace): what there was was a club of the big powers of Europe; however, there was no permanent institution. As a corollary to sovereignty, unanimity was required: some states were more equal than others. Another corollary was the power of the state or the ability of the state to go freely to war: this didn’t work and was seen during WW1. There were already concepts of going one step further to try to avoid future war: that’s why in the peace treaty after WW1, a new institution was created, which was the League of Nations. The preamble of the League of Nations: “THE HIGH CONTRACTING PARTIES, In order to promote international co-operation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, […]”. The main goals were the peaceful settlement of the dispute settlements and collective security. To pursue those goals, the institution was provided with three organs: Assembly – It was the plenary body representing all members. It was concerned with any matters: it enacted legislation for the institution, decided on the budget, and which states could be members. It met once a year. Council – It was an executive body composed of eight members, five of which were permanent: the others were elected from time to time. Secretariat – It was the staff that prepared the work of the institution and organised the assemblies and conferences. In addition, there was also the Permanent Court of International Justice, which wasn’t formally part of the institution, thus independent, and members weren’t required to be part of it. There was a problem between the assembly and the council because both of them were competent on all matters concerning the institution: the council could only decide unanimously and its decisions weren’t binding. The reason for that was that there was a belief that to have a universal institution that decided, the decisions should have a moral value even though not binding. Art. 5 LoN Covenant: “Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or the Council shall require the agreement of all the Members of the League represented at the meeting. All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting”. The League of Nations set up a system of peaceful management of disputes; however, it didn’t ban wars but provided for procedural rules to be observed before allowing them to go to war. Art. 12 LoN Covenant: “The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to the enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case under this Article, the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute”. Art. 13 LoN Covenant: “The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or 17 judicial settlement. […] For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them”. Art. 15 LoN Covenant: “If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. […] The Council shall endeavour to effect a settlement of the dispute, and if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. […] If the dispute is not thus settled, the Council either unanimously or by a majority vote shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. […] If a report by the Council is unanimously agreed to by the members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report”. Art. 16 LoN Covenant: “Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. […] It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League. The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which are taken under this Article, in order to minimise the loss and inconvenience resulting from the above measures, and that they will mutually support one another in resisting any special measures aimed at one of their number by the covenant-breaking State. […]”. The League of Nations was innovative. Nevertheless, it failed after WW2 and there were several reasons or flaws for it: It wasn’t realistic to wait 3 months before going to war. Limited membership since it was confined to European states, Canada, few American, African and Asian states. The US didn’t become a member. Withdrawal of important members such as Germany, Italy and the USSR after the LoN denied permission to be militarised by themselves. Unanimity requirement which made it almost impossible to decide on certain controversial matters. The council was not permanently located in Geneva. The assembly and the council have an unclear distribution of powers. Nonetheless, the League of Nations did good things: it made a great contribution to economics, social, health, labour, and other technical areas, in particular through its special organisations and agencies. It also created the mandate system, which applied to the former colonies of the German Empire and the territories of the former Ottoman Empire. The League of Nations distinguished three types of mandates: Mandate A – It applied to free colonies (e.g. Syria, Lebanon) of developed states, which were provisionally states not yet acknowledged. Mandate B – It applied to former colonies of Germany in Africa (e.g. Ruanda and Cameroon), which were regarded as being far from being governed by themselves. Mandate C – It applied to further territories from Europe (e.g. Samoa), which were regarded as not civilised at all. The mandatory powers were accountable to the League of Nations, were controlled by the organisation’s bodies, and had regularly reported to them. This system survived under the UN at the beginning of its institution. Another achievement of the League of Nations was the minority protection, which was built on bilateral and multilateral treaties, mostly concluded between the victorious Allied Powers and States newly established as the result of the dismemberment of the Austrian and the Ottoman Empires. The status of 18 minorities was an international concern because their discrimination could become a potential source of regional conflicts. The observance and implementation of the minority treaties were controlled by the bodies of the League of Nations because both individuals and states could file inquiries to the institution to see how minorities were treated..THE ESTABLISHMENT OF THE UNITED NATIONS…………………………………………………... The idea of setting up an institution came during WW2 with some important international treaties: Atlantic Charter (1941) – It was between the US and the UK which wanted to establish an institution with a wider and permanent system of general security: the system of the LoN should be enhanced. Joint Declaration by the UN (1942) – Twenty-six governments joined the Atlantic Charter signing this declaration. Moscow Conference (1943) – During this conference it was decided that the LoN should be replaced. Dumbarton Oaks Conference (1944) and Jalta Conference (1945). Founding Conference in San Francisco (1945) – The UN was created. The UN is the first institution that derived its legitimacy from almost universal membership since its functions are wider than the ones of the League of Nations. Its competencies have broadened and deepened over the years. The UN has some basic features such as the prohibition of the use of force, the world organisation with a comprehensive purpose, universality as a goal, a more effective organisation, an improvement of the system of collective security with a more elaborate system of collective security, binding decisions of the SC by a qualified majority (binding sanctions), and each member State is an eo ipso member of the ICJ Statute. During the Cold War, there were many vetoes even though they were boycotted by the USSR: it was more successful regarding economy, development, and human rights. During the period of Decolonisation, under the auspices of the UN, there were many important declarations by the GA, in particular the one in 1960. There was also the creation of more than 100 states and increasing domination in the GA and other bodies by third-world countries; development was an increasingly important issue. The Suez Crisis and the operation in Congo were the origins of the PKOs (blue helmets) and peace enforcement, without explicit basis in the UN Charter (implied powers). There was no impact of the UN and the SC in other crises (e.g. Cuba crisis of 1960-1962). During the domination of the North-South problem, there was only a limited impact of the UN in many conflicts, such as in Vietnam or the Middle East. However, attempts by third-world countries to change the international agenda (new world economy, economic self-determination); and establishment of the UN Human Rights Covenants (1966). At the end of the Cold War, there was the breakdown of communism in Eastern Europe: this brought the revival of the SC and the settlement of many old regional conflicts (so-called proxy wars). Iraq’s invasion and annexation of Kuwait was a turning point for the conflict management by the SC: this brought also involvement in many national conflicts (e.g. Yugoslavia). During this period, there was also a changing face of peace-keeping and a much broader understanding of peace-keeping, including peace enforcement, and post-conflict peacebuilding (up to 40 new PKOs in regional conflicts). At the end of the 20th century and the beginning of the 21st, there were achievements and set-back at the same time: improvements to human rights (e.g. Statute of Rome, Human Rights Council), sustainable development, environmental issues, set-backs due to military unilateralism (e.g. Kosovo, Afghanistan, Iraq), many activities to combat terrorism, and reform of the UN as an organisation, of PKOs, and conflict-management activities..PURPOSES AND PRINCIPLES OF THE UNITED NATIONS…………………………………………. The charter is the constituent instrument and multilateral treaty between states to set up an organisation for an unlimited time: the charter binds only because states are part of it. It’s much more detailed than the League of Nations Covenant. Some of its provisions present mandatory law (ius cogens): parties cannot deviate from law, even if they agree since it’s impossible to derogate (e.g. reintroduction of slavery is prohibited). States that didn’t join (e.g. Vatican City) aren’t bound by it. The UN remains a political organisation: it simply puts a forum for debate and it’s not a supranational organisation (e.g. EU), because there’s a staff that enforces decisions. The UN cannot make regulations that are directly applied within the member states for nationals. There is again an exception for that: certain decisions of the Security Council, are sometimes directed at people of so-called terrorists. 19 The preamble of the UN Charter: “WE THE PEOPLES OF THE UNITED NATIONS, DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, […]”. It’s different from the one of the League of Nations since it didn’t have human rights. It’s an auxiliary instrument under the Vienna Convention of the Law of Treaties. Only arts. 108 and 109 have been amended and there were only four amendments to the UN Charter. Art. 108 states the 2/3 majority of the member states in the GA, ratification by 2/3 of the member states, including the P5. Art. 109 UN Charter: “A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference”. A general conference never took place; however, amendments to the UN Charter remain an issue as part of the UN reforms. There’s an increasing need to adapt the UN Charter to nowadays’ practice. Still, the UN Charter is quite a flexible instrument. Art. 1 UN Charter: “(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 breach of the peace; (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; (3) To achieve international co-operation 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 (4) To be a centre for harmonising the actions of nations in the attainment of these common ends”. The legitimacy of the UN is derived from its member states; however, it has an extremely broad purpose. The scope of activities has very much expanded, with moral force and moral status. The Charter is a legal basis since it’s the constitution of the state-based international system. This article states the four aims of the UN: Maintain international peace and security – It’s the main purpose and is closely intertwined with the prohibition to use force under art. 2(4) UN Charter. The UN Chapters VI and VII contain the powers to take preventive measures: it’s up to the SC to assess whether the situation concerns peace and security. There’s a positive understanding of peace, including the prerequisites for sustainable peace, and not only the absence of war between states. Develop friendly relations among nations – The better the relations are, the more stable the world is: they are supposed to build a certain trust level to avoid wars. The principle of equal rights and self-determination of people is the basis process of decolonisation. Achieve international cooperation – The more people are reliant on others in terms of economy, culture, human rights, etc, the less a war can start: it’s an extremely broad aim. International centre – It has an obvious purpose. Art. 1 UN Charter shows that the bodies of the UN may deal with all international issues and that they can internationalise what they want (interdependences → internationalisation → increasing powers for the UN). There are no clear limits to the powers of the UN: it’s rather easy based on effet utile and implied powers to interpret the powers of the UN. Art. 1 UN Charter doesn’t establish enforceable rights and duties of the UN and/or the member States. The binding obligations derived from art. 1 are set in art. 2. 20 Art. 2 UN Charter: “The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. (1) The Organisation is based on the principle of the sovereign equality of all its Members. (2) All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace security, and justice, are not endangered. (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (5) All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. (6) The Organisation shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. (7) Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter, but this principle shall not prejudice the application of enforcement measures under Chapter Vll”. The addresses are the member states but sometimes also the UN. It contains enforceable rights and duties: most of them are customary international law, and some of them ius cogens. Sovereign equality and fulfilment of obligations: Principle of sovereign equality (§1)– The concept of sovereignty has two basic sides, namely that states can do whatever they want in principle and that they are equal. It has also a different aspect: sovereignty also applies within a state. A member state in its territory is the only authority and, in essence, can decide on its own as part of the sovereignty what political system it wants to establish and maintain. Sovereignty also means that other states need to respect that principle. Fulfilment of obligations (§2) – The second paragraph of art. 2 sets out something which is quite self-explanatory: by being a pa

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