Public International Law Lecture 4 PDF

2024-2025 David den Dunnen [email protected] International Bachelor of L...

2024-2025 David den Dunnen [email protected] International Bachelor of Law Programme Public International Law Lecture #4: International Organizations’ Membership, Powers and Decision-making Procedures  Agenda 1. Membership in an International Organization 2. Powers of IOs 3. Decision-making in IOs 2 IO Membership, Powers, Decision-making  Questions about the law governing international organizations? IO Membership, Powers, Decision-making 3  1. Membership in an IO N.B. only full membership of states will be discussed − Workshop: Taiwan’s position at the United Nations 4 IO Membership, Powers, Decision-making  1. Membership in an IO 2 types of Member States (MSs): − Founders − States acceding to the IO As such there is no legal distinction, although acceding states are subject to the admission criteria set by the founders… IO Membership, Powers, Decision-making 5 1. Membership in an IO If a state becomes member, it will enjoy − Full rights o Voting; privileges and immunities… − Full duties o Financial contributions; adherence to IO’s rules and decisions… IO Membership, Powers, Decision-making 6  1. Membership in an IO Development of UN membership: https://www.un.org/en/about- us/growth-in-un-membership IO Membership, Powers, Decision-making 7 1. Membership in an IO Joining the club – acquisition of membership Who can join the IO Under what conditions Following which procedure … is provided by the constituent instrument IO Membership, Powers, Decision-making 8  1. Membership in an IO Accession → constituent instrument − United Nations: art. 4 Charter o Para 2: General Assembly decides  Decision-making: art. 18(2): 2/3rd majority o Para 2: on recommendation of the Security Council  Decision-making: art. 27(3): veto applies! o What if UNSC does not recommend? Can UNGA admit state?  No: decision-making on accession is a balance between UNGA and UNSC: UNGA may not bypass UNSC ICJ ‘Second Admissions’ Adv. Op. (1950) IO Membership, Powers, Decision-making 9  1. Membership in an IO − Art. 4(1) UNC lists: o Cumulative conditions o Shortly after establishment of UN, Cold War started  States from one alliance were prevented from joining UN due to P5 veto from the other alliance  So states were recommen- ded for membership in ‘package deal’ o What did ICJ advise in ‘First Admissions’ Adv. Op. (1948)? Art. 4(1) UNC lists exhaustive conditions  No conditions may be added 10 IO Membership, Powers, Decision-making 1. Membership in an IO o U.S. and USSR did not take ICJ’s advice  They struck a deal in 1955: en bloc admission of 16 states…! o Conclusion: though governed by law, admission of a new member is a highly political act IO Membership, Powers, Decision-making 11 1. Membership in an IO When things don’t run smoothly… Option: suspension of membership rights − Temporary measure − Does not free MS from its obligations! − UN: o Art. 5 UNC o Art. 19 UNC IO Membership, Powers, Decision-making 12 IO Membership, Powers, Decision-making 2. Powers of IOs Could the World Health Organization ban all smoking in the world? Could UNGA establish internal tribunal to decide on labour disputes of UN employees? − These are questions as to WHO’s and UNGA’s respective powers ICJ ‘Reparations’ Adv. Op. (1949): IO’s international legal personality is inferred from its powers, purposes and practice 13  [T]he Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. ICJ, ‘Reparations’ Adv. Op. (1949) 14 IO Membership, Powers, Decision-making  2. Powers of IOs There’s link with the founders’ intentions - States created UN through a treaty as a separate legal person, possessing a ‘will’ distinct from them - Legal personality is indispensable for the UN to achieve its purposes: an IO needs to serve the members’ common interests, and ‘the greater good.’ This cannot be achieved by UN being a mere extension of state(s) - So IO’s legal personality has to come with certain capacity, or powers ICJ reasoning criticized as circular reasoning IO needs its own powers in order to operate, to carry out its functions, and to attain its purposes IO Membership, Powers, Decision-making 15 2. Powers of IOs Attributed powers Powers granted by the MSs to the IO − Will of IO is directly derivative from that of its MSs IOs are unlike states that have general competence. IOs are only competent to act as far as powers have been attributed to them IO Membership, Powers, Decision-making 16  2. Powers of IOs Powers of IO are limited to whatever is necessary to perform the functions as defined by its founders in its constituent instrument: ‘functional necessity.’ IO’s powers stretch far enough to include all acts indispensable for the performance of its functions ICJ ‘WHO Nuclear Weapons’ Adv. Op. (1996) − IOs are governed by the principle of speciality: IO Membership, Powers, Decision-making 17  They are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them. ICJ ‘WHO Nuclear Weapons’ Adv. Op. (1996) 18 IO Membership, Powers, Decision-making 2. Powers of IOs As the MSs determine the powers of the IO, IO does not have ‘compétence de la compétence’: they are not competent to establish or determine their own powers Will of the founders provides for the IO’s 1. Express powers, and 2. Implied powers IO Membership, Powers, Decision-making 19 2. Powers of IOs 1. Express powers are those explicitly provided in the IO’s constituent instrument − UN? IO Membership, Powers, Decision-making 20  2. Implied powers: powers the IO has without them being expressly provided for in the constituent instrument − Why would (or should) an IO have such powers? 2. Powers of IOs o Constituent instrument cannot possibly exhaustively list all powers IO will have for the duration of its existence o Developments over time require IO to take action not foreseen by its founders − So IO has certain implied powers because it needs them in order to carry out its tasks IO Membership, Powers, Decision-making 21  Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. ICJ, ‘Reparations’ Adv. Op. (1949) 22 IO Membership, Powers, Decision-making  2. Powers of IOs Implied powers confirmed by ICJ ‘Effect of Awards’ Adv. Op. (1954) Implied powers are implied in IO’s constituent instrument Implied powers are to give effect to what founders agreed to by establishing the IO and becoming its MSs − The interpretation of what is ‘necessary’ to achieve IO’s functions may differ. So IO’s judicial organ often plays important role in determining it Implied powers are not permitted to change/adjust constituent instrument or add obligations to IO or its MSs 23 IO Membership, Powers, Decision-making  2. Powers of IOs Delegated powers Powers IOs or their principal organs grant to subsidiary organs − Delegated powers have no direct link to the will of the MSs It is generally permitted for an IO to create subsidiary organs to which it may delegate part of its functions IO Membership, Powers, Decision-making 24 2. Powers of IOs Restrictions: Such new organs cannot increase the obligations of the IO or its MSs An IO cannot delegate more powers than it has itself IO cannot delegate away its responsibility for actions of subsidiary organ for delegated powers Subsidiary organs themselves are typically not permitted to create subsidiary organs to them In general, delegation may be retracted and subsidiary organs be dissolved by IO that established them IO Membership, Powers, Decision-making 25 2. Powers of IOs Inherent powers Powers by the nature of being an IO Would IOs have inherent powers? ‘Reparations’ took it beyond the Permanent Court of International Justice’s (League of Nations) position: IOs don’t only have powers implied by the constituent instrument as expression of the founders’ will IO Membership, Powers, Decision-making 26 2. Powers of IOs IOs also have powers ‘by their very nature,’ as they are essential to the performance of their duties. ‘Reparations’: the nature of subjects of law depends on the needs of the community Still, throughout ‘Reparations’ ICJ related powers back to what UNC intends: “… the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter” → the connection to the founders’ will isn’t severed, as implied powers arise only by necessary implication in the constituent instrument IO Membership, Powers, Decision-making 27  2. Powers of IOs Risk: there is a thin line between IO’s inherent powers and mission creep ICJ’s ‘Certain Expenses’ Adv. Op. (1962) shows more clearly that the UN has the capacity to exercise significant powers that are not directly dependent on the intent of its founders, but are accorded to it as independent international legal person − Some argue that as long as UNC does not prohibit certain functions, UN possesses these powers ‘WHO Nuclear Weapons’ contrasts the broader functions and powers of UNGA with the narrower ones of WHO → principle of speciality IO Membership, Powers, Decision-making 28  2. Powers of IOs The legality of IO actions, and ‘ultra vires’ Each UN body interprets such parts of UNC as are applicable to its functions: ‘auto- interpretation’ There is a presumption of legality and validity of IOs’ acts IO Membership, Powers, Decision-making 29  When the organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the organization. ICJ ‘Certain Expenses’ Adv. Op. (1962) 30 IO Membership, Powers, Decision-making 2. Powers of IOs When the competence of an international organization or its body is challenged, IO or body itself decides whether the challenge has merit − UN: Secretariat’s Office of Legal Affairs advises on this − In case of doubt or of conflicting opinions between bodies, advisory opinion may be requested from ICJ (art. 96 UNC jo art. 65 Statute) But ICJ has no right of judicial review, and may not declare act of UN organs ultra vires o ‘Namibia,’ ‘Lockerbie’ IO Membership, Powers, Decision-making 31 2. Powers of IOs ICJ can comment on UNSC’s decisions and actions, but not interpret, let alone declare ultra vires − ICJ ‘Bosnia genocide’ case (1993) One could argue that Court of Justice of European Union’s (CJEU) ‘Kadi’ decisions are in effect indirect judicial review of a UNSC act Like UNSC, UNGA has been involved in lawmaking, a power not expressly provided in UNC IO Membership, Powers, Decision-making 32 2. Powers of IOs An act/decision by IO that exceeds or infringes its powers is ‘ultra vires’ − Ultra vires is a question of: is this act valid? Or does it exceed the powers of the IO? − It is internal question for IO → acts adopted ultra vires are not identical to acts in violation of international law − That is a matter of IO’s responsibility to another party → external matter for IO IO Membership, Powers, Decision-making 33  2. Powers of IOs Also distinguish the question whether an IO act is valid from the act’s legal effect, i.e. binding or not binding − External matter Members of the IO/organ are permitted to raise the objection of ultra vires; non- members cannot − Latter can only raise responsibility Who decides whether an act is ultra vires? The IO or organ that acted itself − Some IOs have a court for that o E.g. CJEU IO Membership, Powers, Decision-making 34 2. Powers of IOs Ultra vires is not applicable to defects that are ‘not essential’ The consequence of establishing an act as being ultra vires: the act can be annulled, i.e. it can be considered to have never existed IO Membership, Powers, Decision-making 35  3. Decision- making in IOs Based on the IO’s constituent instrument, each organ typically has its own rules of procedure Different IOs have different ways votes are allocated or weighted. Not all IOs operate on the basis of the principle ‘one state one vote’ − E.g. International Monetary Fund (IMF) IO Membership, Powers, Decision-making 36 3. Decision- making in IOs Types of decision-making processes: 1. Decision-making by consensus: no vote, but consultations until general agreement is reached. Decision is taken by ‘acclamation’ − Typical at several IOs − Why is consensus attractive? IO Membership, Powers, Decision-making 37 3. Decision-making in IOs 2. Decision-making by unanimity: voting procedure where decision is adopted only if all (present and voting) vote in favour − Advantages − Disadvantages IO Membership, Powers, Decision-making 38 IO Membership, Powers, Decision-making 3. Decision-making in IOs Decision-making by majority − Simple majority: 50% + 1 MS need to vote in favour for decision to be adopted − Qualified majority 39  Workshop IO membership and decision-making − Case study: admission of a new member to the UN − Case study: China and Taiwan at the UN IO powers − Case study: ICJ Legality of nuclear weapons (WHO Request) Adv. Op. (1996) 40 IO Membership, Powers, Decision-making