The law of international institutions

1. The law of international institutions ***

2. a few words about the subject… • Two streams of scholarship • ’A common law of IO’s’ • IO’s are always sui generis

3. Brief history • Concert of Europe (Congress of Vienna) • Hague system (peace conferences 1899 and 1907) • international public unions (ITU, UPU) • League of Nations • United Nations

4. Types of international organizations • IGO’s • NGO’s • Global/regional (UN/EU) • UN programmes (UNEP, UNDP) • International courts • ’hybrids’; COPs, IUCN, ICRC, CSCE/OSCE…

5. An example; MEA COPs • Brunnée: ’COPs […] represents hybrids between issue-specific diplomatic conferences and the permanent plenary bodies of international organizations; they exercise their functions at the interface of the law of treaties and the law of international organizations.’, Leiden J. Int’l L. (2002) • Churchill & Ulfstein: ’Autonomous Institutional Arrangements’, Am. J. Int’l L. (2000)

6. Definitions • Art. 2 of VCLTSIO • Art. 2 of ILC draft articles: “. . . the term ‘international organization’ refers to an organization established by treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include members, in addition to States, other entities”.

7. Definitions • Schermers & Blokker: ’forms of cooperation founded on an international agreement creating at least one organ with a will of its own, established under international law’.

8. Legal issues common to all IO’s • International legal personality • Interpretation of constituent treaties • Powers (including treaty-making) • Responsibility • Priviliges and immunities

9. (more) legal issues common to all IO’s • Control of legality • Decision-making process • Membership • Dissolution/succession • Delimitation of competences • Amendments • Are IO’s bound by human rights law? • Reform of IO’s

10. International legal personality • Reparation for injuries case • ”. . . It is a subject of international law and capable of possessing international rights and duties. . .” (Rep. Case 179) • Doctrine of implied powers

11. Consequences of international legal personality • (1) distinguishes collective entity from the members • (2) entitles the organization to bring an international claim • (3) the organization is responsible for its own acts (International Tin Council litigation)

12. Objective international personality • . . . ”fifty states, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone . . . (Rep. Case 185)

13. Doctrine of implied powers • ”the rights and duties of an entity such as the Organisation must depend upon its purposees and functions as specified or implied in its constituent documents and developed in practice” (Rep. Case 180) • Beware of circular arguments! • Functional test

14. ’Circularity’ • If a general treaty-making power is deduced from the very fact of personality, even though personality itself is deduced from a specific treaty-making power. • The proper test is the functions and powers of the organization

15. Treaty-making powers • ILC: ”. . . All entities having treaty-making capacity necessarily (have) international personality. On the other hand it (does) not follow that all international persons (have) treaty-making capacity” • IO’s do not generally have law-making powers (but see e.g. art. 25 UN Charter)

16. The will of the founders (subjective/inductive), ’organizationhood’ (objective)or ’presumptive personality’? (’mystery’ wich approach ICJ use in Rep. Case)

17. ’Presumptive personality’ • As soon as an organization performs acts which can only be explained on the basis of international legal personality, such an organization will be presumed to be in possession of international legal personality.

18. Is ’personality’ a misleading metaphor? • Bederman prefers ’communities’ (”The Souls of International Organizations”, Va.J.Int’l.L., (1996):275)

19. Control of legality • What is the effect of a decision that is beyond the powers (ultra vires) of the organ or the organisation? • ”Is there room for judicial control of decisions of the political organs of the UN” (Akande, 1997, ICLQ 46:309)? • Certain Expenses case – ultra vires decisions are a nullity

20. Privileges and immunities • Customary international law requires states to grant privileges and immunities to IO’s • Art. (104) and 105 of UN Charter • Functional

21. Privileges and immunities • immunity from jurisdiction • immunity from execution • inviolability of premises, property and archives • currency and fiscal privileges • freedom of communication

22. International responsibility • ILC draft articles (DARIO) • ILA Committee on Accountability • International Tin Council cases • ECHR Behrami/Saramati cases

23. ”International Organizations:Then and Now”, Am. J. Int’l L. (2006): 324-347 • According to Alvarez IO’s have accomplished more than their creators anticipated; • Transformation of sources of law/content; • New law-making actors; • Changed our understanding of what international law is and what is means to ”comply” with rules

24. Rules for the World, Barnett & Finnemore • Barnett & Finnemore use organisational theory to understand IO’s (Int. Org., 1999, 53(4):699-732); • Sarfaty, ”Why Culture Matters in International Institutions . . .”, Am. J. Int’l L, (2009): 647-683; • Emergence of Global Administrative Law (www.iilj.org).

25. A marxist or TWAIL perspective • Chimni, ”International Institutions Today”, EJIL (2004):1-37.

26. The UN system • Principal organs (art. 7); General Assembly (chapter IV); Security Council (chapter V); ECOSOC (chapter X); ICJ (chapter XIV); Secretariat (chapter XV); Trusteeship Council (chapter XIII) • Specialized agencies • Institutional reform