Law of International Institutions

1. Law of International Institutions An introduction By Dr. Kathy-Ann Brown

2. Presentation outline • The development of the law of IOs • Sources of IO law • Rules of interpretation • International personality • IOs acting through organs & agents • The doctrine of ultra vires • International responsibility • Other legal concerns

3. The development of IO law • Bilateral diplomacy • ad hoc conferences • IOs • “IO” means an organization established by a treaty or other instrument governed by int’l law & possessing its own int’l legal personality. IOs may include as members, in addition to States, other entities • ILC Draft Articles on the Responsibility of IOs, Art. 2

4. Sources of IO law • The constitution of an IO & its interpretation • Legislative texts of an IO, e.g. statutes of administrative tribunals • The law-creating practice of an IO • General principles of law • Customary int’l law, e.g. in the interpretation of constitutions & legislative texts & to the responsibility of & to IOs • Conventional law, e.g. re immunities & privileges • Judicial decisions, insofar as they apply general principles in the interpretation of texts

5. Rules of interpretation: VCLT, Arts 31 & 32 • Good faith • Ordinary meaning of the terms – taking into account: • The context The object & purpose of the treaty • The preamble & annexes • An Ag made in connection with the conclusion of the treaty • An instrument made by 1or > parties & accepted by the others as related to the treaty • A subsequent Ag re the interpretation of the treaty or its application • Subsequent practice & • Rules of int’l law • Supplementary means of interpretation incl. preparatory wk & the circumstances of the conclusion of the treaty

6. Legal personality • Recognition of IOs in domestic law • Diplomatic Immunities & Privileges Act • Arab Monetary Fund v. Hashim & Others (No 3) • Legal personality may be inferred but may also be recognized in constituent documents

7. CARICOM TREATY • Art.228: Legal Capacity of the Community • Community shall have full juridical personality • Every Member shall accord to the Community the most extensive legal capacity accorded to legal persons under its laws incl. the capacity to acquire & dispose of movable & immovable property & to sue & be sued in its own name ... • Community may conclude ags with States & IOs • Members agree to take such action as is necessary to give effect to this Article & shall promptly inform the Secretariat of such action

8. International legal personality • ‘The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.’ • Reparation for Injuries Case, ICJ Rep., (1949), 174, 178 • Int’l personality may be attributed to entities ‘with a certain autonomy, to which the parties entrust the task of realising certain common goals’ • Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Rep., (1996), §19.

9. Objective international personality • ‘international personality’ means ‘to be capable of bearing rights and duties’ • Reparation for Injuries Case, ICJ Rep., (1949), 174, 179 • Whether an entity does bear rights and duties in the particular case will be relative to functions, purposes and practice • Ian Brownlie & Guy S. Goodwin-Gill, Joint Opinion on the Int’l Legal Personality of the IPU • The achievement of the ends/purposes of the IO must require as indispensable the attribution of int’l personality. The IO must be intended to exercise & enjoy functions & rights which can only be explained on the basis of the possession of int’l personality • Reparation for Injuries Case, ICJ Rep., (1949), 174

10. Objective international personality • What counts is the degree of recognition & acceptance of such entities manifested by States in their dealings with them, which also goes to the measure of personality, the amount of which in turn depends upon a functional analysis of aims & purposes. … not every occurrence of int’l personality necessarily entails the presence of an IO in the fullest sense of the word; thus, … the Red Cross, a private institution … is nonetheless considered to possess int’l personality. • Ian Brownlie & Guy S. Goodwin-Gill, Joint Opinion on the International Legal Personality of the IPU

11. Measuring international personality • Identify certain rights, duties & powers expressly conferred on IO & derive int’l personality from this • Look for certain criteria: • permanent association of States, with lawful objects & organs that are able to take action solely subject to the authority of the participants in the organ acting jointly; • a distinction, in terms of legal powers & purposes between the IO & its members; • the existence of legal powers exercisable on the international plane & not solely within the national systems of one or more states

12. Consequences of international personality • No single set of rights & obligations for IOs as for States • Look to rules of the IO • “rules of the IO” means, in particular, the constituent instruments, decisions, resolutions & other acts of the IO adopted in accordance with those instruments, & established practice of the IO • ILC Draft Articles on the Responsibility of IOs, Art 2 • Functional test

13. IOs act through organs & agents • “organ of an IO” means any person or entity which has that status in accordance with the rules of the IO • “agent of an IO” means an official or other person or entity, other than an organ, who is charged by the IO with carrying out, or helping to carry out, one of its functions, & thus through whom the IO acts • ILC Draft Articles on the Responsibility of IOs, Art 2

14. IO Organs • The structure, powers & working of the organs & the voting scheme in them, if any, are determined by the constitutions & purposes & functions of the IO concerned & will differ not only as between organs but from IO to IO • Principal & subsidiary organs • Plenary organs & organs of limited membership • Organs may meet at the senior official level or Ministerial level

15. CARICOM TREATY • ARTICLE 10 - Organs of the Community • The principal Organs of the Community are: • the Conference of Heads of Government & • the Community Council of Ministers which shall be the second highest organ • In the performance of their functions, the principal Organs shall be assisted by the following Organs: • the Council for Finance & Planning • the Council for Trade & Economic Development • the Council for Foreign & Community Relations & • the Council for Human & Social Development

16. CARICOM Treaty • Article 12(6): The Conference may establish such Organs or Bodies as it considers necessary for the achievement of the objectives of the Community • ARTICLE 18 - Bodies of the Community • There are hereby established as Bodies of the Community: • the Legal Affairs Committee • the Budget Committee • the Committee of Central Bank Governors • The Organs of the Community may establish, as they deem necessary, other Bodies of the Community

17. Implied powers • Note that even where there is no express power to establish subsidiary organs, an organ will have the implied power as necessary for the discharge of its functions. Nor does the conferral of an express power on some organs negate inferring an implied power on other organs or necessarily limit the power to what is expressly conferred

18. Other organs - • CARICOM, Art 23(1) – The Secretariat shall be the principal admin. organ of the Community • The implied powers of a Secretariat will generally be limited to assuring the effective internal administration of the IO concerned • Many IO constitutions will include provisions prohibiting member states from trying to influence Secretariat staff in undertaking their duties as exclusive loyalty should be to the IO • Judicial organs – not generally integrated into the hierarchical structure of the IO

19. Decision making - voting • Presumption is one state, one vote – unless indicated otherwise • Majorities vary – simple, qualified (2/3, ¾, 3/5), absolute majorities • Rules on quorum requirements • Treatment of abstentions varies; e.g. does absence from a meeting = abstention?

20. Effect of organizational acts • Decisions, recommendations … - terminology is not decisive of legal effect, only indicative • General principle - unless there is specific & express provision in the constitutional instruments or an ineluctable implication arises therefrom, acts of organs do not have binding or similar effect in the operational field • Should not presume that States which create an IO intend that the IO should make binding decisions on them which impose obligations & confer rights

21. Legal effects of IO non-binding decisions • A duty to consider in good faith &, if requested, explain action or inaction  arises from mere membership • A duty to cooperate  a basic obligation of membership is to cooperate in achieving IO objectives; but cooperate ‡ duty to comply • A duty to assist, i.e. not to obstruct & finance activity as may be required by IO rules • Provide an authorization for action &/or basis for implementation – i.e. legitimize state action • Evidence of the formal sources of law – e.g. UNGA resolutions & general principles of law

22. Doctrine of ultra vires • “each organ must, in the first place at least, determine its own jurisdiction.” • Certain Expenses case • Recourse to dispute settlement? • Advisory Op; litigation; authoritative interpretation • Right of last resort: may an objecting State not recognize the IO act & e.g. withhold contributions for expenditures improperly incurred?

23. UN approach – Advisory Opinions • ICJ Statute, Art 65: • The Court may give an ad. opinion on any legal question at the request of whatever body may be authorized by or in accordance with the UN Charter to make such a request • UN Charter, Article 96 • The GA or the SC may request the ICJ to give an advisory opinion on any legal question • Other UN organs & specialized agencies, which may at any time be so authorized by the GA, may also request ad. opinions of the Court on legal questions arising within the scope of their activities

24. CARICOM approach • Article 212 - Advisory Opinions of the Court • The Court shall have exclusive jurisdiction to deliver ad. ops re the interpretation & application of the Treaty. • Ad. ops shall be delivered only at the request of the Member States parties to a dispute or the Community • Article 211- Jurisdiction in Contentious Proceedings • Subject to this Treaty, the Court shall have compulsory & exclusive jurisdiction to hear & determine disputes concerning the interpretation & application of the Treaty, including: • disputes between the MS parties to the Ag; • disputes between the MS & the Community; • referrals from national courts of the MS; • applications by persons in accordance with Art 222, re the interpretation & application of this Treaty

25. WTO approach • Article IX.2 of the WTO Agreement • The Min. Conf. & the GC shall have the exclusiveauthority to adopt interpretations of this Ag & of the MTAs. In the case of an interpretation of a MTA, they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Ag. The decision to adopt an interpretation shall be taken by a ¾ majority of the Members. This paragraph shall not be used in a manner that would undermine the amendment provisions in Article X

26. ILC 2011 Draft Articles 51-55 • Allows MS to take countermeasures against an IO in limited circumstances, where, • to induce IO to comply with obligations & no other appropriate means are available; & • countermeasures are not inconsistent with the rules of the IO; & are provided by the rules where the breach arises from the rules • Countermeasures may not be taken where the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties

27. Legal effect of ultra vires acts • Legal certainty vs validity: - • Domestic law – void, voidable, no effect • Int’l law - either irregularity has no effect or is of such a nature as to constitute an essential defect. • Procedural defects generally do not result in the invalidity of a decision unless they result in the adoption of a wrong decision or a miscarriage of justice. • E.g. rules require ¾ majority but decision adopted by simple majority which violates the constitutional rights of the minority

28. Responsibility of IOs • IOs recognized under domestic law can enter into contracts etc like a company & will be bound by the proper law. Tortious acts will be governed by the lex loci delicti commissi where these involve non-international persons, & may be governed by int’l law where these involve States & other IOs

29. ILC 2011 Draft Articles • Article 1- Scope: - the present draft articles apply to the international responsibility of • an IO for an int’lly wrongful act • a State for an int’lly wrongful act in connection with the conduct of an IO • Article 64 Lex specialis • The draft articles do not apply to the extent that the conditions for the existence of an int’lly wrongful act or the int’l responsibility of an IO, or of a State in connection therewith, are governed by special rules of int’l law (as may be contained in IO rules applicable to the relations between an IO & its members). • Article 67: - These draft articles are without prejudice to the UN Charter

30. ILC Draft Articles on IO responsibility • Article 8 - The conduct of an organ or agent of an IO shall be considered an act of that IO under int’l law if the organ or agent acts in an official capacity & within the overall functions of that IO, even if the conduct exceeds the authority of that organ or agent or contravenes instructions

31. ILC Draft Articles on IO responsibility • Article 10 Existence of a breach of an int’l obligation • There is a breach of an int’l obligation by an IO when an act of that IO is not in conformity with what is required of it by that obligation, regardless of the origin or character of the obligation concerned • Para 1 includes the breach of any int’l obligation that may arise for an IO towards its members under the rules of the IO

32. Other matters: membership & representation • Questions may arise, e.g., • Where there is a change of government through revolution – Libya, Egypt, Syria • A new State emerges through secession - Yugoslavia, USSR • A new State emerges through unification, e.g. Tanganyika & Zanzibar to form United Republic of Tanzania • Treatment has differed • Customary Int’l law & practice supports the right of a State to determine who composes its delegation

33. Succession to IOs • JAMAICA - MARGINS OF PREFERENCE • Report of the Panel adopted on 2 February 1971 (L/3485 - 18S/183) • UK on 28 June 1948 gave notice of its intention to apply the GATT provisionally to the territories for the international relations of which it was responsible. JA was explicitly excluded at that time. But in 1962 the UK notified that the GATT was to be applied provisionally also in respect of JA effective as from 1 Aug 1962. JA became independent 6 Aug 1962. GATT D-G consulted with JA. On 31 Dec 1963 JA certified as GATT CP with rights & obligations previously accepted by UK dating back to 10 April 1947. But JA had modified certain tariffs. Panel recommended changing base date to 1 Aug 1962.

34. Other matters • Privileges & immunities – • provided for under IO statutes, or relevant int’l agreements • Amendment of IO constitutions • Provided for under IO statutes • VCTL – Article 39 - A treaty may be amended by agreement between the parties • An agreement may be evidenced through practice

35. THANK YOU & any further questions?