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Law of international organizations 2 summary

Seminar 1 definition IO and legal personality IO

IO affect our lives in many way and touch upon powers of IOs
- States cooperating with each other, making agreements e.g. trade regulated such as online
purchases or worldwide purchase
- Whatever activity one wishes to engage in, be it the sending of a postcard to a friend abroad
or the purchase of a television set produced in a foreign country, it is more than likely that the
activity is in one way or another regulated by the activities of an international organization. J.
Klabbers, An Introduction to International Organizations Law (3rd ed. 2015, p. 1)

International organizations

Why do we have IOs?


- Cooperation between states
- Need for states to work on international matters together
- Serving the interests of the powerful states or not so powerful? To help the less, but in practice
the powerful ones have more say e.g. veto powers. On the one hand :The not so powerful can
benefit from binding the powerful if they work together in IO, but powerful states can use IO
to expand their powers and reach those states that have not reached that status.
- Common interest need to cooperate
- Transnational need to cooperate
- Joining powers to address particular topic
Are they a good thing?
- Yes - Application for Review of Judgment 273, 1982 ICJ Reps
- EU integration life of its own presumed yes?
- But UN peacekeepers violate the law
- UN corruption (Oil-for-Food)
- OPEC cartel?
States give up their sovereign powers attack a country only allowed under
authorization of UNSC
But lots of violations, corruption, cartel others not able to join oil production
Not too soon yes, but not definitely no
Depends on how things are decided, what is expected of states, what do states want to do
with IO?
Compared to states, international organizations are fairly new
- so it took a while to figure out what they were and what their powers are and role is
- this is not fully agreed yet whether they are subjects of international law or just assemblies of
state powers
- Lots of states want to cooperate, they see the benefit thereof
- IOs are new, things are still developing new player on international level we dont have
the best way how they should work, their legal powers, their relationship with states/people

Are IOs not popular anymore?


- E.g. Proposals for US to withdraw from UN e.g. Trump
- Privatization more market, less government
- More flexible, informal framework e.g. G20, BRICS, Libya Contact Group, Friends of Suria
- The new sovereignty e.g. Brexit From right (populist parties) to left. We take our own
decisions; No more IOs! Withdrawal from IOs (Duterte, Brexit).
States more assertive of their sovereignty
Informal frameworks more popular, IO are not that popular anymore.
States more comfortable to have more flexibility on international level balance for
states, where do we have control and where are we bound!
Yet, new IOs are still created
- Broader spectrum of issues to deal with involve international component eg. Terrorism,
environment, taxation, migration, social welfare
- Reasons for states to cooperate, build institutional framework to deal with issues
IL has something to say about it e.g. creation, governance IO, accountability IO,

International organizations and international law

IOs are created by law


- ICJ Legality of Nuclear Weapons in A.C. para. 19
IOs use the law as means of governance
- Internal
- External?
IOs should be governed by the rule of law
Effectiveness (constitution and function) Effectiveness perspective (what we used to look
at)
- How does IO use powers. What is constitution
- Challenges of effectiveness:
- Legal design (veto)
- Bilateralism
- Reform
Now we focus on accountability
- Challenges of accountability:
- Democratic accountability to natural persons (no elections, consequences on third persons)
- Judicial accountability to natural persons
Rise in bilateral agreements that challenge multilateral agreements
Democratic gap in most IOs. For members + contituents such as states
Challenge to judicial accountability, which norms apply, bound by human rights law, IHL, law
made by other IOs, bound by climate change laws? not settled, dealing with today
Procedures for holding IO responsible ?
Who can participate in IOs, procedures states NGOs,
Norms to hold IO responsible for its acts? No treaty law, there is custom, apply to all IOs?
not answered to everyones satisfaction upcoming field of IL
Law of international organizations - Definition

ILC (Gaja): organization includes States among its members exercises certain
governmental functions in its own capacity
Amerasinghe international agreement among states constitution organs separate from its
members establishment under international law membership of states or governments
international personality? treaty-making capacity?
Bindschedler (Encyclopedia of PIL) association of States established by and based upon a
treaty pursues common aims has its own special organs to fulfil particular functions
within the organization
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
- Created by IL
- Treaty (terms and conditions)
- Common purpose
- International legal personality
- Membership
- Autonomous will make decisions by themselves

No one definition
- ILC: only states included applies to IO whose members are states
Possible synthesis definition
- Agreement under IL, between subjects of IL, meaningful independence/autonomous will,
purpose
Entity established by agreement under international law between subjects of international law
With a degree of meaningful independence of judgment and action from its members to
accomplish certain limited objectives

Is each IO so unique that we cannot study IO law in general?


- Or do they have enough commonalities to study them as a topic?
- There are common aspects and issues among IOs
- Also issues that are not common to all IOs e.g. authorize use of force UNSC
Gaja (ILC) ... the great variety of existing international organizations would make it difficult
to state general rules applying to all types of organization. ... It is clearly preferable only to
address questions relating to a relatively homogeneous category of international
organizations.
Do not think that all IOs are entirely unique OR entirely common
- For every question you need to assess whether this is a case where generalized rules on IOs
prevails or where the IO has a special rule general or special rule/Lex specialis
- So one way to think of general IO law and each organizations constitution particulars as lex
specialis
Rights and obligations how does international law point out which entities possess rights
and/or obligations, and under which conditions?
- International legal personality

International legal personality

What is personality
- Von Savigny: the real legal person lacks any innate personality Fiction, not real not a
natural person, not a state
- Gierke: - an entity possesses a real existence, including its own will, distinct from that of other
members will of their own, sets apart from other members e.g. states
- Kelsen: personality is a bundle of rights, competences, obligations
- Synthesis: mostly Kelsen ICJ does : A separate and meaningfully independent existence
including a capacity to bear legal rights and/or obligations
- case Reparation:

ICJ, Reparation for Injuries, Advisory Opinion - What did the Court decide?
1. in the international legal system, as in any other legal system, different subjects could
have different rights:
- The subjects of law in any legal system are not necessarily identical in nature or in the extent
of their rights, and their nature depends upon the needs of the Community
- ICJ: lot of variation, not all IOs are the same, can have different rights and obligations. Nature
depends on needs of community
2. distinction between a state, a super-state and an international organization
- is not the same thing as saying that it is a State, which it certainly is not, or that its legal
personality and rights and duties are the same as those of a State. Still less is it the same thing
as saying that it is a super-State, whatever that expression may mean.
- IO not a state also not super state, just because it is created by states not above states
3. for an IO not all rights need to be international rights and obligations as long as it is
capable of possessing international rights and obligations
- It does not even imply that all its rights and duties must be upon the international plane, any
more than all the rights and duties of a State must be upon that plane. What it does mean is
that it is a subject of international law and capable of possessing international rights and duties
- Capable of possessing international rights and obligations and recognized as subject of IL,
then it can do something on international level
4. UN has international legal personality
- Court looked at:
- Establishment UN
- intended to exercise and enjoy (international legal personality) functions and rights
- its constitution UNCH constitutive document
- Subsequent practice of the international community
- Achievement of the ends (purposes) of the org. fulfilled or work in progress for UN
Elements court used to establish international legal personality for UN. Relevant for other
IOs?
What is the legal basis for personality?
Personality was
- Granted? Unclear if this was the case
- Art. 104 UNCH, contains limitation only in domestic legal orders of MS not to non-MS
- Inherited powers: because it is IO it has legal personality vs implied: in its functions
- Implied? yes conditions:
- Functions necessary to achieve purpose of IO
Can personality be implied by how the international community treats the
organization?
- International Committee of the Red Cross-Switzerland Headquarters Agreement
- EU delegation accreditation documents
- C-321/95 P Stichting Greenpeace v European Commission
If it can be implied, what are the criteria?
- Necessary to achieve ends
- Could UN operate an as unincorporated entity? (compare to a partnership)
- What is necessary? Essential or Useful?
- Inherent? Also unclear Inherent also unclear most authors that it is implied rather than
inherited

5. claim for damage caused to its agent is an assertion of its own right and not in a
representative capacity (cf diplomatic protection)
- Own rights IO can make those claims because it is necessary or otherwise not able to fulfil
its function
6. the UN had the capacity to bring international claims not explicit in UNCH
Implied? Necessary to achieve purposes? ICJ: yes, to fulfil purposes of UN
Inherent?
- If an IO, then the entity has other rights and duties derived from international law?
- Are there inherent rights and duties bc it is an IO? See Cristiani v Italian-American
Institute, immunities flow from personality, but why did it have personality?

Problem: one needs to be a person to have a right, yet having a right implies that one is a
person
need capacity first or does capacity derive from the powers granted?
- Necessary to first establish legal personality, or because IO do something we have
international legal personality we dont know
- Reparations case determine whether UN has personality based on its rights/obligations
- Commission v. Council: different approach, EC does have legal personality so it must have the
power to conclude treaty
Part of the problem of the circle is that it is unclear where international legal personality
comes from and whether having personality alone has any normative value to create rights
Circularity issue, vague and we dont know how to deal with it
Majority: international legal personality is question of capacity to have international rights and
obligations best interpretation

How to determine if an org has legal personality has the capacity to bear international
rights and duties?
1. Will of founders granted personality less rare today than it was before the 1990s!
- ICJ Statute: Article 4: The Court shall have international legal personality. It shall also have
such legal capacity as may be necessary for the exercise of its functions and the fulfilment of
its purposes.
- Agreement for the Establishment of the International Anti-Corruption Academy (2010), Art.
I.2: The Academy shall possess full international legal personality.
- Agreement on the status and functions of the International Commission on Missing Persons
(2014), Art. I.2: The Commission shall possess full international legal personality and enjoy
such capacities as may be necessary for the exercise of its functions and the fulfilment of its
purposes.
- Agreement relating to the establishment of the Functional Airspace Block Europe Central
(FABEC) (GER/BEL/FR/LUX/NETH/SWI) 2010, entry into force 1/6/2013, Art. 2.2: This
Treaty does not create an international organisation with international legal personality.
- Does it matter whether it is in the constitution if IO has legal personality? Express power?
Week 6
- What if no one wants to deal with you? Recognition?
2. Implied granted powers that imply personality
- A. Functional necessity granted powers that need personality to function
- B. Recognition by third parties treated as though it has personality, see EU no grant of
personality, yet enters into treaties with states!
- C. Presumptive personality unless otherwise proven not to
- Exchange of Greek and Turkish Population case assumed international personality
- European Commission on the Danube case, PCIJ, Series B No. 14, at 64.
- Intent of creators? If founding fathers wanted it they had a chance to put in the constitution, if
they havent then maybe they didnt want it
3. Objective/Inherent theory if will of its own then it has inherent personality minority
view
- But arent IOs just the collective decisions of their members? In order to really have a distinct
will, dont they need to be able to bind the members against their will?
- And what if the founders expressly did not want it to have personality?

But if the capacity and rights/duties are what is important, what is the significance of
personality in itself?
- Limit liability of MS UN gets blamed when things go wrong, and states take credit when
things go right
- Recognize group as group Legitimate within the international community and must be
listened to, defend own rights
- Establish true for all IO intention MS and IO when is there will of its own distinct from
will of members
Lose some degree of control to have certain projects done with less politics,
but retain enough power to intervene when issues are really important
this tension between states and IOs is one of the most important issues in LIOs

Returning to the Reparation case - What else did the Court decide?
7. Objective international legal personality an international legal person when it interacts
with any state, including non-members
- UN created by fifty states representing the vast majority of the international community (at the
time)
- No recognition theoretical clash (declaratory/constitutive) in LIOs, but should there be?
- Treaties, including constitutive instruments, cannot bind third states!
- Requirement that it be vast majority to be objective?
- Maybe only the UN? See Mothers of Srebrenica (Neths Sup Ct)
But usually IOs are considered to have relative personality (certain actors only)
EUI v Piette, Ital cassation
- the provision in an international agreement of the obligation to recognize legal personality to
an organization and the implementation by law of that provision only mean that the
organization acquires legal personality under the municipal law of the contracting States
Communaut conomique des Etats de lAfrique de lOuest v. BCCI, Paris, App Ct
- without agreement, a non-member State is under no obligation to grant immunity to an foreign
international organization
Duhalde v. Organizacin Panamericana de la Salud, Sup Ct Arg (same)

Objective and relative International legal personality


- You can do things that are regulated by international law
- If you have it, then you are a subject of international law
Objective appears to be when the IO exists under general international law (cf. general
customary international law), e.g. UN; recognized and interacts with members and non-
members.
- Recognized as having international legal personality by members and non-members
Relative appears to be when the IO exists under a special international law (cf. special
customary international law), e.g. Ned. Taalunie; entities are considered international legal
persons for some purposes but not others, or only in relation to certain actors, but not others.
- Closed regime in itself
- For limited nr of members, the IO has legal personality and can thus do things and bind
members but not non-members difficulty: org. may still have to deal with non-members,
how do non-members deal with that?:
However, possible solutions for personality in non-members legal systems:
1. Recognition
2. Private international law

Recognition
- Express recognition: rare + UN-Switzerland HQ agreement, OPEC-Austria HQ agreement
- Implied recognition: conclude treaty, thereby recognizing the existence and international legal
personality of org. US accepting and accrediting EU mission
Private international law
- International law: When conflict of different national legislation, some ways to be able with
that IO to say one legal system is preferred over other e.g. AS v. Iran-US claims tribunal
- Foreign domestic law: recognized in one country, should be recognized in other country
Cases

ICJ: reparation for injuries suffered (legal personality UN)


- It is a subject of international law and capable of possessing international rights and
duties and that it has capacity to maintain its rights by bringing international claims
- It cannot be doubted that the org. has the capacity to bring an international claim
against one of its members which has caused injury to it by a breach of its
international obligations towards it.
- The org. has the capacity to claim adequate reparation and that in assessing this
reparation, it is authorized to include the damage suffered by the victim or by the
persons entitled through him
ECJ: Case 22/70 Commission v Council, 1971
- The Community enjoys the capacity to establish contractual links with third countries
over the whole field of objectives defined by the Treaty. This authority arises not only
from an express conferment by the Treaty, but may equally flow from other provisions
of the Treaty and from measures adopted, within the framework of those provisions,
by the Community institutions
National courts
- Iran-US Claims Tribunal v AS, Supreme Court, Netherlands 1985 The applicant
complains of having had no access to a court or tribunal in the determination of the
legal validity of the unilateral termination of his labour contract with the Iran-United
States Claims Tribunal. The Commission notes that it is in accordance with
international law that States confer immunities and privileges to international bodies
like the Iran-United States Claims Tribunal which are situated in their territory. The
Commission does not consider that such a restriction of national sovereignty in order
to facilitate the working of an international body gives rise to an issue under the
Convention inadmissible

Seminar 2 powers and acts ultra vires


Cases:

ICJ AO: legality of the use by state of nuclear weapons in ac.


- Question: not related to the effects of the use of nuclear weapons on health but to the legality
of the use of such weapons in view of their health and environmental effects
- Art. 2 of the WHO constitution cannot be understood as conferring upon the org. a
competence to address the legality of the use of nuclear weapons thus in turn a competence to
ask the court about that
- Under IL the org. must be deemed to have those powers which, though not expressly provided
in the CH, are conferred upon it by necessary implication as being essential to the
performance of its duties. (reparation AO)
- However the ascribe WHO the competence to address the legality of the use of nuclear
weapons even in view of health and environmental effects would be tantamount to
disregarding principle of speciality such competence not necessary implication of the
constitution of the org. in the light of the purposes assigned to it by MS.
- Not within org. to ask about this principle of specialty
- It cannot ask about this as there are better suited organs who can ask questions about peace
and security external circumstances that prevent you from using these powers
ICJ AO Certain Expenses
- Whether certain expenses authorized by GA to cover costs of the UN operations in Congo,
constitute expenses of the org. within the meaning of art 17(2) UNCH
- When the maintenance of international peace and security is involved, only the SC should be
able to act Since the GAs power is limited to discussing, recommending, considering and
studying, it cannot impose and obligation to pay the expenses which result from the
implementation of its recommendations
- But UNCH makes clear that GA is also to be concerned with international peace and security
the responsibility conferred is primary and
- not exclusive
- Is an expense of org and GA has authority
ICJ AO Legal Consequences for states of the continued presence of SA in Namibia
- In the voting of the res. Two permanent members of SC abstained
- By abstaining: a member does not signify its objection to the approval of what is being
proposed in order to prevent the adoption of a resolution requiring ananimty of the permanent
members, a permanent member has only to cast a negative vote
- Powers IO
- Connection between powers of IO and international legal personality
- Ultra vires: acting beyond powers, can be lawful but just does not fall within the competences
of IO
Powers

Mandate of HRC Libya Inquiry Com.


to investigate all alleged violations of international human rights law in Libya, to establish
the facts and circumstances of such violations and of the crimes perpetrated and, where
possible, to identify those responsible, to make recommendations, in particular, on
accountability measures, all with a view to ensuring that those individuals responsible are held
accountable.
Included discussion of NATO operation Unified Protector. Ultra vires?
- All alleged violations also review NATO actions
UN SC Res. 1973
to take all necessary measures, [], to protect civilians and civilian populated areas under
threat of attack in the Libyan Arab Jamahiriya, including Benghazi
Is this in line with the UN Charter?
- In line with UNCH? Whatever SC deems a threat or act of international peace and security
must be accepted as threat or breach or act of aggression to international peace and security if
there is such threat then enforcement mechanism used to protect/maintain or restore
international peace and security art. 39 UNCH
- International ac, refugee etc. is now added to this list
- Not ultra vires
Was regime change, following the adoption of the resolution, an ultra vires act of NATO?
- Regime change following the adoption of the resolution an ultra vires act of NATO?
- Depends on what it meant by to protect does regime change help to protect
- This saying was never used again (to protect civilians..), in international politics as no one will
know what they can or not do
- Yes ultra vires, they went too far and removed threat not included in resolution
Powers and legal effects

When an org. acts, what are the legal effects of the act?
What powers do IO have?
- Did the IO act within those powers?
- Was it an ultra vires act?
What is the legal effect of the act?
- is it binding?
- Is it non-binding?
- Are there any other obligations for a non-binding act?

What powers do IOs have?


- No general powers like states as they can do whatever they want within limits set by IL No
general powers, like States
- PCIJ, Advisory Opinion, Jurisdiction of the European Commission of the Danube, 1927, p. 64:
As the European Commission is not a State, but an international institution with a special
purpose, it only has the functions bestowed upon it by the Definite Statute, with a view to the
fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so
far as the Statute does not impose restrictions upon it PICJ: EU Com not state but
international institution with special purpose to fulfil it needs to have some powers in it as
long as the statute does not impose restrictions upon it powers limited by statute or treaty
establishing IO
- ICJ, Advisory Opinion, WHO, 1996, para. 25: The Court need hardly point out that
international organizations are subjects of international law which do not, unlike States,
possess a general competence. International organizations are governed by the "principle of
speciality", that is to say, 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 AO legality: principle of speciality limits also found in function of common
interest, if it doesnt function in the common interest of the states creating IO, then acts ultra
vires only has powers which serves the purpose of org.
Powers

Where do the powers of an IO come from? implied


- Early cases: we know how to interpret treaty find in treaty by treaty interpretation the
powers of IO see e.g. Competence of the ILO over agriculture power of the ILO seen as
merely question of interpretation of the constitution with the usual treaty interpretation
techniques powers come from the treaty
- Three approaches to determining where the powers come from -Spectrum of consent by
founders:
1. Attribution of powers org. have those powers they are attributed by the founding
members strict interpretation
2. Implied powers possibly implied powers where not expressly prohibited by the
constitution purpose of IO
3. Inherent powers inherent capacities and powers regardless of the org.s purposes and
functions, where not expressly prohibited by the constitution because it is org, it has
these powers

Attribution of powers
Working with the attribution perspective, three theoretical models for describing how IOs
acquire powers from members:
- Agency: agent is authorized to act on behalf of the principal under the principals control -
powers not transferred, only authority to bind authorized to act on behalf of MS, but you
are still under MSs control
- Delegated: assignment of decision-making authority to subordinate in order to carry out
certain activities under general oversight powers exercised by another that is responsible to
superior for correct use of powers powers to carry out certain activities, more or less in
control of that and do have to account for it to MS not as same extent as agency
- Transfer: grant powers to another entity (often irrevocably) and the transferor loses the power
and oversight granting to another entity, total loss of control after that e.g. MS of EU
Example FAO art. XVI legal status:
- 1. The Organization shall have the capacity of a legal person to perform any legal act
appropriate to its purpose which is not beyond the powers granted to it by this Constitution.
org can only do what is expressly there in constitution, those are attributed powers only
What about Art. 2 (7) UNCH: attributed powers can do anything else in UNCH but that

Implied powers
- ICJ, Advisory Opinion, WHO, 1996, para. 25: The powers conferred on international
organizations are normally the subject of an express statement in their constituent instruments.
Nevertheless, the necessities of international life may point to the need for organizations, in
order to achieve their objectives, to possess subsidiary powers which are not expressly
provided for in the basic instruments which govern their activities. It is generally accepted that
international organizations can exercise such powers, known as "implied" powers. go
beyond powers in constituent instrument
Possible ways to interpret implied powers theory:
Organizations have those capacities and powers which arise by necessary implication out of
their constitutions as being essential to the performance of their duties (necessary intendment);
Necessary implication essential for performance of duties
Organizations have those capacities and powers which are necessitated by the discharge of
their functions (what is necessary may not be essential) (a function may not be a duty)
May be necessary for functions but not all implied powers need to be essential (reparation)
- Reparation for Injuries Case (in relation to the general right to bring a claim): Whereas a
State possesses the totality of international rights and duties recognized by international law,
the rights and duties of an entity such as the Organization must depend upon its purposes and
functions as specified or implied in its constituent documents and developed in practice. []
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.
- Certain Expenses Case (Fitzmaurice) used the term as a matter of inherent necessity
(obligation to finance the organization)
Organizations have those powers and capacities which are appropriate for the fulfillment of
their stated purposes Appropriate for fulfilment of stated purposes
Most refer to first 2

Inherent powers
What powers might be inherent?
- treaty-making power Vienna Convention on Treaties (IOs), Article 6 capacity of
organizations to conclude treaties is governed by the rules of the organization
- active and passive power of legation
- capacity to bring international claims
- administering territories?
- owning a flag for ships on the high seas?
- Against the will of the founders? Sometimes powers go beyond will of founders and maybe
members. Founding members could have put in con org cannot do certain acts, but inherent
power theory: does not matter, it can do so because it is an org. tension between will of the
founders and inherent powers

Balance of powers between IO and MS


- Powers cannot be thought as discrete powers held exclusively by the member or IO
- Exercise of powers is always in tension
Why didnt the WHO get an advisory opinion from the ICJ? ICJ, Advisory Opinion, WHO,
1996:
- 1. ICJ, Advisory Opinion, WHO, 1996: to ascribe to the WHO the competence to address the
legality of the use of nuclear weapons - even in view of their health and environmental effects
- would be tantamount to disregarding the principle of speciality; for such competence could
not be deemed a necessary implication of the Constitution of the Organization in the light of
the purposes assigned to it by its member States.
- 2. It follows from the various instruments mentioned above that the WHO Constitution can
only be interpreted, as far as the powers conferred upon that Organization are concerned, by
taking due account not only of the general principle of speciality, but also of the logic of the
overall system contemplated by the Charter. If, according to the rules on which that system is
based, the WHO has, by virtue of Article 57 of the Charter, "wide international
responsibilities", those responsibilities are necessarily restricted to the sphere of public
"health" and cannot encroach on the responsibilities of other parts of the United Nations
system. And there is no doubt that questions concerning the use of force, the regulation of
armaments and disarmament are within the competence of the United Nations and lie outside
that of the specialized agencies.
Ultra vires
1. Who can raise an objection to the act of an IO on grounds of ultra vires?
Generally members have the right to protest within IO
Non-members generally not because act ultra vires you take within the org. normally non-
member not affected by ultra vires act if it is it will contest unlawfulness and not ultra
viresness of the org.
Limited to contesting the lawfulness of the act under international law and responsibilty of the
IO, not whether the act is ultra vires
- But see ICC non-party states may object to jurisdiction over their nationals is this a
question of whether the act was ultra vires or whether the act is lawful under international
law? Or of assisting the IO to reach its decision?
- Yusuf and Kadi is the EU a member of the UN? How could CFI/ECJ assess whether the act
was ultra vires? Or is it interpretation of the content of the SC resolution?
- ICAO Council Case 1972 ICJ Reports ICJ held that it had competence to review ICAO
council for ultra vires
2. Who decides whether the act was ultra vires?
IO itself can determine this if IO determined the question of ultra vires itself
- Decision is binding on national and international courts - IBRD and IMF v. All American
Cable and Radio Inc. [1953] FCC, USA
- Or at least its decision is presumptively correct Certain Expenses Case 1962 ICJ Reports p.
168: [] 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. Decision is
presumptively correct presume intra vires and not ultra vires but organ has power to review
own decisions
If IO not has power, other tribunal/organ may be precluded from review others might also
not have that power no judicial body, not in constituent instrument
- If not expressly designated - Entity other than the IO may be precluded from reviewing - See
EU where the CJEC is the designated organ to determine ultra vires, see e.g. Op. 2/00
[Cartagena Protocol] ECJ 2001 legal basis ... must rest on objective factors ... Amenable to
judicial review
- If review power has been deferred to another organ or IO - See e.g. UNAT defer to the ICJ
advisory opinion, many IOs defer employment issues to ILOAT
- If not a judicial body - Namibia Case (Fitzmaurice) a non-judicial organ should not be
empowered to take such a judicial decision
- If not empowered to consider merits - Entity may refuse to review IO decisions for ultra vires
when it concerns merely enforcement or recognition of international arbitral awards - See
Freylinghuysen v. Key US Sup Ct
- States and other tribunals may be able to review act for ultra vires in absence of above
ICAO Council Case 1972 ICJ Reports ICJ held that it had competence to review ICAO
council for ultra vires
What if member goes to court? ICJ: yes we have this power, within mandate to review ultra
vires acts as long as acts from IO or organs of UN family

3. Was act ultra vires?


Distinguish Always first up to organ that took decision to establish ultra vires or not
- Act ultra vires the IO
- Act ultra vires the organ, but not ultra vires the IO Expenses Case may still be valid
Some argue that IO acts and decisions are always legal and valid
Better view: Strong presumption of validity of acts of organs (in favor of the organ
determining its own competence correctly) Certain Expenses Case (each organ must, in the
first place at least, determine its own jurisdiction.)
- Certain Expenses (Lauterpacht) presumption of validity but that it is a rebuttable presumption
Keeping in mind the presumption, determine if the act was defective see Certain Expenses
(Morelli) 1962 ICJ Reports at p. 221, possible results - 3 outcomes:
- act conforms with all the conditions is intra vires Decision intra vires
- act does not conform with the conditions but does not give rise to an essential defect is
probably not ultra vires Not essential defect with decision/act still does not give rise to
ultra vires act may be procedural defect See e.g. many procedural defects, decisions are
adopted by a method of voting other than that prescribed in the rules generally will not result
in the invalidity of a decision, unless it results in the adoption of a wrong decision or a
miscarriage of justice - ICAO Council Case
- act does not conform with the conditions and gives rise to an essential defect is ultra vires
If it does not conform with the conditions and gives rise to an essential defect is ultra vires

4. what is the solution if an act is ultra vires?


If an act is declared ultra vires, possible results:
Act is void or voidable
- IMCO Case 1960 ICJ Reports p. 150 - IO acted as if the acts were null
- the Committee which was elected should be dissolved
- a new Committee should be elected in line with the ICJ interpretation of the
IMCO constitution
- the measures taken by the Committee during the period 1959 to 1961 were
adopted and confirmed
Act survives, but compensation granted
- Competence of the ILO to Regulate Agricultural Production Case, PCIJ Series B No.
3.
- certain kinds of irregularities do not result in the nullity
- circumstances of the case which make nullity impractical or undesirable

5. what if members disagree? Can they protect themselves?


No right of last resort - Certain Expenses Case (Morelli) 1962 ICJ Reports at p. 225: the
examination by the Assembly of the validity of the basic resolutions for the purpose of
authorizing the relevant expenses is final If decided by court, no further appeal no right of
last resort you have to follow
A right to last resort?
- A right of last resort to reject an allegedly ultra vires decision - Maastricht Treaty
Case German Federal Constitutional Court 33 ILM (1994) at p. 428.
- Disagreeing state may in the last resort not recognize the validity of the relevant act
Certain Expenses Case (Winiarski) 1962 ICJ Reports at p. 204 member could
exceptionally regard a resolution as a nullity
- Right of last resort exists and not lost by acquiescence - European Commission on the
Danube Case, PCIJ Series B No. 14 at p. 79 (Nyholm)
Others leave more room for state to protect themselves
E.g. certain expenses
Not decided yet
Case study : creation of ICTY by the UNSC

Did the UNSC have the power to create the ICTY? Did it act ultra vires?
38. The establishment of the International Tribunal by the Security Council does not signify,
however, that the Security Council has delegated to it some of its own functions or the
exercise of some of its own powers. Nor does it mean, in reverse, that the Security Council
was usurping for itself part of a judicial function which does not belong to it but to other
organs of the United Nations according to the Charter. The Security Council has resorted to
the establishment of a judicial organ in the form of an international criminal tribunal as an
instrument for the exercise of its own principal function of maintenance of peace and security,
i.e., as a measure contributing to the restoration and maintenance of peace in the former
Yugoslavia.
- ICTY and ICTR, established SC through ch. 7 political willingness
- When granted, mandatory cooperation, possibility to veto
- Art. 29 UNCH: SC may establish subsidiary organs as it deems necessary for
performance of its functions
- Art. 39 UNCH: threat to peace establish tribunal in order to deal with this and hold
persons accountable
- Art. 41: not using armed forces
- Resolution 827: based on arts. 39 + 41
- UNCH: can do anything in the purposes of UN
- Tribunal appropriate measure? Appropriateness does not matter for question whether
it is ultra vires act or not organ that decides on the measure decides on the
appropriateness as long as not contradict purposes of UN
- SC is not unlimited, but can do many things e.g. what measure, appropriateness,
deciding statute ICTY

Seminar 3
Guest lecture

Huge variety of IOs


All have decision making procedures
Common fields:
- Created particular reason Because practical problem e.g. LON and UN after WW
- Common interest
Institutionalization organs created powers given e.g. UNCH attribute powers
institutional framework respond to practice
Enable participating states respond efecctively (which they otherwise could not do) to future
development
Minsk Agreement: Ukraine crisis meeting on adoption of resolution
Many aspects decision-making
- Politics plays key role
- Law as well
Legal aspect of these discussions:
Palestine nor Kosovo is member
- Palestine is member of UNESCO, and Rome Statute
- Kosovo: IMF
- Because rules of decision making
- Admitting rules: you need decision of SC Russia is however against Kosovo, and UN
against Palestine
- Not able to be admitted
In other org. no veto, no SC therefore Kosovo is member result of decision-making
rules
Also reasons of power
Decision-making rules thus different in ios.
Important: decision-making rules of IOs, very technical rules
- All about power, international relations in IOs
UN Ch. Negotiated one issue most difficult one: Veto power in SC. 5 states from the 50 agreed
P5. No guarantee that SC will perform its functions main argument because of Veto
powers, P5 could block important decisions however not an effective UN without P5 thus it
needed to be accepted for effectiveness of UN
Recent ex: NL v. Belgium weighted voting in EU Council, Belgium only 5 votes many new
members in 1990s, big members much more votes, discussion on other states. NL then
suggested it could have 13 votes and Belgium 12 votes Bel. Did not agree affected
relations between them barmen serving himself first. Nice Treaty: final outcome. all
about influence and powers in EU
Role of legal rules in decision making is therefore very important future influence

How are decisions taken?


- Constituent document often treaty e.g. UNCH
- Own rule of procedure e.g. SC provisional rules of procedure
- Practice evolving practice as many IOs created in 19th century
Most UNSC decisions adopted by consensus meeting of the minds
- No one can disagree
- Important role of chair: no formal objection when chair asks
Art. 27(3)
- What if one or more P-5 members abstain from voting?
- Considered to be affirmative vote does not block decision-making however
provision states in needs all P5 yes votes
- Normally these methods do not come before ICJ, but AO on Namibia did
AO
- SA claims unlawfulness because of abstention
- ICJ responded to this para. 22 general practice. After amendment, this was
discussed, however there was no problem, thus now it cannot be a problem either
general practice of that organization.
When a rule and practice are not similar what then?
Normative kraft des: something normative in practice may not only happen but it is related to
the rules
- What is the distinction between something just unlawful and general practice that is
generally accepted?
- Customary international law: opinio juris and general practice
- Similar here, not just practice, must be a legal convinction something is done because
it has to be something normative
Ex.
- UN peacekeeping however not found in UNCH done by practice generally
accepted and not against rules in Ch.
- Use of force also not
- SC: 2 year term deal between Italy and NL each do one year however Ch. Says 2
years is this lawful? practice but not good for SC for the experience it is not
useful for body which needs to bring peace and security
AO WHO
- Para. 19: practice how can you use practice in interpretation Vienna
Convention: subsequent practice of states but here practice of org. hence is this
correct? Ex. Reparation: its a decision by the org.
ICJ: confirmed by practice, so you can rely on it court can feel more safe
- However sometimes Q is on this particular practice circular reasoning
Various Documents that talk about rules of IOs:
- Established practice of org. customary il you cannot only rely on law you need
more
Each organ has own rules
- Legal basis: IOs cannot do anything they want to do, reference to legal basis
- Initiative: who takes initiative in important decisions of IOs states alternative
art. 99 Secretary-General can put something on the agenda e.g. EU Com. Has
exclusive right of initiative because it is independent and does not represent the MS
- Voting/consensus: long term development decisions used to require unanimity
however in practice this did not work it was not efficient therefore decisions on
procedure we can accept majority vote thus also outvoting particular states later
stage decisions taken by majority vote
- Wilfred Jenks: saw new developments more acceptable, decisions can be taken
against will of some states so we can move forward
- Next state: in 60s and 70s: decisions by consensus
- No formal objection WTO footnote definition consensus plus must be present in
meeting
- Why decision-making by consensus so popular:
Crime of aggression Kampala conference
- Two issues:
- Stocktaking because successful
- Crime of aggression was quite successful which was not expected
- UK and France put pressure on the voting as they were UNSC members
- One hand in the end did go up Japan however not wish to block
- Then it was adopted by consensus

Seminar 4 sanctions and judicial review

Sanctions
- Not punitive in nature aimed to stop certain transgressions, or to prevent future
violations or misbehaviour, does not necessarily have to fall outside law
- Coercive, pressure ,
- 2 kinds: internal and external
- Any limits on what kind of sanctions? Ex. UPU, look at constituent documents, if
within powers of org, it can take all sanction it wants. However not always explicitly
in constituent instrument look at implied powers or inherent powers
International law, as sanctions have to conform with it
Jus cogens Kadi
Proportionality --> art. 54 Dario
Sanctions against members, staff, non-members

Against officials to stop misconduct

- not taken by political bodies, but administrative bodies as that falls within the
leadership
- military personnel in UN peacekeeping operation? responsibility lies with states,
the members included in most status of forces agreements, contributing state is
responsible for taking the disciplinary measures
constituent documents
- penalty for not paying sanction under art. 19 UNCH no voting rights
- UN GA Res. 60/251 (2006) suspension however not very common
- Libya HRC suspended
Other documents
- ICC referral
Collective enforcement measures
- Rare!
- Gulf war where use of force was authorized against one of its members Iraq
- Sanctions are very political
- UN may also use regional organizations ex. EU, OAS, AU UN takes measures tht
need to be implemented by regional organization who may carry out sanctions
Sanctions against non-members
- Retorsion (e.g. Turkey NL) unfriendly act, not unlawful
- Counter-measures normally unlawful but because of prior unlawful conduct of
other state, the unlawfulness is taken away. E.g. draft articles on state responsibility
However you cannot use force
Not erga omnes
Against IO
Against state? Art. 22 DARIO and apply arts. 49 -54 (by analogy)
- UN sanctioned collective enforcement measures incl. economic, diplomatic, force
through UN or regional orgs.
- E.g. EU sanctions against Congo, based on SC Res. UNSC decides whether it is a
breach of the peace, act of aggression etc. art. 48 it may use regional org.
UN targeted sanctions
- Target specific individuals e.g. travel bans, asset freezing
- Isssues: do all sanctions comply with international law, specifically international
human rights law
- Art. 103 UNCH: UNCH prevails

Judicial review
General

Decision-making decisions
Political bodies not to include judicial review of their actions? They want to maintain some
freedom of actions states are sovereign and dont want other states/org to have a say
Art. 263 TFEU CJEU has competency over EU organs
Other IOs might have something to stay, but few exceptions
A role for national courts? They do play a role in looking at decisions of IOs, however most
not want to do it as they find that it is outside their jurisdiction
ICJ Certain Expenses
ICJ Namibia
However development court not fixated on this provision
Why ICJ no judicial review of SC Res laid down in charter? Has to do with jurisdiction, and
org. would lose itseffectiveness if they would reverse their decision, SC could not do its
job,
But..
- not impossible to have judicial review power in case of conflict

SC practice prior to 1990


SC practice since 1990
Review of SC resolutions by other courts/tribunals
ICTY-Tadic
- Could ICTY review SC resolutions, establishing ICTY?
- Could not review it, establishment political issue not legal issue
- What did appeal established by law, within powers of SC, para. 47 by looking at
art. 39, 41 UNCH
Special Tribunal for Lebanon
- Constitutionalist approach: we dont have the power to review it so we wont
- Why should tribunal be able to review its own establishment?
ICC
Kampala consensus
Implications? SC finds it already difficult to say state is aggressor state, it hardly says there is
an act of aggression SC more careful, act of aggression is not nothing
Kadi

Court of first instance: dont have the authority to review, only see if it is against jus cogens
CJEU: violation of fundamental rights, not looking at decision of SC, but decision that
implements the SC done by the Council. Basing judgment on EU law, hence violated the
rights of Mr. Kadi

Nada and Al Dulimi EctHR


Important!

Seminar 6 responsibility IO
Exam:
law collections, slides, required readings
75% case study and 25% open questions
Case law important link to principles

Can you sue the UN?


- Waive immunity by Secretary-General
Can you sue the state when they were part of UN peacekeeping mission?

International responsibility

Question arose after Charter


1990s:
- Can we hold IOs responsible, if not are the members liable?
- Cumaraswamy, official cannot be held responsible but
ILC:
- Put in writing what is custom
- Draft articles on responsibility for IOs important
- Adopted in 2011
UN
- Whatever they do can be attributed to the IO
Hold the UN accountable:
- Article 4 Elements of an internationally wrongful act of an international organization
There is an internationally wrongful act of an international organization when conduct
consisting of an action or omission:
(a) is attributable to that organization under international law;
and (b) constitutes a breach of an international obligation of that organization.
Establishing responsibility
- B) assumes that obligation in place that binds the org.

1. There has to be an international obligation in force binding the IO


Are IOs bound by law/legal rules?
- Yes, interpretation of Agreement WHO and Egypt case ICJ
- International law + domestic law
Who is bound by the obligation?
- How to divide the responsibilities between IO and MS?
- Matthews: do what is necessary within org to make sure decision taken by org does
not contravene own obligations state must do its best to influence decision-making
within org to prevent from violating own obligations
Which rules bind an IO?
- Is UN bound by human rights law? And other norms from international law that
normally apply to states It has not been answered exclusively

2. There has to be an act violating international law


- Based on negative obligations not so much positive obligations
- Difficulty: role and autonomy of IOs
- Case Srebrenica: Dutch state held accountable for genocide or the UN?
- Duty to prevent genocide is obligation of states genocide is jus cogens
- Was UN bound by this duty? tension between MS and org. itself
Elements article 4
- Attributable to that org under international law?
- ICJ refused jurisdiction as Serbia was not UN member
Article 6 and 7
- Art.6: people officially working fo UN
- Art. 7: not officially working/hired by UN at disposal of UN
Who acted?
- Agent art. 2(d) DARIO
Organ of the IO
- Subsidiary organ
- Art. 7 DARIO peacekeeping operations within scope of art. 7
- Every peacekeeping operation the responsibility of the UN? depends on effective
control (case law)
- What if organ/official of IO acts ultra vires? Difference on responsibility? org. can
still be held responsible. Organ acts ultra vires, does not mean that org as such is
acting so.
- UN Peacekeepers: there might be a shift in responsibility, not org, but to contributing
country Whatever is not in mandate becomes responsibly of troop contributing
country (e.g. rape)
Who acted
- Case: UN to be held accountable, not Austria victims could not get compensation
for acts of national officers
- Control decisive criteria? what is effective control? (art. 7)
ECthR: Behrami and Saramati important
- UNMIK + KFOR
- Who had effective control?
- ECtHR: whether or not there was ultimate control and authority? Org. or MS?
- It was the SC that had ultimate authority and control over the troops partaking in both
missions
Nuhanovic and Mustafic
- Effective control of org, not state
- Criteria established: power to prevent damage
- State or UN? State exercised effective control
- Control is not enough, needs to be effective: overall context, instructions, wage +
power to prevent
What if no effective control? Is state then automatically responsible for everything the org is
not responsible for?
- Nuhanovic: if not effective control of org, then only look at effective control of states
- state responsibility?
- Dont need to check effective control of armed forces as they are acting for the state
- Possible Art. 8
- Dual attribution: org and state together responsible

3. There must be some loss or damages suffered by another state or IO as a result injury
- Defences
- Legal consequences:

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