Professional Documents
Culture Documents
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
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
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)
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
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?
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
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
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
- 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
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
Seminar 6 responsibility IO
Exam:
law collections, slides, required readings
75% case study and 25% open questions
Case law important link to principles
International responsibility
3. There must be some loss or damages suffered by another state or IO as a result injury
- Defences
- Legal consequences: