I.B.D.

International Organization law

Prof. Marco Scarpati
University of Parma
A.Y. 2013-2014

Marco Scarpati
Degree

in law in Parma University

Professor of International Law in Parma
University
Prof. In International Human Rights Protection
(spec. In Child protection)
Barrister
President of ECPAT Italia
marcoscarpati@yahoo.it

Text book

for who will attend the lessons

From page 3 to
page 305

Our course
Introduction

on International law
Basic rules of International Organization law
Working groups on International economic
law millenium development goals
Reports on working groups
Discussion
Examination

on papers and part of the book

exams
13

dicembre 2013 ore 9.00 (special

for students will attend the lessons)
Winter 16 and 31 january 2014 9.00
Spring 11 april
9.00
Summer 6 june, 20 june
9.00
8 september 2014
9.00

In a normal world.

Meritocracy and equal opportunities

In our country

Choose your job: maybe to study

is not the best criterion

Growth rate

Life expectancy

Children mortality rate

statistics

statistics

World population

World by population

World population density

World popolation density

Population and development

10 busiest air travel routes of 2012

Population by age group

Better places to born

Hunger map of the world

Dimension of countries for size of

GDP

China GDP rate

Economic world

World GDP growth 2010

democracies

Child poverty rates

Diversity map

Diversity Tollerance map

Right to sexual orientation

Sexual orientation tollerance

Security treaty map

Felt beloved

Condition of mothers

Paid maternal leave

Number of researchers per million

inhabitants

Attitude welcome foreigners

Law system

Majority religion by country

Gepolitical problems

International Law
International law is a body of rules that govern
relations between states, functioning of international
institutions/organizations and rights and duties of
individuals.
International law covers every aspect of relations
between States from aviation to Xenophobia and
beyond.
However, we will focus on those aspects of
international law that are of direct relevant to
international Organizations and Int. Economic Law

A short definition

International law is the law of the so-called

international community.
community n., pl. communities. Abbr. com. 1.
A group of people living in the same locality and
under the same government. 2. A group of people
having common interests: the scientific community;
the international business community. 3.a. Similarity
or identity: a community of interests. b. Sharing,
participation, and fellowship.

Subjects of International law

Members of the international community are
subjects of International Law
Subjects have international legal personality:
capacity to have rights and duties under
international law.
Objects of international law do not have rights
and duties but are merely the object of subjects
rights and duties (e.g. a territory and the natural
resources within it)

Subjects of international law II

Subjects of international law relates to which entities

have legal capacities under international law and the
extent of that capacity in terms of competence to
perform certain acts:
Hold of rights and duties under international law;
Hold a procedural privilege of prosecuting claims
before an international tribunal;
Possess interests for which provision is made by
international law; and
Competence to conclude treaties with other States and
international organizations

Subjects of international law III

States
Public International Organizations (e.g. United Nations,
African Union, North Atlantic Organization, European
Union, Organization of American States etc).
Individuals: It is part of customary international law
that the obligations of international law bind individuals
directly regardless of law of their states.
Other Entities: An example of such other entity would
be the Holy See and the Vatican City, which enjoy the
status of a State and has international personality.
Other example: NGOs

States

Statehood is objective, not subjective. Recognition does

not bestow statehood.
A State is a state under international law (i.e. it has
international legal personality), if it meets certain basic
criteria.
Must have a territory
Must have a population.
Must have a government.
Must be sovereign, that is to say must be able to
exercise sovereign functions on the territory (e.g., be
able to exclude anyone else from claiming it
(defense), policing, administration (raise taxes), etc.).

International Organizations

International organization means public international organization

or governmental organization, that is to say an organization
created by sovereign states and whose functioning is regulated
by international law, not the law of any given country.
There are hundreds of IOs. Some operate at the global level (E.g.
UN, WTO, World Bank), others at the regional level (EC/EU,
OAS, NATO, ASEAN, AU).
Personality of IOs is limited to what is necessary to carry out the
assigned functions. E.g.. the UN or NATO must have the power
to conclude treaties with states to carry out their mission. Powers
are specified in the legal instruments of the organization
(establishing treaty (e.g. UN Charter) and decision of the
organization itself).

Individuals and Other

Individuals have certain (inherent) rights under international law (i.e.

human rights ) and certain duties (e.g. no to commit international
crimes: war crimes, crimes against humanity and the crime of
genocide). They have no international law-making powers (but can
definitively lobby governments and IOs to do so).
Individuals can act collectively
(NGOs). E.g. Amnesty International, medecins sans Nongovernmental organizations frontiers, WWF. There are several
thousands of NGOs. The legal status of these organizations is
regulated by the laws of the countries in which they operate.
Peoples (e.g. indigenous peoples)
Hybrid organizations (public/private): International Committee of the
Red Cross, International Union for the Conservation of Nature.

Sources of International Law

International

law has three primary sources

custom
international treaties
general principles of law.

Subsidiary

sources (i.e. means to ascertain the

content of law created by the primary sources)

Rulings of courts (mostly international)

The writings of international scholars

Article 38(1) ICJ Statute

international conventions, whether general or
particular, establishing the rules expressly
recognized by the contesting States;
(b) international custom, as evidence of a general
practice accepted as law;
(c) the general principles of law recognized by civilized
nations;
(d) judicial decisions and teachings of the most highly
qualified publicistssubsidiary means (Art. 59)
2. power to decide a case ex aequo et bono
(a)

Customs

Customary international law is the result of consistent

practice of a majority of states supported by the belief
that the practice is obligatory (opinio juris). Example: you
cannot use your territory in such a way as to cause harm
to other states; the territorial sea is 12 mile wide.
Customary international law is law for all states,
regardless of whether they participated in the formation of
the custom. A state is bound by customary international
law simply by virtue of being a state. Where do you look
to know what states practice is? You look at what states
do and say. Treaty making, unilateral declarations,
decisions within international organizations, acts.

Jus Cogens
Special

category of customary rules: jus

cogens.
Jus cogens are rules of international law to
which are considered so essential that they
can never be derogated. E.g. ban on torture,
slavery, genocide. Two states or more cannot
make a valid treaty making torture, slavery or
genocide legal.

Treaties
an international agreement concluded between
States in written form and governed by international
law, whether embodied in a single instrument or in
two or more related instruments and whatever its
particular designation.
- treaty, convention, protocol, covenant, charter,
statute, act, declaration, concordat, exchange of
notes, agreed minute, memorandum of agreement,
modus vivendi, or any other appellation
- central principle: consent to be bound

Treaties: Essential Vocabulary

full powers
signature (authentication, good faith)
ratification (domestic and international, Article 14 of VCLT)
acceptance, approval, accession
reservations, declarations
contracting state
state party
entry into force
deposit
multilateral, bilateral, law-making

Treaties: Interpretation

Vienna Convention on the Law of Treaties, articles

31 and 32
Art 31: general rules of interpretation

in good faith and with ordinary meaning, in context and in

light of its object and purpose
in addition to the (full) text, the context shall comprise:
agreements relating to the treaty
instruments made in connection with the treaty

also: subsequent agreements, subsequent practice, any

relevant rules of international law
special meanings if established

Article 32
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty (*) and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of Art 31, or to determine the meaning
when the interpretation according to Art 31:
a) leaves the meaning ambiguous or obscure; or
b) leads to a result which is manifestly absurd or
unreasonable.

International law and national law

In general, as long as a State carries out its obligations under international

law, how it does so is not the concern of International law, except in the area
of human rights where states have undertaken to make certain conduct such
as torture and genocide a crime punishable under national laws.
Not all states agree on the relationship between International Law and
National Law
Many states adhere to the superiority of international law over national law,
meaning that international law will prevail in the event of a conflict between
with national law.
Other states see International law and national law as two separate legal
systems and require formal incorporation of international laws into national
law by the legislature before they become operational in the countries.
However, from international perspective it is important for you to bear in mind
that international law is binding on all states.

General Principles

General principles of law are those principles

commonly found in the major legal systems of the
world. E.g.: ne bis in idem rule, or double jeopardy is
a general principle of law (criminal law) common to
all legal systems of the world. It is a source of
international law on its own right but it is resorted to
mostly when there is no applicable treaty or when
there is no practice or it is unclear or inconsistent
(which is rare).

International Order Based on

International

institutions
International norms
Habit (customs)
Some norms codified into international law
Common Principles of National Law

Factors Shaking Up International

Norms
End

of old international order (1950-60)

New subject (1970)
End of Cold War (1990)
Rapid shifts in economic participation and
status of some countries (e.g. China, India,
Brazil)
Information revolution
Others

International Organizations (IOs)

Intergovernmental

Regional IGOs
Global IGOs

Nongovernmental

Organizations (IGOs)
Organizations (NGOs)

Professional organizations
Economic/business orgs
Political orgs
Cultural orgs
Religious groups

United Nations
67

years old
More prominent since end of Cold War
World government not
Major purposes:

Conflict resolution (collective security)

Economic and social development

Created

to serve states needs

Designed for post-WWII world

UN Structure
General

Assembly all states

Security Council 5 great powers and 10
rotating seats
Socio-economic Council
Secretariat - office of Secretary General
Court of Justice
UN Programs
Autonomous agencies

UN structure

Security Council

5 great powers
(permanent) and 10
(temporary) rotating
seats
Maintain worlds security
Decisions binding on all
member states
Re security situations:
Define security threat
Choose a response
Enforce through
mandatory
directives/resolutions

Choosing Non-Permanent
Members of the Security Council
10

non-permanent members
9 votes needed to pass resolution: (no one of
the 5 permanents have to put the veto, so no
one of them have to vote no. Abstention is
possible)
5 new non-permanent members chosen every
year for a 2-year cycle
Each region of the world represented by the 5
new members

Proposed Changes of the Security

Council
Japan

and Germany as permanent members

concerns?
European seat?
India?
Brazil?
An Islamic country?
Expand Security Council to 24 Members
New permanent members?
Semipermanent member

World Region in UN
Western

Europe
Eastern Europe and OLD USSR territories
Middle East
East Africa
West Africa
EAPRO (East Asia, pacific and Oceania)
South Asia
Latin America (Central and southern America)

General Assembly

All states are members (currently 192)

Functions and Powers :
Control of finances for UN programs and ops (e.g.
peacekeeping)
Pass resolutions merely advisory if not convention signed
and ratificated
Elect members of UN agencies
Coordinates UN agencies and programs
Make-up of GA changed post-colonialism
Often venue for concerns/complaints of developing countries

Secretariat
Secretary-General

is the top of the administration

Nominated by SC, approved by GA
Ban Ki-Moon from South Korea 2007
Bureaucracy for administering UN policy and
programs
Develops international civil service system
diplomats and bureaucrats with allegiance to world
SG serves as third party, good offices of UN
Special status of staff members

The list of Secretary-General

Trygve

Lie, Norway (1946-1952)

Dag Hammarskjold, Sweden (1953-1961)
U Thant, Burma (1961-1971)
Kurt Waldheim, Austria (1972-1982)
Javier Perez de Cuellar, Peru (1982-1992)
Boutros Boutros-Ghali, Egypt (1992-1996)
Kofi Annan, Ghana (1997-2006)
Ban Ki-Moon, South Korea (2007-)

UN Programs
Purpose

- advance economic development and

social stability
More than 10
Funded by GA and donations
Examples:

UNICEF (Childrens Fund poor countries)

UNHCR (Refugees protect and assist)
UNDP (Development in poor countries)
Administrative programs such as UN System

Autonomous Agencies

About 20
Ties to UN but not run by UN
Specialized technical organizations
IAEA (Atomic Energy Agency)
WHO
UNESCO
WIPO
WTO, IMF, World Bank
In Italy: FAO, WFP, IFAD, UNICRI, ILO School

Peacekeeping

The UNs own forces (borrowed)

Calm regional conflicts
Neutral role
Funds from General Assembly, control by Security
Council
Size and cost of peacekeeping forces almost tripled
1997 to 2002
Can be observers (unarmed) or peacekeepers (armed)
Dont MAKE peace, KEEP it
Currently 18 different missions in Africa, the Caribbean,
Middle East, Europe and Asia

Who Pays: top 10

United States - 27%

Japan - 19%
Germany - 9%
United Kingdom - 7%
France - 7%
Italy - 5%
Canada - 3%
Spain - 3%
China - 2%
Netherlands - 2

Peace enforcement