International Organizations

1. International Organizations Prof. Mark E. Wojcik

2. International Organizations • This PowerPoint presentation is being shared only with those students at the University of Lucerne Faculty of Law who took the International Organizations Course during the Spring 2009 Semester. • Authorized use of this PowerPoint is limited to those students. • A printed copy of these slides (or notes taken from them) may be used during the final exam.

3. Textbook Michael P. Scharf, The Law of International Organizations: Problems and Materials (2d ed., Carolina Academic Press 2007). A copy of this text will be in the university law library.

4. Additional Readings on International Organizations (1) • José E. Alvarez, International Organizations as Law-Makers (Oxford Univ. Press 2005). • C.F. Amerasignhe, Principles of the Institutional Law of International Organizations (2d ed., Cambridge Univ. Press 2005) • Malcolm N. Shaw, International Law 1282-1331 (6th ed., Cambridge Univ. Press 2008) (Chapter 23: International Institutions)

5. Additional Readings on International Organizations (2) • Jan Klabbers, An Introduction to International Institutional Law (Cambridge Univ. Press 2002). • Anna-Karin Lindblom, Non-Governmental Organisations in International Law (Cambridge Univ. Press 2005). • August Reinisch, International Organizations Before National Courts (Cambridge Univ. Press 2000).

6. Background Reading Michael P. Scharf, The Law of International Organizations (2d ed., Carolina Academic Press 2007). • Pages 5-20 [United Nations] • www.un.org • www.unog.ch • Pages 20-50 [Excerpts from the Restatement (Third) of the Foreign Relations Law of the United States] • Introductory Note • Section 102 • Section 111 • Section 114 • Section 115

7. International Organizations Reader • The reader for this course has been put online at http://ssrn.com/abstract=1371039

8. United Nations

9. Six U.N. Organs • Security Council • Trusteeship Council • Economic and Social Council • General Assembly • Secretariat • International Court of Justice

10. Voting in the General Assembly • Article 18 • Each member of the General Assembly shall have one vote. • Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions. • Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.

11. If We Were to Create a New International Organization . . . Present Voting Rules in the U.N. General Assembly Possible Options for a New International Organization? • One member, one vote • Certain categories require 2/3 vote • Otherwise simple majority • Consensus? • Base votes on population? • Base votes on financial contributions to the budget? • Should we create a bicameral international organization?

12. What else would be different in a new international organization? • Membership in the General Assembly? • Security Council? • Trusteeship Council? • International Court of Justice?

13. Some Legal Aspects of International Organizations

14. International Organizations • The Legal Personality of International Organizations • Constitutions of International Organizations as Treaties • Membership • Powers of International Organizations • Law-Making By International Organizations • Applicable Law • Responsibilities of International Organizations • Member State Liability for Actions of International Organizations • Accountability and Good Governance • Privileges and Immunities of International Organizations and Their Representatives • Dissolution • Succession

15. 1. The Legal Personality of International Organizations

16. Legal Personality • International Law Commission Draft Articles on the Responsibility of International Organizations, art. 2: “an organisation established by a treaty or other instrument governed by international law and possessing its own legal personality.”

17. Legal Personality • Personality under international law • Personality under domestic law

18. Legal Personality • International Court of Justice decision in Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 179: • The U.N. members, “by entrusting certain functions to [the United Nations], with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.”

19. Legal Personality • International Court of Justice decision in Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 185: • The “fifty states, representing the vast majority of the members of the international community, had the power in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognised by them alone.”

20. Legal Personality - Domestic • Many constitutions of international organizations provide that the organization should have personality in domestic law to enable it to (for example): • Contract for goods or services • Acquire or dispose of property • Institute legal proceedings in local courts • Have the legal capacity to exercise its functions

21. Legal Personality - Domestic • U.N. Charter art. 104: • The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.

22. Legal Personality • To say that an international organization has legal personality does not in itself determine the full scope of what that personality entails. • “The subjects of international law in any legal system are not necessarily identical in nature or in the extent of their rights, and their nature depends on the needs of the community.” 1949 I.C.J. at 330

23. Legal Personality • Legal personality should be recognized by members of the organization (and host nations), but must it also be recognized by non-members?

24. 2. Constitutions of International Organizations as Treaties

25. Constitutions • Constituent instruments of international organizations have a dual nature: • They set forth the structure • They are treaties between members

26. ICJ Advisory Opinion • “The constituent instruments of international organisations are also treaties of a particular type; their object is to create new subjects of international law endowed with a certain autonomy, to which the parties entrust the task of realising common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organisation created, the objectives which have been assigned to it by its founder, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.” Legality of the Use of Nuclear Weapons, 1996 I.C.J. at 74-75.

27. Interpreting the Constitution (the treaty establishing the organization) • The character of the constitution/treaty (which is conventional and at the same time institutional) • The nature of the organization created • The objectives assigned to the organization • The importance of effective performance of the functions of the organization • The organization’s own practice

28. 3. Membership

29. Membership • (1) The membership of an international organization consists of the states (and other entities) that become members in accordance with provisions of the organization’s constitution. • (2) The organization itself decides questions as to representation of a member state (or entity). • (3) The organization itself decides questions as to succession of a state’s membership.

30. 4. Powers of International Organizations

31. Powers of International Organizations • International organizations cannot exercise general powers (as can sovereign nations). • International organizations are governed by the principle of speciality.

32. Powers of International Organizations • International organizations “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.” Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 78-79.

33. Powers of International Organizations • Powers may be express (in the constituent instruments) • Powers may be implied (by the purpose for which the organization was established, and by state practice)

34. Powers of International Organizations • “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.” Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66, 78-79.

35. Powers of International Organizations • Example: ICJ held that the General Assembly could validly establish an administrative tribunal even without express power to do so in the U.N. Charter. Effect of Awards of Compensation Made by the U.N. Administrative Tribunal, 1954 I.C.J. 47. • But note that any attempts to exercise powers in contravention of the U.N. Charter would be prohibited.

36. Powers of International Organizations • Is the action one expressly authorized by the constituent instrument? • Is the action inconsistent with an express power? • Is the action one “necessarily intended” by the member states when they established the organization?

37. 5. Law-Making By International Organizations

38. Law-Making • Treaty Negotiations • For the organization • For the members • For non-members • Dispute Settlement by Judicial (and Quasi-Judicial) Bodies • Resolutions • Binding? • Non-binding?

39. Law-making (Treaties) • Can international organizations conclude treaties? • Article 6 of the Vienna Convention on the Law of Treaties between States and International Organizations: “The capacity of an international organization to conclude treaties is governed by the rules of that organisation.”

40. Law-making (Treaties) • According to the International Law Commission the “rules of the organization” include • Constituent instruments (treaty); • Relevant decisions; • Relevant resolutions; and • Established practices of the organization.

41. Law-Making • Dispute Settlement by Judicial (and Quasi-Judicial) Bodies • Examples • International Court of Justice • International Criminal Court • International Criminal Tribunal for the Former Yugoslavia (ICTY) • International Criminal Tribunal for Rwanda (ICTR) • International Tribunal for the Law of the Sea (ITLOS) • World Trade Organization Dispute Settlement Panel Decision

42. Law-Making • What is the effect of an international judicial decision? • Does it bind the states? • Does it bind the organization? • Does it bind other member states? • Does it bind non-member states? • Does it bind individuals?

43. Law-Making • Resolutions • Binding? • On members? • On non-members? • Non-binding? • Do non-binding resolutions have any legal effect? • If not, why do countries and organizations make these non-binding resolutions?

44. 6. Applicable Law

45. Applicable Law - International • The constituent instruments of international organizations are generally interpreted by “international law” • If the international organization entered into a treaty relationship with a particular state (such as a headquarters agreement), that agreement would also generally be interpreted by international law. • Possible issues: existence, constitution, status, membership, representation

46. Applicable Law - Domestic • Some issues may be governed by domestic (national) law • Examples • Purchase of property • Equipment lease • Employment law?

47. International Organizations • The Legal Personality of International Organizations • Constitutions of International Organizations as Treaties • Membership • Powers of International Organizations • Law-Making By International Organizations • Applicable Law • Responsibilities of International Organizations • Member State Liability for Actions of International Organizations • Accountability and Good Governance • Privileges and Immunities of International Organizations and Their Representatives • Dissolution • Succession

48. 7. Responsibilities of International Organizations

49. Responsibilities • If you create a new organization with legal personality, the actions of that organization may carry responsibilities. • If the organization harms a member state, the organization should be called upon to remedy that harm. • If a member state harms the organization, the member state should be called upon to remedy that harm.

50. Responsibilities • ICJ: There is an “undeniable right of the organization to demand that its members shall fulfill the obligations entered into by them in the interest of the good working of the organization.” 1949 I.C.J. at 184.