Palacky University Olomouc Faculty of Law

1. Palacky University Olomouc Faculty of Law • Law of International Organisations • International Organizations and the Law of Treaties - • 19.04.2011 Support of the foreign language profile of law tuition at the Faculty of Law inOlomouc CZ.1.07/2.2.00/15.0288

2. Today´s program The 1986 VCLTSIO : ... „Considering the fundamental role of treaties in the history of international relations, Recognizing the consensual nature of treaties and their ever-increasing importance as a source of international law, ...“ Exchange of Letters between the European Union and the Government of Kenya on the conditionsand modalities for the transfer of persons suspected of having committed acts of piracy anddetained by the European Union-led naval force (EUNAVFOR), and seized property in thepossession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer Treaty making by IGOs Law of Treaties Issues concerning constituent documents of IGOs Reservations / Revision / Withdrawal and termination ...

3. Do IGOs have the capacity to conclude treaties? Yes, however, If no explicit competence in constituent document, where does this capacity comes from? Capacity vs. Competence Capacity = abstract, general capability of sth. Capacity derives from general IL Competence = concrete / specific Competence (or power) derives from the rules of the organization (constituent documents) Practice Capacity from general IL / competence to conclude specific treaties derives from constituent documents

4. Legal capacities/powers of IGOs? ICJ (1986): Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion. Preliminary objections: „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.“ Legal capacities/powers limited by: Principle of speciality and Principle of conferred explicit / implicit (implied powers) powers No „Kompetenz-Kompetenz“

5. ICJ Reparations for Injuries Case (at 180): „… the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specifiedor implied in its constituent documents…“ Two ways: Explicitly conferred powers Stated in the founding (constituent) agreement establishing the IGO BUT:Powers are not limited to what conferred by constituent treaty, but extend to what necessary to perform functions effectively Implicitly conferred powers Derived from the object and purpose of the IO as stated in the founding document „Implied powers doctrine“ e.g. UN (Reparations for Injuries, ICJ 1949)

6. The 1986 Vienna Convention • Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLTSIO, done at Vienna on 21 March 1986) • Prepared by the ILC • Not entered into force yet • Why is then VCLTSIO relevant? • Many of its rules are based on the principles governing law of treaties in generall (as mirrored in the Vienna Convention on the Law of Treaties 1969) Article 6 Capacity of international organizations to conclude treaties The capacity of an international organization to conclude treaties is governed by the rules of thatorganization. • Some IGOs do not have treaty making powers! • Benelux

7. Concrete examples? • few explicit provision on treaty-making competence • United Nations Charter: • Art. 43 • Art. 57 and 63 • Art. 105 • European Union • Art. 216-219 TFEU / Art. 37 TEU • Extensive practice since the Amsterdam Treaty

8. Art. 43 UN Charter All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. .... The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

9. Article 63 UN Charter The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly.

10. EU Article 37 (ex Article 24 TEU) The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter. TITLE VINTERNATIONAL AGREEMENTS Article 216 TFEU 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. 2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.

11. Who is bound? Question of competence IGOs = cooperation form of States Who is bound by a treaty concluded by IOGs? IGOs itself only? Member States? IGO and the Member States? Art. 216(2) TFEU „Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.“

12. Mixed agreements Both IGO and its MS become parties to the treaty Reason: sometimes the topic of the treaty falls partly within the powers of the IGO and partly the MSs Example: EU and fishery Problem: „incomplete mixed agreements“ Some MS of IGO become parties to the treaty, some not

13. Agreements IGO-IGO Can an IGO become a member of another IGO? E.g. EU member in WTO / FAO / the EBRD Is this possible under the rules of the „receiving“ IGO? EU and ECHR